United States District Court, S.D. Georgia, Augusta Division
RANDAL HALL, CHIEF JUDGE
the Court are motions for partial summary judgment from
Plaintiff BITCO General Insurance Company ("BITCO")
(docs. 57, 59) and Defendants Grange Indemnity Insurance
Company and Grange Mutual Casualty Company
("Grange") (doc. 60). The Clerk has given the
opposing parties notice of the summary judgment motion and
the summary judgment rules, of the right to file affidavits
or other materials in opposition, and the consequences of
default. (Doc. 61.) Therefore, the notice
requirements of Griffith v. Wainwright, 772 F.2d
822, 825 (11th Cir. 1985) (per curiam), have been satisfied.
The matters have been fully briefed and are ripe for
24, 2013, Defendant Edward Kelluem was returning to G&H
Timber and Harvesting ("G&H") after unloading a
shipment of timber. (Compl., Doc. 1, ¶ 52.) As Kelluem
began to cross a railroad, the tractor he was driving
collided with a locomotive operated by Defendants Charles
Nicholas Branson and Calvin "Ricky" Deloach.
(Id.) The tractor belonged to Defendant Frank Powell
and was insured by Grange. (Holt Decl., Doc. 57, Attach. 4, ¶
10; Doc. 1, Attach. 3, at 2.) Powell had agreed to let
G&H use the tractor to haul lumber and G&H would pay
Powell according to the miles the tractor was driven and the
amount of lumber hauled. (Holt Decl., ¶ 10.) G&H, in
turn, assigned the tractor to Kelluem. (Id.) G&H
had business auto and commercial insurance policies with
BITCO. (Olson Decl., Doc. 57, Ex. 7 ¶ 3.)
and Deloach each brought a separate lawsuit against Kelluem,
Powell, and G&H in Bibb and Burke County, Georgia (the
"State Action") . (Doc. 57, Attach. 2, at 1; Doc.
57, Attach. 3, at 1.) Branson and Deloach claimed Kelluem
negligently failed to yield at a railroad crossing and that
G&H was vicariously liable for both Kelluem and Powell.
(Doc. 57, Attach. 2, at 3; Doc. 57, Attach. 3, at 5.)
retained counsel to defend Kelluem and Powell, and BITCO
retained counsel for G&H, subject to a reservation of
rights. (Compl. ¶¶ 74-75; Olson Decl., ¶ 9.)
On March 31, 2015, BITCO contacted Grange requesting that
Grange defend G&H and assume the associated costs but
Grange refused. (Compl. ¶ 90.) On April 22, 2016,
Branson's counsel contacted BITCO and claimed that
Kelluem and Powell are insureds under BITCO's policy.
(Doc. 82, Attach. 4, at 1.)
initiated this action seeking a declaratory judgment
establishing that (a) Grange has a duty to defend and
indemnify G&H in the State Action and therefore is
obligated to reimburse BITCO for the costs it has incurred
defending G&H thus far; and (b) BITCO has no duty to
defend and indemnify Kelluem or Powell in the State Action.
(Compl. ¶ 185.) Presently, Grange and BITCO have filed
cross-motions for partial summary judgment on the issue of
whether Grange has a duty to defend G&H and reimburse
BITCO. (Docs. 59, 60.) Additionally, BITCO has filed a
separate motion for partial summary judgment on the issue of
whether it has a duty to defend and indemnify Kelluem or
Powell. (Doc. 57.)
motion for summary judgment will be granted if there is no
disputed material fact and the movant is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a). The Court must view
facts in the light most favorable to the non-moving party and
draw all inferences in its favor. Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). The movant initially bears the burden of proof and
must point to evidence on file which demonstrates the absence
of a disputed material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The movant must also
show no reasonable jury could find for the non-moving party
on any of the essential elements. Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993) . If the
movant carries its burden, the non-moving party must come
forward with significant, probative evidence showing there is
a material fact in dispute. Id., at 1116. The
non-moving party cannot simply rely on its pleadings and must
respond with affidavits or other forms provided by Federal
Rule of Civil Procedure 56. Id. at 1116 n.3.
Grange's Duty to Defend G&H
its motion, Grange seeks to invoke two separate exclusions
precluding coverage. Grange argues that G&H is not
covered by its policy since Kelluem was using Powell's
tractor as a "for hire motor carrier" and was
hauling cut trees. For its part, BITCO disputes whether the
exclusions Grange cites are part of its policy. Additionally,
BITCO claims that the policy's exclusions do not apply.
Grange's AutoAccel Eligibility Document
claims that the exclusions listed in the "AutoAccel
Eligibility" document ("Eligibility Document")
were included in Powell's application, which was
expressly incorporated into the policy. The Eligibility
Document excludes coverage for risks including "
[v]ehicles hauling . . . cut trees [and] logging" and
"[v]ehicles operated as a 'for hire motor
carrier' that require Hired Auto Liability
Coverage." (Doc. 60-2, at 66.) BITCO responds that the
Eligibility Document was a guideline for Grange's agents
and not part of Powell's application. A writing may be
incorporated into an agreement by reference or physical
attachment. West v. Rudd, 249 S.E.2d 76, 79 (Ga.