The Eleventh Circuit recently upheld a district court’s grant of summary judgment to an insurer in a coverage dispute regarding the death of a two year old child. In Moon v. Cincinnati Ins. Co., the homeowner’s policyholder leased the insured home to his son and daughter-in-law. Moon, 2015 WL 342330 (11th Cir. Jan. 27, 2015). The daughter-in-law was babysitting a neighborhood toddler, and, while under her care, the toddler drowned in the backyard swimming pool. The decedent’s parents subsequently filed sued against the son and daughter-in-law.
Initially, the insurer defended the suit under a reservation of rights; however, it later denied coverage and withdrew its defense. The basis for the denial was that the policy did not cover the son and daughter-in-law vis-à-vis their relationship with the father policyholder. In the tort action, a judgment was entered in excess of $10 million.
After the denial, suit was brought against the insurer alleging breach of contract and bad faith failure to settle claims, as well as punitive damages and attorneys’ fees. The basis for the claim was that the son and daughter-in-law were covered by the policy because they were acting as “real estate managers” on behalf of the policyholder. To support this claim, they proffered evidence that the tenants performed routine maintenance on the home. Because the term was undefined in the policy, the plaintiffs argued that showing that a person took care of property on behalf of the landowner was sufficient to qualify that person for coverage under the “real estate manager” term.
The district court disagreed with the plaintiffs, and the Eleventh Circuit affirmed. Specifically, the Court held that “[t]he industry term ‘real estate manager’ implicates real estate transactions rather than routine maintenance.” Under the definition proffered by plaintiffs, “it would transform every tenant, family member or friend living in another’s home, who cuts the yard or paints a wall, into a covered real estate manager. This is not a reasonable interpretation of real estate manager.”
Additionally, even if the term “real estate manager” did encompass tenants, no coverage would be afforded under these circumstances because the claims arose out of a babysitting job, not duties being performed in the role of a real estate manager.
This case reflects long-standing Georgia precedent that courts will not strain to find ambiguities that do not exist, even when a policy term is undefined.
FEBRUARY 05, 2015 / LOCATION: ATLANTA, GA
Fred Valz will be co-presenting “Plaintiff and Defense Perspectives”, as part of a number of sessions in The Seminar Group’s Bad Faith Claims: Extra-contractual Liability in Georgia seminar, to be held in Atlanta on Thursday, February 5th and Friday, February 6th, 2015.
The full two-day seminar is available live and on demand, and offers:
GA CLE: 11.7 Credits, including 1.0 Hour of Ethics and 1.0 Hour Professionalism
GA Insurance: 14.0 Hours
IRMI: 7.0 Hours of CRIS Recertification Credits
In evaluating whether an insurer made a proper reservation of rights (ROR), the Eleventh Circuit Court of Appeals, in an unpublished opinion, held that whether the insurer fairly informed the insured of its coverage position is the proper standard in assessing whether coverage defenses were properly reserved.Wellons, Inc. v. Lexington Ins. Co., 2014 WL 1978412 (11th Cir. May 16, 2014).
Lexington insured Wellons, a company that designed and installed an Energy System for Langboard Industries, Inc., a company that manufactures oriented strand board. On November 20, 2004, during the construction phase of the Energy System, a tube bundle collapsed, resulting in extensive property damage. The Energy System was ultimately placed in service by June 2005.
On September 23, 2005 Wellons provided notice to Lexington, pursuant to the 2004 policy, of the tube bundle collapse. Lexington issued a reservation of rights letter on September 30, 2005. The reservation of rights stated, “this letter is not to be construed as a waiver of any of the terms, conditions, or provisions of the Lexington Insurance Company policy, or of any right or policy defense now or hereafter available to the Lexington Insurance Company.”
Wellons was sued, and on September 18, 2007, Lexington sent a second reservation of rights letter. The second reservation of rights stated, “there may be additional policy conditions that may also preclude coverage and this should not be construed as a waiver of other terms and conditions that may apply.” But Lexington retained counsel to defend Wellons against Langboard, and eventually paid limits under the 2004 policy to resolve this suit.
In February of 2006, after the Energy System had been in operation, leaks developed. Wellons retained a consultant, but the superheater ultimately failed. Langboard demanded that Wellons design and install a new superheater. Wellons agreed, but failed to notify Lexington. On August 17, 2006 Wellons notified Lexington of Langboard’s claim for a new superheater, but also of the consultant’s suit filed June 16, 2006, for non-payment for its services to repair the superheater.
On March 2, 2007, Lexington responded to the August 2006 notice by noting two separate claims were embedded in the notice. And, on March 3, 2007, Lexington sent a third reservation of rights letter – noting that Lexington was investigating this matter under a reservation of rights. Lexington further noted the policy required, for coverage to trigger, that “property damage” be caused by an “occurrence” and also highlighted certain exclusions for “Damage to Property,” “Damage to Your Product”, and “Damage to Your Work.” Lexington also stated that the agreement to replace the superheater was without authorization.
On April 25, 2007, Lexington supplemented its March 2007 letter with another reservation of rights letter. This letter stated there was no duty to indemnify or defend Wellons. Specifically, as no suit was filed, the duty to defend was not triggered. Regarding the duty to indemnify, there was no demand beyond the demand to replace the superheater. This letter also quoted pertinent portions of the policy including definitions of “property damage,” “occurrence” and various exclusions – as in the March reservation of rights letter. This position, however, was disputed by Wellons.
Langboard eventually filed a second suit against Wellons, and Lexington defended Wellons under the aforementioned reservation of rights. A jury awarded Langboard $8.5 million in damages. Wellons sued Lexington for indemnification, arguing that Lexington waived its coverage defenses because it did not adequately reserve its rights.
The Eleventh Circuit thoroughly reviewed Georgia law. Specifically, the court examined World Harvest Church, Inc. v. GuideOne Mutual Ins. Co. 287 Ga. 149, 695 S.E.2d 6, (2010) and Hoover v. Maxum Indemnity Co., 291 Ga. 402, 730 S.E.2d 413 (2012). The Eleventh Circuit held that it did not read World Harvest to overrule Georgia authority on specificity. It noted that Georgia law has repeatedly held that an “insurer” is not required to list each and every basis for contesting coverage in the reservation of rights letter. Kay-Lex Co. v. Essex Ins. Co., 286 Ga. App. 484, 649 S.E.2d 602 (2007).
The Court then held that Lexington’s reservation of rights letters were adequate; “a reservation of rights need not specify each and every potential basis for contesting coverage, as long as the reservation fairly informs the insured that, notwithstanding the defense of the insured, the insurer does not waive its coverage defenses.” The Court also noted that Wellons’ failure to object to the defense provided in the second suit provided implied consent to the defense under a reservation, and thereby implicitly consented to the terms of the reservation, including the non-waiver clauses.
The use of multiple reservations of rights with non-waiver clauses proved critical to avoiding costly indemnity obligations for the insurer, Lexington. Most important to the Court’s analysis was that the reservation of rights letters contained non-waiver clauses that specifically reserved Lexington’s right to assert additional coverage defenses. Caution should be noted with respect to reliance on this opinion as it is not binding precedent upon a Georgia Court. The reasoning, however, is very instructive and useful.
November 04, 2014 / Location: Uncasville, CT
Mike Ethridge will serve on the “Mediating Bad Faith Claims” panel alongside Deanna Johnston of Fireman’s Fund Insurance Company and Steven LaForge of Nationwide Insurance Company at the 1st Annual Bad Faith Litigation Strategies ExecuSummit on November 4 & 5, 2014. This one and a half day seminar, to be held at the Mohegan Sun Resort in Connecticut will offer a number of sessions for insurance professionals covering topics such as:
- Emerging Issues in Bad Faith Claims
- Primary and Excess Insurers – Bad Faith – Has the Playing Field Changed Register
- Ethics: Legal Malpractice Concerns and Tips for In-House Counsel
- Avoiding the Bad Faith Set Up
- First- & Third-Party Bad Faith Litigation: Recent Developments
- How to Choose and Use Bad faith and Coverage Experts In Today’s Environment
- The Impacts and Dangers of Unfair Trade Practices Acts – The Need to be Aware!
- Bad Faith First Party Third Party Coverage Denials
- Punitive Damages and the Latest Trends and Theories
The appellate courts in Georgia have confirmed that homeowner’s policies clearly do not provide coverage for damages arising from the use of a motor vehicle, regardless of who owned or was operating the vehicle. Although most homeowner’s policies plainly exclude coverage for such damages, plaintiffs in recent months have attempted to argue that the exclusion should only apply when the vehicle belongs to or was being operated by an insured seeking coverage under the homeowner’s policy. The Court of Appeals rejected this argument and the Georgia Supreme Court denied cert on the issue.
In April, the Georgia Court of Appeals ruled that the motor vehicle exclusion in a homeowner’s insurance policy barred coverage for damages arising from the death of a teenager killed in a car after allegedly drinking alcohol at the insured’s house. Sauls v. Allstate Prop. & Cas. Ins. Co., 326 Ga. App. 821, 757 S.E.2d 455 (2014), cert. denied Case No. S14C1093 (Sept. 22, 2014).
On the evening of February 18, 2011, the Plaintiffs’ 16-year-old daughter and 17-year-old son visited the home of a 17-year-old friend. The Plaintiffs alleged that, at the friend’s home, their daughter consumed alcohol, which the friend had obtained with the knowledge, consent, or acquiescence of his father.
Later that evening, the plaintiffs’ son, daughter, and some of their friends had left the party in a vehicle driven by the plaintiffs’ son, when he collided with a moving truck that was disabled and extending into the roadway. Plaintiffs’ daughter was ejected from the vehicle and died from the injuries she sustained in the accident.
At the time of the accident, the friend’s father was the named insured under a homeowner’s policy issued by Allstate Property & Casualty Insurance Company. When sued by Plaintiff for the death of his daughter, the friend’s father sought coverage under his homeowner’s policy for the claims arising from the death.
Allstate filed a declaratory judgment action, seeking a judicial declaration as to what, if any, coverage obligation it owed the friend’s father — the homeowner. Specifically, Allstate asserted that because the homeowner’s policy excluded coverage for damages arising out of the use of a motor vehicle and because the damages at issue (the death of plaintiff’s daughter) arose from a motor vehicle accident, there was no coverage under the policy. The trial court granted Allstate’s motion for summary judgment, and the plaintiffs appealed; they argued that their claims were based – not on the use of a motor vehicle – but on the conduct of Allstate’s insureds before the accident in furnishing alcoholic beverages, at their residence, to the driver and to their daughter, who were both minors.
The Georgia Court of Appeals rejected the argument. In affirming the trial court, the Court of Appeals explained that regardless of the plaintiffs’ theory of liability, the claims would not exist but for the use of a motor vehicle and the policy excluded coverage for damages arising from the use of a motor vehicle. As such, the court ruled that there was no coverage available under the homeowner’s policy for the plaintiffs’ cause of action.
The plaintiffs petitioned the Georgia Supreme Court for certiorari. In their petition, plaintiffs urged the court to reverse lower courts’ decisions, claiming that the interpretation of the motor vehicle exclusion was too broad. Plaintiffs alleged that notwithstanding the plain language of the exclusion, which states that it applies to damages arising from the use of any motor vehicle, the exclusion should be narrowly construed so to only apply to those motor vehicles over which the insured have some ownership, possession, and/or control. In a single page order, the Supreme Court denied the petition and affirmed the decision of the Court of Appeals.
For many insurance claim representatives, the claims process and the litigation process go hand-in-hand. In fact, some representatives are only assigned claims that have evolved (or devolved, depending on your perspective) into litigation. In a bad faith case, the most crucial and compelling witness is often the claim representative who handled (or supervised the handling) of the underlying injury or damage claim. A claim representative may be familiar with the litigation process based on their claimshandling experience, but it is not until they are called to testify that they truly begin to appreciate the importance of their role in the company. At that point, claim representatives become the face of the insurance company, and often it is their performance in a deposition that determines the ultimate value and outcome of a case.
When the success of a bad faith case hinges on a claim representative’s deposition performance, there is no substitute for thorough preparation. At a minimum, the preparation session should include a lengthy discussion between the representative and counsel for the insurance company. Whether this discussion should be conducted in person or can be accomplished remotely will depend on many factors, including the claim representative’s degree of experience in the insurance field, the level of comfort with the deposition process, and who the opposing counsel is. If the representative is new to the job or fi eld, has rarely or never been deposed, or does not perform well under the pressure of the deposition hot-seat, then the discussion should be in-person and in a setting that mimics the actual deposition.
This will likely mean going through the claims notes and other documents in the claims fi le with a fine-tooth comb, pointing out areas where the opposing counsel is likely to take issue with the file handling. Efforts should be made to question the representative in a tone and to a degree that he or she is likely to be questioned in deposition. It is essential that the representative is prepared to handle questions that are factually inaccurate, suggestive of the answer that opposing counsel is seeking, or that are aggressive or accusatory without becoming flustered, defensive, or emotional.
In order to adequately prepare the adjuster, counsel for the insurance company should understand the theme of the plaintiff’s case and the significance of the particularrepresentative’s role. For example, is the plaintiff trying to prove that the insurer had decided to deny the claim before fully investigating the facts? This theme frequently appears in bad faith cases arising from denials of coverage arising out of possible fraud in the presentment of the claim or material misrepresentation in the insurance application. Is the plaintiff attempting to prove that the representative was poorly trained and, as a result, mishandled the claim? This is a central theme in cases involving missed time limit demands. Identifying the theme of the plaintiff’s case is essential to anticipating the questions that the representative will face and helping him or her understand how to best respond. A claim representative who is well prepared for deposition can atone for a multitude of sins that may have occurred in the course of the file handling. Poise and confidence in answering difficult questions may compensate (to some degree) for a missed entry in the claim notes or a day-late response to a time limit demand.
Join us at our Insurance Coverage and Bad Faith Seminar THIS THURSDAY, September 11, 2014, when we will discuss thoroughly how to prepare for deposition, how to avoid common pitfalls,and other issues related to the claim representative’s deposition.
This article was featured in the 2014 Summer Carlock, Copeland & Stair Quarterly newsletter.
Long standing Georgia law requires a claimant to exhaust the tortfeasor’s underlying liability insurance limits before looking to uninsured motorist insurance for coverage. Daniels v. Johnson, 270 Ga. 289, 290 (1998). Additionally, Georgia public policy prohibits the recovery of punitive damages from an uninsured motorist insurer. State Farm Ins. Co. v. Weathers, 260 Ga. 123, 392 S.E.2d 1 (1990); Bonamico v. Kisella, 290 Ga.App. 211, 213, 659 S.E.2d 666 (2008); Roman v. Terrell, 195 Ga.App. 219, 219–222(2), (3), 393 S.E.2d 83 (1990).
So what is the effect on UM coverage when a claimant allocates the liability settlement payment between punitive damages and compensatory damages? According to the Georgia Supreme Court, in Carter v. Progressive Mountain Insurance Company, 2014 WL 3396496 (Ga., July 14, 2014), while allocation is not prohibited, any allocation will not increase the UM carrier’s coverages.
In Carter, the plaintiff was injured in an automobile collision with a driver allegedly driving under the influence of alcohol. Carter settled her claim with the liability carrier, pursuant to a limited liability release; but, within the terms and conditions of the release specifically allocated $29,000.00 of the $30,000.00 policy limits as payment of punitive damages and only $1,000.00 toward compensatory damages. Carter then pursued recovery of compensatory damages from her UM carrier, Progressive.
Arguing that the inclusion of such an allocation within the terms and conditions of the limited liability release effectively shifted payment of punitive damages to the UM carrier, Progressive moved for summary judgment. The trial court granted the motion, and the Court of Appeals affirmed. But, the Georgia Supreme Court reversed. The Supreme Court held that although Carter had exhausted the underlying liability limits, any additional recovery from her UM carrier remained subject to the statutory limitations of O.C.G.A. §§33–24–41.1(d)(2) and 33-7-11.
Writing for the Court, Justice Hines explained
Under OCGA § 33–24–41.1(d)(2), “the amount paid under a limited release shall be admissible as provided by law as evidence of the offset against the liability of an uninsured motorist carrier and as evidence of the offset against any verdict of the trier of fact.” And, by the plain language of the statute, it is “the amount paid” that is admissible, not merely the amount attributed to compensatory damages. Further, … [u]nder O.C.G.A. § 33-7-11(b)(1)(D)(ii)(I), recovery under the UM policy will be limited to “the insured’s losses in addition to the amounts payable under any available [liability] coverages” and, “the insured’s combined recovery from the insured’s uninsured motorist coverages and the available [liability] coverages … shall not exceed the sum of all economic and noneconomic losses sustained by the insured.” (Emphasis in original.)
Id. at *3.
Finally, the Supreme Court noted that “punitive damages do not represent ‘losses’ by the insured, and regardless of any designation of such payments in the release, when the UM policy is brought into play, the combined recovery will not exceed the insured’s economic and noneconomic losses.” Id. Unfortunately, however, resolution of Carter type cases requires a jury trial to determine the amount of recoverable compensatory damages, and thus determine the amount of UM coverage available to the plaintiff. But the message to claimants is clear: allocate the liability settlement any way you choose; the UM carrier still gets credit for every penny.
Join us September 11, 2014 from 10 a.m. to 5:30 p.m. for a complimentary day of exploration into the complexities of Insurance Coverage and Bad Faith, and the beauty of the “Imaginary Worlds”, 28 fantastic living sculptures at the Atlanta Botanical Garden.
Five hours of credit, two tracks, and eight sessions in a beautiful location.
Topics include: Preparing for Bad Faith Depositions; Emerging Bad Faith Traps and Trends; Fraud; the Tripartite Relationship and the Duty to Defend; Cyber and Coverage;and a deep dive into homeowners’ policies,CGL, trucking, and auto/UM.
Register today as space is limited.
Registration includes lunch, admission to the gardens, and a private reception.
Dogs are staples in homes all across the country. They’re a man’s best friend; they grow up with your kids; and they become an integral part of the family unit. At the end of the day, however, dogs are animals and they can be unpredictable, at times. Dogs bite more than 4.5 million people every year in this country. (See Dog Bite Law, www.dogbitelaw.com). In fact, roughly 1,000 U.S. citizens require emergency care treatment each day for dog bite injuries. (See DogsBite.org, www.dogsbite.org). Dog bites have become so pervasive that the American Veterinary Medical Foundation (“AVMF”) holds National Dog Bite Prevention Week during the third full week of May each year.
In addition to becoming a health and safety concern, the increased prevalence of dog bites is also leading to increased liability for dog owners. Many homeowners probably do not even know if their homeowner’s insurance policy covers dog bite injuries. Moreover, due to the rising cost of medical expenses and inflated legal settlements, many insurance companies are excluding dog bite injuries from coverage, or only including them as a covered event for an added cost. Some insurance companies have gone as far as refusing to offer coverage for certain types of breeds with a reputation for aggressive behavior, including these eleven breeds: (1) Pit Bulls and Staffordshire Terriers; (2) Doberman Pinschers; (3) Rottweilers; (4) German Shepherds; (5) Chows; (6) Great Danes; (7) Presa Canarios; (8) Akitas; (9) Alaskan Malamutes; (10) Siberian Huskies; and (11) Wolf-hybrids. (See Catey Hill, 11 Riskiest Dog Breeds for Homeowners and Renters, Forbes (Mar. 30, 2012, 10:57 AM), http://www.forbes.com). If you choose to purchase one of these dogs and welcome them into your home, be forewarned that it may be difficult or even impossible to get insurance coverage to protect you against an unfortunate event. There are some carriers now—Xinsurance for example—that provide individuals with the ability to create custom personal liability policies that address areas traditional policies fail to cover, such as dog bites.
In Georgia, two essential elements must be proven in order to support an action for damages in connection with a dog bite—the animal must have a vicious or dangerous character, and knowledge of this propensity on the part of the owner must be demonstrated. See Levy v. McKay, 149 Ga. App. 251, 253 S.E.2d 872 (1979). Consequently, although insurance coverage for certain breeds may be unavailable, owners are protected by a plaintiff’s significant burden to sustain a cause of action.
If you own a dog or plan on purchasing a canine in the near future, examine closely your insurance policy to ensure that canine inflicted injuries are not excluded. And, to be on the safe side, engage your insurance agent to go over the policy with you so all relevant sections of the policy are reviewed in order to guarantee the proper analysis.
The availability of UM coverage in varying circumstances is keeping Georgia’s appellate courts busy. As claimants look for all available means of recovery, their insurers and the courts are struggling to keep up with a landscape that changes on a near-weekly basis. Although it has long been the law in Georgia that courts will not strain to find ambiguities where none exist, a recent ruling by the Court of Appeals suggests that it may be willing to at least stretch.
Typically, before an insured can recover UM benefits, he or she must first exhaust the applicable underlying liability limits. However, in Wade v. Allstate Fire & Cas. Co., 751 S.E.2d 153 (Ga. Ct. App. 2013), an insured reached a partial settlement to receive the full limit of one allegedly negligent motorist’s liability insurance limits in connection with a multi-vehicle accident and then sought to recover benefits under his UM policy, though he had not exhausted the liability limits of the two other allegedly negligent motorists.
Bernard Wade, who was insured under an Allstate liability policy with added-on UM coverage in the amount of $25,000.00 per person, was injured in a multi-vehicle accident and filed suit against the other drivers involved in the accident—Fred Bergh, Dale Froman, and James Bruce—alleging that their negligence caused his injuries. Wade also served his insurer, Allstate, with a copy of his suit.
Wade subsequently settled with Bruce (and his mother who had also been named as a defendant under the family purpose doctrine), through the payment of the full limits of their liability insurance policy in exchange for a limited liability release. Wade then settled his claims against Bergh and Froman, as well as Froman’s employer, for a total sum of $30,000, which was an amount less than the full amount of their respective liability policy coverages. Wade executed a general release with respect to Bergh, Froman, and Froman’s employer and dismissed these defendants with prejudice.
Allstate consented to the dismissal of Bergh, Froman, and Froman’s employer, but it expressly noted that it did not waive any defenses regarding Wade’s claim for UM benefits. Allstate moved for summary judgment, contending that under the UM provision in Wade’s policy, it was not obligated to pay on Wade’s claim for UM benefits since he had not exhausted the limits of the insurance liability protection available to all named-defendants. The trial court granted Allstate’s motion, finding that the UM provision clearly and unambiguouslyOn appeal, however, Wade argued that summary judgment was improper because there had not been a determination as to the extent of his damages and there had been no apportionment of fault as required by law. Wade contended that he had exhausted the policy limits with respect to one of the defendants but that Allstate’s UM coverage obligation could not be determined until liability of all defendants had been apportioned. The Court of Appeals agreed. provided that Allstate was not obligated to pay benefits because Wade did not exhaust the limits of insurance for all defendants.
The Court held that the term “applicable” in the exhaustion provision was ambiguous. The Court explained the because there were multiple tortfeasors, who could not be held jointly and severally liable, then their respective liability carriers were only responsible for the amount of the damages apportioned to each tortfeasor. “[I]t stands to reason that an individual tortfeasor’s liability insurance is not ‘applicable’ to pay for any other tortfeasor’s damages.” Although Wade settled with the Bruces pursuant to a limited liability release and the remaining defendants pursuant to a full release, there had been no determination as to the percentage of fault attributable to each. The Court of Appeals ruled that Wade would be entitled to UM benefits “if there is an uninsured or underinsured motorist who is legally responsible for his damages.” More precisely, if there were any losses attributable to the Bruces in excess of their policy limits, then Wade would be entitled to UM coverage. Accordingly, the court ruled that Allstate was not entitled to judgment as a matter of law and remanded the case for a factual determination of Wade’s damages and for an apportionment of fault among the defendants.
This holding suggests that UM carriers may face protracted litigation in cases involving multiple tortfeasors, especially if the plaintiff settles with one or more of the defendants before trial for less than the liability limits. If that happens, then the UM carrier may be forced to try the case in order to determine whether the degree of fault attributable to the settling party (or parties) exceeded their respective policy limits, thus triggering UM coverage.
 The exhaustion provision stated, in pertinent part:
[Allstate is] not obligated to make any payment for bodily injury or property damage under this coverage which arises out of an accident involving the use of an underinsured motor vehicle until after the limits of liability for all liability protection in effect and applicable at the time of the accident have been exhausted by payment of judgments or settlement.