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Bush v. AG South Farm Credit

Court of Appeals of Georgia, Second Division

June 27, 2018

BUSH
v.
AG SOUTH FARM CREDIT et al.

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

          BROWN, JUDGE.

         Terry L. Bush sued his insurance agent Sandra Meeks and her employer, AgSouth Farm Credit, ACA, an agricultural credit association and insurance broker (collectively, "defendants"), [1] for negligence, negligent misrepresentation, and fraud in connection with his purchase of a crop insurance policy. Bush sought compensatory and punitive damages. Defendants moved for summary judgment on all claims. The trial court granted the motion, and Bush appealed. For reasons that follow, we affirm the grant of summary judgment to AgSouth on Bush's claim for punitive damages, but reverse the grant of summary judgment on all remaining claims.

         "Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. On appeal, we review a trial court's summary judgment ruling de novo, construing the evidence and all reasonable inferences in the light most favorable to the nonmovant." (Citation omitted.) Cottingham & Butler, Inc. v. Belu, 332 Ga.App. 684, 685 (774 S.E.2d 747) (2015). So viewed, the evidence shows that Bush owns a 280-acre soybean and wheat farm.[2] The farm has been in Bush's family for many years and operated as a dairy farm. In 2010, Bush bought beef cows through a loan with AgSouth. As part of his dairy and cattle operations, Bush grew wheat and "planted it back for grazing and hay and stuff."

         In 2011, Bush began planting wheat and soybean as commodity crops. When Bush got into "row cropping," he took out several loans from AgSouth in order to purchase farm machinery and equipment. After he obtained these loans, his contact at AgSouth recommended that he get crop insurance in case of a weather-related crop loss. Bush had heard about crop insurance and agreed that he needed it, but told his contact that he knew nothing about crop insurance or anybody who "writes it." The contact put Bush in touch with Meeks, who has been a licensed crop insurance agent with AgSouth since 2000. Meeks "write[s] with" Diversified, Rain and Hail, and Great American.

         When they met in February 2011, Meeks told Bush she sold crop insurance for Diversified. At that time, Bush told Meeks where he obtained his grain and that he had never sold crops commercially before 2011, using it only as feed or seed to replant. Bush could not recall additional details of this initial conversation with Meeks or any subsequent conversations, but he recalled that Meeks "handled all" of the production history calculations, presumably from weight tickets he had provided to her. As a result of their meetings, Meeks procured crop insurance from Diversified for Bush's 2011 soybean crop and his 2012 wheat crop.

         Meeks testified that Bush had a "continuous policy" for wheat with an actual production history ("APH") of 75 bushels per acre, which Meeks calculated based upon what Bush told her that he produced for the four years prior to 2012.[3] Meeks did not ask Bush for documents supporting these amounts and explained that Bush was not required to submit such documentation with his insurance application, but she warned him - as she warns all of her clients - that if he was ever audited he would "have to document" what was reported in the insurance application. At the time Meeks procured the policy, she did not know if Bush would be farming crops for the first time, and she did not ask him. But, according to Meeks, Bush would not qualify as a "new producer" because he gave her "four years of production." During her deposition, Meeks confirmed that she was familiar with both the federal regulations governing APH and the" Crop Insurance Handbook," and acknowledged that she had never read the latter from front to back because it is "huge." Meeks explained that the Crop Insurance Handbook "gives you the rules on how to do anything, any reporting that you would do . . . . It would have a section for . . . records for production, for acreage, it would identify how to handle different things for blueberries, for pecans, for different crops." She further agreed that it sets "forth rules governing the issuance of [crop insurance] policies" and that she referred to it several times a year to refresh her memory if she had not done something in a long time or if she had a question about how to handle "any specific thing." Specifically, Sections 14 and 15 set forth "the approved production records, when you have to submit the production records" in the event of an audit. Meeks also read and agreed that a portion of the handbook provides that the insurance agent will

assist the insured in the completion of . . . [the] APH report and [will] calculate that preliminary yield based on what that insured has given [the agent] for his yields and . . . I'm going to review it and make sure that it's correct as to what the insured told me and establish and update APH databases. . . . You have to have an APH established to have coverage. So when you report your acres, it's based - coverage is based on the acres times the APH times the coverage level.

Meeks knew that Bush had loans with AgSouth.

         For his part, Bush did not know that Meeks worked for AgSouth. Their first meeting took place in his farm house, and she told him she sold crop insurance for Diversified. At that meeting, Bush recalls that Meeks asked him if he had ever sold crops and he said "no[, ] we always fed it back to the cows." Specifically, Bush recalls informing Meeks that he previously had been in the dairy cow and beef cattle business and had only combined wheat in order to harvest enough seed to replant grazing fields for his cattle the following year. With regard to the insurance application, Bush testified that Meeks "handled all" of the production history calculations and that he did not know if the APH of 75 bushels of wheat per acre listed on the application was accurate or not. According to Bush, he provided the "weight tickets" which Meeks used to calculate the "total production" amounts, and he never double-checked the numbers. He also explained to her that he only "combined enough wheat to fill up a grain bin that [he] rented from Eddie Smith one time each year. If the field that was combined for grain produced more than Smith's grain bin would hold, the remainder of the grain was fed to the cows." Smith's grain bin held 5, 000 bushels and each year, Bush "combined a field that was about 40 acres or a field that was about 60 acres to get [his] seed."

         The application requested 60 percent coverage, and Bush testified that he left it up to Meeks "to decide" the amount, but did not object "to it when [he] signed [the application]." Bush did not read the insurance application or the production and yield report on which Meeks calculated the APH, and he did not ask any questions about either document, but could have if he wanted to. He also did not recall having a conversation with Meeks about the importance of record keeping. Bush believed Meeks to be an expert in crop insurance, and he relied on and trusted her to make all the decisions regarding his crop insurance.

         Bush signed the insurance application, certifying that "to the best of my knowledge and belief all of the information on this form is correct. . . . I also understand that failure to report completely and accurately may result in sanctions under my policy, including but not limited to voidance of the policy. . . ." Bush also signed the production and yield report, certifying the correctness of that information as well as acknowledging that "this form may be reviewed or audited and that information inaccurately reported or failure to retain records to support information on this form may result in recomputation of the APH yield." When Bush received the insurance policy and other related documents from Diversified, he put them directly in a file or "st[u]ck them in a cabinet" without reading them.[4]

         For crop year 2012, Bush planted over 600 acres of wheat and conducted his farming operations based on Meeks' representation that the wheat was insured at the coverage level stated in his policy. In July of 2013, he suffered a complete loss of his wheat crop because of excessive moisture. Bush called Meeks to report the loss, and Diversified sent an adjuster to examine the crop and calculate the loss. Bush received approximately $102, 986 from Diversified, which he then assigned to AgSouth to pay down an existing loan. In July 2014, Meeks learned that Diversified was performing an audit of Bush's claim. Shortly thereafter, Diversified notified Bush that "upon completion of the review" of his acreage and production records, "a reduction in production and yields for specific units was applied" resulting in an overpayment of $102, 986.[5] Diversified demanded repayment, instructing Bush that he must remit the balance in order to remain eligible in the crop insurance program. Bush has not repaid Diversified, and he no longer has crop insurance.

         Bush filed his complaint against AgSouth and Meeks on May 9, 2016, alleging that Meeks held herself out as a crop insurance expert and that he relied on that expertise and Meeks' representations to establish his farming plan. Bush claims that

          AgSouth, as Meeks' employer, is vicariously liable for her actions. Among his claims, Bush asserts that defendants owed him a duty to issue crop insurance that complied with the rules and regulations of the federal crop insurance program and that they negligently misrepresented "that the policy would provide more insurance coverage than it actually provided." Bush also alleges that he justifiably relied on "Meeks' and AgSouth's decision to issue the policy using an APH that Meeks and AgSouth, but not Bush, knew to be incorrect," that they knew the APH was not in compliance with rules and regulations of the federal crop insurance program, and that their actions were taken to help assure that Bush would be able to repay loans made to him by AgSouth.

         Bush seeks damages of at least $145, 458.33, attorney fees, and punitive damages, contending that because of defendants' actions and his ineligibility for crop insurance, he lost the ability to operate his farm in 2015 and 2016, had to sell all of his cattle, and was forced to lease his land and equipment to another farmer.

         Defendants moved for summary judgment, arguing that Bush was obligated to read the policy and, if he had, he would have known that documentation was required to support the claimed APH. The trial court granted the motion, finding as follows:

It is undisputed that the reason [Bush's] claim ultimately failed . . . was because [he] was unable to produce documents, not because [he] relied on [Meeks'] calculations of the APH inserted on the policy. . . . [T]he responsibility for creating and maintaining supportive records here lay with [Bush], not on the exercise of some expertise or discretion on his behalf by [d]efendants. . . . All [Bush] had to do was to read the policy and other ...

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