United States District Court, N.D. Georgia, Atlanta Division
OPINION & ORDER
MICHAEL L. BROWN UNITED STATES DISTRICT JUDGE.
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.
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.)
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.)
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.)
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.)
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.)
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
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
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.)
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).
Summary Judgment Motions
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).
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 ...