United States District Court, M.D. Georgia, Columbus Division
D. LAND CHIEF U.S. DISTRICT COURT JUDGE.
Specialty Insurance Company (“AIX”) seeks a
declaration that it has no contractual duty to defend or
indemnify its insured, Samuel G. Cooke American Legion Post
#267, Inc. (“Post #267”), for claims Cecilia
Richerson made against Post #267.Defendants did not respond to
the summary judgment motion. As discussed below, the motion
(ECF No. 15) is granted.
judgment may be granted only “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). In determining whether a genuine
dispute of material fact exists to defeat a motion
for summary judgment, the evidence is viewed in the light
most favorable to the party opposing summary judgment,
drawing all justifiable inferences in the opposing
party's favor. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). A fact is material if it
is relevant or necessary to the outcome of the suit.
Id. at 248. A factual dispute is genuine if
the evidence would allow a reasonable jury to return a
verdict for the nonmoving party. Id.
the Court's local rules, a party moving for summary
judgment must attach to its motion “a separate and
concise statement of the material facts to which the movant
contends there is no genuine dispute to be tried.” M.D.
Ga. R. 56. Those facts must be supported by the record. The
respondent to a summary judgment motion must respond
“to each of the movant's numbered material
facts.” Id. “All material facts
contained in the movant's statement which are not
specifically controverted by specific citation to particular
parts of materials in the record shall be deemed to have been
admitted, unless otherwise inappropriate.” Id.
submitted a statement of undisputed material facts with its
summary judgment motion. None of the Defendants responded to
the summary judgment motion or to AIX's statement of
material facts. Therefore, AIX's statement of material
facts is deemed admitted pursuant to Local Rule 56. The Court
reviewed AIX's citations to the record to
“determine if there is, indeed, no genuine issue of
material fact.” Reese v. Herbert, 527 F.3d
1253, 1269 (11th Cir. 2008) (quoting United States v. One
Piece of Real Prop. Located at 5800 SW 74th Ave., Miami,
Fla., 363 F.3d 1099, 1103 n.6 (11th Cir. 2004)).
citations to the record reveal the following facts. AIX
issued a liability insurance policy to Post #267. On October
18, 2014, Richerson attended an event at Post #267 as the
guest of a member. As she exited the event, Richerson fell
and fractured her ankle. In May 2015, Richerson's lawyer
submitted a claim to AIX. AIX investigated Richerson's claim
and determined there was no evidence of the hazardous
condition that Richerson said existed and that there was
evidence that Richerson was comparatively negligent. Based on
those determinations, AIX decided to deny Richerson's
claim and notified her lawyer of the decision on January 29,
September 26, 2016, Richerson filed a negligence action
against Post #267 in the State Court of Muscogee County. She
served Post #267 the next day. Post #267 did not answer or
otherwise respond to the complaint, and the state court
entered a default against Post #267 on January 9, 2017. The
state court judge scheduled a hearing on damages, and Post
#267 was given notice of the hearing. After the damages
hearing, the state court entered a final judgment against
Post #267 on July 10, 2017 for $150, 215.00.
November 3, 2017, Richerson's attorney sent AIX a letter
seeking payment of the judgment. This letter was AIX's
first notice of Richerson's lawsuit against Post #267;
AIX did not receive notice of the lawsuit from Post #267.
After AIX received the letter from Richerson's attorney,
AIX contacted Post #267's registered agent, who confirmed
that she received Richerson's summons and complaint on
September 27, 2016.
liability policy states that the insured “must see to
it that [AIX] receive[s] written notice of [a]
‘suit' as soon as practicable” and that the
insured must “[i]mmediately send [AIX] copies of any
demands, notices, summonses or legal papers received in
connection with the claim or ‘suit.'”
Fitzgerald Aff. Ex. 1, AIX Policy 47, ECF No. 15-2 at 86. The
liability policy further states that no person may sue AIX on
the policy “unless all of its terms have been fully
complied with.” Id.
an insured unreasonably fails to comply with applicable
notice provisions in a timely manner, the insurer is not
obligated to provide either a defense or coverage.”
OneBeacon Am. Ins. Co. v. Catholic Diocese of
Savannah, 477 Fed.Appx. 665, 670, 672 (11th Cir. 2012)
(per curiam) (citing Kay-Lex Co. v. Essex Ins. Co.,
649 S.E.2d 602, 606 (Ga.Ct.App. 2007)) (concluding that the
insured was not entitled to coverage as a matter of law
because of an unjustified 21-month delay in notifying its
insurer of a lawsuit); accord Advocate Networks, LLC v.
Hartford Fire Ins. Co., 674 S.E.2d 617, 619 (Ga.Ct.App.
2009) (affirming summary judgment in favor of insurer where
the policy required insureds to send legal papers to the
insurer “immediately” and the insured did not
send the legal papers until four months after it received
them); Burkett v. Liberty Mut. Fire Ins. Co., 629
S.E.2d 558, 560 (Ga.Ct.App. 2006) (affirming summary judgment
in favor of insurer where the insured did not provide his
insurer with legal papers until more than a year after he
received them); Berryhill v. State Farm Fire & Cas.
Co., 329 S.E.2d 189, 191 (Ga.Ct.App. 1985) (affirming
summary judgment in favor of insurer where the insurer did
not receive notice of a lawsuit until after a default
judgment had been taken).
the unambiguous policy language in this case, Post #267 had
an obligation to provide AIX with notice of Richerson's
lawsuit as soon as practicable and to send
“immediately” all legal papers that Post #267
received in connection with the lawsuit. Post #267 failed to
fulfill the liability policy's conditions precedent to
coverage because it did not send any legal papers to
AIX-immediately or otherwise. Consequently, AIX is entitled
to a declaration that it has no contractual duty to ...