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Kemper v. Equity Insurance Co.

United States District Court, N.D. Georgia, Atlanta Division

July 8, 2019

Amy Marie Kemper, Plaintiff,
v.
Equity Insurance Company, Defendant.

          OPINION & ORDER

          MICHAEL L. BROWN UNITED STATES DISTRICT JUDGE.

         This bad faith failure to settle case arises from an automobile incident between Defendant Equity Insurance Company's insured, Christopher Brown, and Plaintiff Amy Marie Kemper. Both parties have filed motions for summary judgment. (Dkts. 235, 239.) Ms. Kemper has also moved to exclude part of expert J. Randolph Evans's testimony (Dkt. 258) and to supplement her motion for summary judgment (Dkt. 266). For the reasons set forth in this order, the Court grants Equity's motion for summary judgment, grants in part and denies in part Ms. Kemper's motion to supplement, and denies Ms. Kemper's motions for summary judgment and to exclude Mr. Evans's testimony.

         I. Background

         In March 2012, Christopher Brown drove his vehicle across a road's center line into oncoming traffic and struck Ms. Kemper, who was riding her motorcycle. (Dkt. 252-1 at 1.) Mr. Brown was drunk. (Dkt. 224-1 at 2.) Ms. Kemper was injured and airlifted to a hospital. (Dkt. 235-9 ¶ 3.)

         Brown had an automobile liability insurance policy with Equity that provided $25, 000 per person in bodily injury liability coverage. (Dkt. 224-165 at 2.) Equity retained Statewide Claims Service to adjust Ms. Kemper's claims against Mr. Brown. (Dkts. 224-1 at 1; 252-1 at 5-6.) Statewide and its adjuster, Mr. Chop, began working on Ms. Kemper's claims after they received notice of the accident and the police report. (Dkt. 252-1 at 5-6.) Statewide confirmed the insurance policy provided liability coverage for the accident and concluded Mr. Brown was at fault for the accident. (Id. at 7-8.)

         In April 2012, Statewide received a claim form that included Ms. Kemper's $24, 456.92 air ambulance bill and an authorization and consent with an assignment of benefits and lien provision, which Ms. Kemper had not signed. (Dkts. 223-5 at 2; 252-1 at 8.) Statewide also received several medical bills and statements for medical expenses Ms. Kemper incurred because of the accident. (Dkts. 116-1 at 53:1-6, 54:1- 23; 223-5 at 5-7, 9-10, 12.) Mr. Chop concluded that Ms. Kemper's medical bills exceeded the $25, 000 policy limit. (Dkt. 116-1 at 55:2-23.) He sent Mr. Brown a letter acknowledging the loss under the insurance policy. (Dkt. 224-4 at 1.)

         In April 2012, Mr. Chop sent Ms. Kemper a letter and requested that she provide a medical update or medical bills, medical records from her treating physicians, and information about any lost wages. (Dkt. 224-10 at 1.) Attorney Michael Werner helped Ms. Kemper draft a demand letter in response. In it, Ms. Kemper offered to sign a limited release in exchange for the liability policy's limit. (Dkt. 224-11 at 1.) She stated the release must not have any language about her paying Mr. Brown's or Equity's “incurred costs” and that Equity must deliver the check to her before June 8, 2012. (Id. at 1.) Ms. Kemper also wrote “PLEASE DO Not contact me, or my Friends as this Demand is very simple [sic].” (Id. at 2.) Mr. Chop received the letter, evaluated Ms. Kemper's claims, and concluded her medical bills exceeded the insurance policy's limits. (Dkts. 116-1 at 92:24-93:19; 224-18 at 3.)

         Statewide knew Ms. Kemper's medical bills were extensive and, not knowing whether she had adequate medical coverage, feared medical providers would file liens on her claims against Mr. Brown. (Dkt. 224-1 at 5-6.) Statewide enlisted attorney Bill Allred, the founder of an insurance-defense firm, to assist. (Dkts. 205 at 65:8-16; 224-93 at 1; 235-3 at 1; 252-1 at 40.) He, in turn, hired another company to determine whether any of Ms. Kemper's medical providers had filed liens on her claims against Mr. Brown. (Dkts. 224-1 at 8; 224-168 at 1; 252-1 at 45.) That company found none. (Dkt. 224-1 at 8; 252-1 at 45.) Nevertheless, Statewide remained concerned about liens on Equity and Mr. Brown's behalf, given the extent of Ms. Kemper's medical bills. Statewide also sent Mr. Brown a letter stating that Equity had settled Ms. Kemper's claim for $25, 000. (Dkt. 224-17 at 1.)

         Statewide, as the administrator for Equity, responded to Ms. Kemper's demand letter within the time required. (Dkt. 224-13.) It sent her a $25, 000 settlement check, a limited release, and a Medicare form for Ms. Kemper to execute and return. (Id. at 1.) Statewide stated that it was tendering Mr. Brown's policy limits to settle Ms. Kemper's claim. (Id.) Statewide also included the following paragraph in its response.

In concluding the settlement, we are entrusting that you place money in an escrow account in regards to any and all liens pending. This demand is being asserted to protect the lien's interest and in accordance with the recent case law, Southern General Insurance Co. vs. Wellstar Health System, Inc.

(Id.)

         Ms. Kemper's counsel rejected Statewide's counteroffer and returned the check. (Dkt. 224-20 at 1.) He stated that the demand Ms. Kemper place her money in escrow was unacceptable. (Id.) He explained, “Ms. Kemper has over one million dollars of medical bills, is catastrophically injured, and she needs this money to live.” (Id.)

         Ms. Kemper later sued Mr. Brown in the Superior Court of Heard County, Georgia. Equity defended him. (Dkt. 252-1 at 58.) The trial court granted Mr. Brown's motion to enforce his purported settlement agreement with Ms. Kemper. The Georgia Court of Appeals, however, reversed holding Statewide's June 5th response to Ms. Kemper's demand letter was a counteroffer, not an acceptance. See Kemper v. Brown, 754 S.E.2d 141, 143-44 (Ga.Ct.App. 2014). Because she had not accepted the counteroffer, the court held there was no settlement. Id. (concluding the parties reached no binding settlement). Ms. Kemper obtained a $10 million consent judgment against Mr. Brown, and he assigned to her his good faith failure to settle claim against Equity. (Dkt. 252-1 at 60, 63.) She then sued Equity in the State Court of DeKalb County, Georgia, in July 2015. (Dkt. 1-1.) Equity removed the case to federal court. (Dkt. 1.)

         Both Ms. Kemper and Equity have moved for summary judgment. (Dkts. 235, 239.) Ms. Kemper has also moved to exclude part of Equity's expert Attorney J. Randolph Evans's testimony (Dkt. 258) and to supplement her motion for summary judgment (Dkt. 266).

         II. Summary Judgment Motions

         A. Legal Standard

         Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and [it] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “No genuine issue of material fact exists if a party has failed to ‘make a showing sufficient to establish the existence of an element . . . on which that party will bear the burden of proof at trial.' ” AFL-CIO v. City of Miami, 637 F.3d 1178, 1186-87 (11th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).

         The moving party bears the initial responsibility of asserting the basis for his motion. See Celotex Corp., 477 U.S. at 323. The movant is not, however, required to negate the non-movant's claim. Instead, the moving party may meet his burden by “ ‘showing' - that is, pointing to the district court - that there is an absence of evidence to support the nonmoving party's case.” Id. at 325. After the moving party has ...


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