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Silva v. Liberty Mutual Fire Insurance Co.

Court of Appeals of Georgia, First Division

November 14, 2017

GLORIA SILVA
v.
LIBERTY MUTUAL FIRE INSURANCE COMPANY.

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

          Barnes, Presiding Judge.

         Gloria Silva appeals the trial court's order granting summary judgment in favor of Liberty Mutual Fire Insurance Company ("Liberty Mutual") on Silva's uninsured / underinsured motorist ("UM") claim, which arose in the context of Silva's personal injury suit to recover for injuries sustained in an automobile collision. In granting summary judgment to Liberty Mutual, the trial court ruled that the uncontroverted evidence showed that Silva had failed to notify Liberty Mutual promptly of the collision or of her personal injury suit, which resulted in the forfeiture of her UM coverage as a matter of law. For the reasons discussed more fully below, we affirm.

         Summary judgment is proper if the pleadings and evidence "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." OCGA § 9-11-56 (c). Following a trial court's grant of summary judgment, we "conduct a de novo review, construing all reasonable inferences in the light most favorable to the nonmoving party." Bank of North Ga. v. Windermere Dev., 316 Ga.App. 33, 34 (728 S.E.2d 714) (2012).

         So viewed, the record shows that Silva was the named insured of a Liberty Mutual personal automobile policy that provided UM coverage of $100, 000 per person / $300, 000 per accident for bodily injury and $50, 000 per accident for property damage. As a condition applicable to UM coverage, the policy provided:

PART E- DUTIES AFTER AN ACCIDENT OR LOSS
We have no duty to provide coverage under this policy unless there has been full compliance with the following duties:
A. We must be notified promptly of how, when and where the accident or loss happened. Notice should also include the names and addresses of any injured persons and of any witnesses. . . .
C. A person seeking Uninsured Motorists Coverage must also: . . . Promptly send us copies of the legal papers if a suit is brought.

         The policy further stated: "No legal action may be brought against [Liberty Mutual] until there has been full compliance with all the terms of this policy."

         On September 28, 2010, Silva was a passenger in a car involved in a motor vehicle collision with James Glover. The car that Silva owned was not involved in the collision. Approximately two years later, on September 21, 2012, Silva filed a personal injury suit against Glover.[1] Silva dismissed her lawsuit against Glover on March 27, 2013, but she re-filed her suit on September 20, 2013 (the "renewal suit").

         Glover had liability coverage with Allstate Insurance Company of $50, 000 per person / $100, 000 per accident applicable at the time of the collision. On March 27, 2015, Silva settled with Glover for $36, 950, the remaining amount of liability coverage available under Glover's Allstate policy because of prior settlements that Glover had reached with other individuals involved in the collision. Following the settlement, on May 4, 2015, Silva amended her complaint in the renewal suit to include a claim that the automobile collision was covered by her UM coverage provided by Liberty Mutual. The next day, Liberty Mutual was served with a copy of the amended complaint. Silva had not previously notified Liberty Mutual of the collision or the lawsuits.

         Liberty Mutual answered, raising the defense that Silva had not complied with her duties specified in her insurance policy, and filed a cross-claim against Glover. Liberty Mutual later filed a motion for summary judgment, contending that the uncontroverted evidence showed that Silva did not notify Liberty Mutual that an accident had occurred until four years and seven months after the September 2010 automobile collision, and did not notify Liberty Mutual of any lawsuits until eighteen months after she filed the September 2013 renewal suit. Consequently, Liberty Mutual argued that Silva failed as a matter of law to comply with the notice provisions contained in her insurance policy, thereby entitling Liberty Mutual to deny UM coverage for the collision.

         Opposing the motion for summary judgment, Silva responded that her counsel had been unaware that Silva might need to utilize UM coverage until her counsel learned in March 2015 that eight other individuals involved in the collision had asserted claims against Glover under his Allstate policy, such that there was only $36, 950 in coverage still available to cover Silva's losses arising from the collision. Silva further responded that upon learning of the limited liability coverage still available under the Allstate policy and settling with Glover for that amount, her counsel obtained a copy of the Liberty Mutual policy and thereafter notified Liberty Mutual of the automobile collision by serving the company with the amended complaint. As such, Silva argued that there was a jury issue regarding whether she "promptly" notified Liberty Mutual of the collision and lawsuit under the notice provisions of her Liberty Mutual policy. Silva further argued that the notice provisions of ...


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