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Auto-Owners Insurance Co. v. Hale Haven Properties, LLC

Court of Appeals of Georgia, Second Division

June 1, 2018

AUTO-OWNERS INSURANCE COMPANY
v.
HALE HAVEN PROPERTIES, LLC; and vice versa.
v.
BANK OF AMERICA N.A. et al
v.
HALE HAVEN HALE HAVEN PROPERTIES, LLC, et al.
v.
HALE HAVEN PROPERTIES, LLC
v.
BANK OF AMERICA, N.A. et al.

          MILLER, P. J., ANDREWS and BROWN, JJ.

          Miller, Presiding Judge.

         These four related appeals stem from a lawsuit filed by Hale Haven Properties, LLC, against Auto-Owners Insurance Company, Bank of America, N.A., and Regions Bank, Inc. (Bank of America and Regions Bank are collectively, the "Bank Appellants"), to recover payment on an insurance claim for damage to commercial property.

         In the first two cases, A18A0132 and A18A0134, Auto-Owners appeals from the trial court's denial of its motion for summary judgment on Hale Haven's claims for breach of contract, reformation, enforcement of the check, bad faith, and attorney fees, and Hale Haven cross-appeals from the trial court's denial of its summary judgment motion against Auto-Owners. As it pertains to Auto-Owners' appeal, we conclude that although genuine issues of material fact remain on Hale Haven's reformation claim, Hale Haven cannot show that Auto-Owners breached the insurance policy as written, Hale Haven's enforcement-of-the-check claim was untimely, and Hale Haven's claims for bad faith damages and attorney fees fail as a matter of law. Thus, the trial court correctly denied summary judgment on the reformation claim but erred in denying summary judgment in Auto-Owners' favor on the remaining claims. We also conclude that the trial court correctly denied Hale Haven's motion for summary judgment because a jury issue exists regarding whether Hale Haven was negligent in its alleged failure to obtain and read the insurance policy, so as to prejudice Auto-Owners.

         In the next two appeals, A18A0133 and A18A0147, the Bank Appellants appeal from the trial court's denial of their motions for summary judgment against Auto-Owners and Hale Haven, respectively, and Hale Haven cross-appeals from the trial court's denial of its summary judgment motion against the Bank Appellants. Regarding the Bank Appellants' appeal against Auto-Owners, we vacate the trial court's denial of summary judgment and remand for consideration of whether Auto-Owners' cross-claim was time-barred. As to the Bank Appellants' appeal against Hale Haven, we conclude that the trial court properly denied summary judgment because a jury issue exists regarding the Bank Appellants' commercial reasonableness in accepting and paying on the insurance check. We also determine that the trial court properly denied summary judgment on Hale Haven's cross-appeal against the Bank Appellants because the Bank Appellants are not foreclosed from asserting the defense of commercial reasonableness.

         Accordingly, we affirm in part, reverse in part, vacate in part, and remand for further proceedings consistent with this opinion.

         "On appeal from a grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom most favorably to the nonmoving party." (Citation omitted.) American Mfg. Mut. Ins. Co. v. E A Technical Svcs., Inc., 270 Ga.App. 883 (608 S.E.2d 275) (2004).

         So viewed, the record shows that Hale Haven sold a shopping center to VPS Enterprises, LLC in 2010, while maintaining a mortgagee interest in the property. As part of the sale, Hale Haven and VPS entered into a security agreement, which required VPS to maintain insurance coverage on the property. The security agreement also provided that in the event of a "loss under any such policy of insurance, " Hale Haven was authorized to apply the insurance proceeds to the mortgage debt on the property, which was $3, 000, 000 at the time of the sale.

         In 2011, an agent for VPS, Dennis Pack, procured insurance coverage for the property from Auto-Owners, and asked for Hale Haven to be named as the mortgagee on the policy. The policy application provided for both property coverage and general liability coverage, and, on the application, Hale Haven was named as a mortgagee for both types of coverage. An underwriter with Auto-Owners approved this application. However, when the formal one-year insurance policy was issued, Hale Haven was only listed as a mortgagee on the general liability section and not the property coverage section. This same insurance policy was automatically renewed in 2012.

         In 2013, VPS made a property insurance claim to Auto-Owners, stemming from damage after a hailstorm.[1] On the "proof of loss" form, Hale Haven was listed as having an interest in the property. In November 2013, Auto-Owners issued a check as payment on the claim to "VPS ENTERPRISES LLC AND HALE HAVEN PROPERTIES LLC, " in the amount of $465, 346.96, and Auto-Owners gave that check to Pack. Auto-Owners added Hale Haven to the check because it had conducted a title search on the property and learned that Hale Haven was a mortgagee.

         On November 25, 2013, Pack formed a limited liability company named "vps enterprises and hale haven properties llc, " and on the company's articles of organization, he was listed as the sole registered agent and organizer for the company. An IRS employer identification number was assigned to the company, and the company was also issued a certificate of organization from the State of Georgia.

         The next day, Pack presented these business documents at a Regions Bank branch and he opened a business account named "VPS ENTERPRISES AND HALE HAVEN." Pack deposited the insurance check into this new account, but because he did not endorse the check, Auto-Owners requested that Regions Bank rescind the deposit. Regions Bank complied, and Auto-Owners reissued the check in the same amount, again making it payable to "VPS ENTERPRISES LLC AND HALE HAVEN PROPERTIES LLC." In depositing this new check, Pack signed his name on the reverse and printed, "VPS ENTERPRISES LLC HALE HAVEN PROPERTIES LLC." Bank of America, with whom Auto-Owners had its account, was the drawee (or payor) bank. After the funds were deposited by Bank of America into the Regions Bank account Pack had opened, he wired $450, 000 to an international checking account and he appears to have later left the country.

         Hale Haven only became aware that the property had been damaged when a roofing contractor sought payment for repairs that had been performed on the property. When Hale Haven visited and inspected the property, it found the repairs to be incomplete and contacted Auto-Owners. Auto-Owners, however, informed Hale Haven that it had already issued full payment on a hail damage claim made by VPS, that Hale Haven was named on the check, and that Auto-Owners was not responsible for any improper signature on that check. VPS ultimately defaulted on its mortgage payments for the property, and Hale Haven repurchased it at foreclosure for $1, 200, 000, and then resold it at a loss for approximately $800, 000.

         After receiving no payments from the insurance claim, Hale Haven filed suit in Fulton County State Court in June 2014, alleging breach of contract against Auto-Owners and conversion against Bank of America.[2] Hale Haven dismissed this state court case without prejudice in September 2015. Then, less than five months later, Hale Haven filed a renewal action in the Fulton County Superior Court, pursuant to OCGA § 9-2-61. In addition to its initial breach-of-contract claim against Auto-Owners, Hale Haven requested reformation of the insurance policy, and added claims for enforcement of the check under OCGA § 11-3-309; bad faith damages and attorney fees under OCGA § 33-4-6 for a refusal to pay the insurance claim; and attorney fees under OCGA § 13-6-11 for stubborn litigiousness. Hale Haven also added Regions Bank to the lawsuit, suing them for conversion of the check. Auto-Owners then filed a cross-claim against the Bank Appellants, arguing that they "failed to comply with commercially reasonable and necessary steps" before approving payment on the check.

         Auto-Owners and the Bank Appellants moved for summary judgment on all the claims filed against them. Hale Haven also filed a motion for partial summary judgment on its conversion claim against the Bank Appellants and on its claim that Auto-Owners was obligated to pay Hale Haven the amount of the insurance proceeds. After a hearing, the trial court denied all the parties' summary judgment motions, and these appeals followed.

         The threshold question for each of Hale Haven's claims against Auto-Owners is whether they were timely under the renewal statute in conjunction with the two-year limitation period in the insurance policy.

OCGA § 9-2-61 (a) permits a plaintiff to dismiss and recommence a suit within the original applicable period of limitation or within six months after the dismissal, whichever is later. If the statute of limitation has not run, the plaintiff may add new parties and new claims to the refiled action; however, if the statute of limitation has expired, the plaintiff is limited to suing the same defendants under the same theories of recovery. The new petition must be substantially the same as the original as to the essential parties. The renewal statute may not be used to suspend the running of the statute of limitation as to defendants different from those originally sued.

(Citations and punctuation omitted.) Ward v. Dodson, 256 Ga.App. 660, 661 (569 S.E.2d 554) (2002). The insurance policy provides: "No one may bring a legal action against us under this [Commercial Property] Coverage part unless . . . [t]he action is brought within 2 years after the date on which the direct physical loss or damage occurred."

         Here, Hale Haven's original action was timely filed in state court in June 2014, well within the two-year limitation period provided in the insurance policy. Because this instant case was filed within six months after Hale Haven dismissed its initial lawsuit - the time frame in the renewal statute - the limitation period in the insurance policy does not provide a time-bar to any claims properly brought in the renewal action. Blue Ridge Ins. Co. v. Maddox, 185 Ga.App. 153 (1) (363 S.E.2d 595) (1987).[3] The timeliness of each claim against Auto-Owners under the renewal statute will be discussed in turn.

         Case No. A18A0132

         1. Auto-Owners argues that the trial court erred in denying its summary judgment motion against Hale Haven because (1) Hale Haven's renewal action was untimely filed after the two-year limitation period in the insurance policy; and (2) Hale Haven's claims for breach of contract, reformation, enforcement of the check, bad faith, and attorney fees all fail as a matter of law. Although we conclude that the reformation claim was properly brought in the renewal action, and genuine issues of material fact remain as to this claim, the trial court erred in its denial of summary judgment as to all of Hale Haven's remaining claims against Auto-Owners.

         (a) Breach of the Insurance Policy

         Auto-Owners contends that it did not breach the insurance policy as written and that Hale Haven is not entitled to reformation of the insurance policy as a matter of law. Although we determine that Hale Haven cannot demonstrate that Auto-Owners committed a breach on the insurance policy as written, there are genuine issues of material fact regarding whether the policy should be reformed to name Hale Haven as an additional insured mortgagee on the property coverage part of the insurance policy.

         (i) Breach of contract on the policy as written

         At the outset, we note that this claim is substantially the same as the breach-of-contract claim asserted in the original state court complaint, and no timeliness issue arises here under the renewal statute. Soley v. Dodson, 256 Ga.App. 770, 772 (569 S.E.2d 870) (2002) ("To suspend the running of the statute of limitation in a renewal action, the cause of action must be substantially the same as in the original action.") (citation and footnote omitted).

         "Construction of an insurance policy is governed by the ordinary rules of contract construction, and when the terms of a written contract are clear and unambiguous, the court is to look to the contract alone to find the parties' intent." (Citation omitted; emphasis supplied.) Ins. Co. of Pennsylvania v. APAC-Southeast, Inc., 297 Ga.App. 553, 557 (677 S.E.2d 734) (2009); Infinity Gen. Ins. Co. v. Litton, 308 Ga.App. 497, 500 (2) (707 S.E.2d 885) (2011). "Where the contractual language is explicit and unambiguous, the court's job is simply to apply the terms of the contract as written, regardless of whether doing so benefits the carrier or the insured." (Citations omitted.) Georgia Farm Bureau Mut. Ins. Co. v. Smith, 298 Ga. 716, 719 (784 S.E.2d 422) (2016). "The proper construction of a contract, and whether the contract is ambiguous, are questions of law for the court to decide." (Citation omitted.) APAC-Southeast, supra, 297 Ga.App. at 557.

         The text of the insurance policy is neither unclear nor ambiguous. The property coverage section provides, "SECURED INTERESTED PARTIES: None." Indeed, Hale Haven is not named anywhere in this section of the policy. Hale Haven's reliance on the testimony of the insurance agent and an underwriter regarding their interpretation of the policy is unavailing; when we are presented with clear and unambiguous contract terms, "we enforce [those] terms as written and do not look elsewhere to assist in the contract's interpretation." (Citation omitted.) Donchi, Inc. v. Robdol, LLC, 283 Ga.App. 161, 166 (2) (640 S.E.2d 719) (2007). Therefore, as a matter of law, Hale Haven does not show that Auto-Owners breached a contractual obligation with regard to the property loss at issue, based on the policy as written.[4]

         (ii) Reformation

         First, under our Supreme Court precedent, the reformation claim was timely. In Birmingham Fire Ins. Co. of Pa. v. Commercial Transp., Inc. 224 Ga. 203 (160 S.E.2d 898) (1968), the insured sued its carrier on the insurance policy within the policy's 12-month limitation period, dismissed the action, and then brought a renewal action for reformation less than six-months later. Noting that the appellee "was seeking to recover for the same loss under the same policy, " id. at 204 (1), the Court deemed the renewal action timely under the renewal statute, even though the 12-month limitation period in the policy had since elapsed. Id. Therefore, we similarly conclude that Hale Haven's reformation claim was properly brought in its renewal action.[5]

         Having found the claim timely, we now determine whether a jury issue exists as to reformation that would have precluded summary judgment to Auto-Owners.[6]

A petition for reformation of a written contract will lie where by mistake of the scrivener and by oversight of the parties, the writing does not embody or fully express the real contract of the parties. The cause of the defect is immaterial so long as the mistake is common to both parties to the transaction.

(Citation omitted.) E A Technical Svcs., Inc., supra, 270 Ga.App. at 885 (1).

         In the insurance application, Hale Haven was explicitly named as a mortgagee for purposes of property coverage. One of the underwriters noted on the application, "O.K. to issue per App[lication], " and Auto-Owners approved the application. A "processor" in the underwriting department transcribed the information from the application into Auto-Owners' system. On the "Evidence of Commercial Property Insurance" document issued by the insurance agent, Hale Haven was listed as the mortgagee under the property coverage portion of the policy, and there is no evidence that Auto-Owners later determined that Hale Haven was not to be named on both sections of the policy. Further, the insurance agent testified that the issued policy is required to conform with the application. Both the insurance agent and an underwriter with Auto-Owners explained that a party named as a mortgagee under the general liability section of the policy would also have to be listed as a mortgagee on the property coverage section. Lastly, no party contends that the coverage terms had changed for the year that the hail damage occurred.[7]

         Viewing this evidence in the light most favorable to Hale Haven as the non-movant, we discern genuine issues of material fact as ...


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