Georgia Cases November 25, 2019: ACE Am. Ins. Co. v. Hernandez-Ortiz

Case Description

[428 F.Supp.3d 1356]

Alycen A. Moss, Cozen O'Connor, Atlanta, GA, for Plaintiff.

Michael D. Goodman, Barry Goodman, Goodman & Goodman, LLP, Atlanta, GA, for Defendants.

ORDER

MICHAEL L. BROWN, UNITED STATES DISTRICT JUDGE

[428 F.Supp.3d 1357]

Plaintiff ACE American Insurance Company ("ACE" or "AAIC") seeks a declaratory judgment that an insurance policy it issued to a landscaping company did not provide uninsured motorist coverage for Rafael Menchaca-Delgado, a former employee of that company represented in this case by Defendant Erika Hernandez-Ortiz. Both Plaintiff and Defendant move for summary judgment. (Dkts. 35; 39.) The Court grants Plaintiff's motion and denies Defendant's motion.

I. Background

This case arises from the death of Mr. Menchaca-Delgado in a car accident in 2014. Mr. Menchaca-Delgado worked for a company known as ValleyCrest and was riding in a ValleyCrest vehicle at the time of the accident. His widow, Defendant Hernandez-Ortiz, believed the accident was caused by the negligence of an unidentified driver of another vehicle. (Dkt. 1 ¶ 15.) She sued the unidentified driver in the State Court of Clayton County, obtaining a default judgment of $4,000,212.00. ( See Dkts. 6-1; 6-2 at 2; 6-4.)

At the time of the 2014 accident, ValleyCrest had automobile insurance from Plaintiff ACE. The primary issue before the Court is whether ValleyCrest had uninsured motorist coverage against which Defendant could make a claim on her own behalf and on behalf of her husband's estate.

Georgia law does not require individuals or companies to purchase uninsured motorist ("UM") coverage. A purchaser of insurance can reject UM coverage but must do so in writing. GA. CODE ANN. § 33-7-11(a)(3). Absent such a rejection, Georgia provides that an insurance policy must include UM coverage of $25,000, unless the policy's limit is larger, and then the policy's limit is the default coverage. § 33-7-11(a)(1)(A) ; see McGraw v. IDS Prop. & Cas. Ins. Co. , 323 Ga.App. 408, 744 S.E.2d 891, 893 (2013) ("[ Georgia Code Annotated Section 33-7-11(a)(1)(B) ] was intended to make a policy's liability limits the default provision for UM coverage, unless an insured affirmatively elects UM coverage in a lesser amount.").

It is undisputed that ACE began providing automobile insurance to ValleyCrest in 2009. (Dkt. 39-3 at 8.) ValleyCrest renewed its policy each year after that, specifically for the years 2010–2011, 2011–2012, 2012–2013, and 2013–2014, the last being the relevant year. (Dkts. 30-1; 30-2; 30-3; 30-4.) Each of these renewal policies included $2 million in coverage. ( Id. )

For each policy, ACE sent ValleyCrest a form entitled "Georgia Uninsured Motorist Coverage Selection/Rejection" that allowed it to select or reject UM coverage. (Dkt. 29-2.) If it elected UM coverage, ValleyCrest had two more options: it could purchase UM coverage added to its At-Fault liability limits or it could reject the "added" coverage and instead purchase UM coverage reduced by its At-Fault liability limits. ( Id. at 3.) If ValleyCrest selected to purchase UM coverage (either in addition to its At-Fault limits or reduced by its At-Fault limits), it was then required to indicate the amount of UM coverage it wanted. The form included a table that allowed it to select coverage equal to its liability coverage or some other amount.

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Roger Plotkin, ValleyCrest's Vice President of Risk Management, completed this form each year. The parties agree that ValleyCrest properly rejected UM coverage in the first year. (Dkt. 36-1 at 97:23–98:13.) When Mr. Plotkin filled out the form in each of the later years, including 2013–2014, he signed both the second option, which accepts coverage reduced by At-Fault limits, and the third option, which rejects all coverage. (Dkts. 29-2 at 4, 6; 30-2 at 6, 8; 30-3 at 6, 8; 30-4 at 5, 7.) For each renewal, Plotkin did not fill out the table accompanying the second option. In other words, to the extent his selection of the second option evidenced his intent to select UM coverage, he did not indicate the amount he intended ValleyCrest to purchase. (Dkts. 29-2 at 5; 30-2 at 7; 30-3 at 7; 30-4 at 6.) In his affidavit, Plotkin testified that signing the second option was a mistake. (Dkt. 41-1 ¶¶ 6–7.) He thought he was rejecting UM coverage entirely. ( Id. )

ACE sued Defendant Ortiz, seeking a declaratory judgment that it had not provided ValleyCrest UM coverage at the time of the accident. (Dkt. 1.) Defendant Ortiz asserted a counter-claim, seeking damages based on ACE's alleged bad faith failure to pay her claim in violation of Section 33-7-11 of the Georgia Code, as well as statutory penalties and attorneys' fees. (Dkt. 6.) Both parties move for summary judgment. (Dkts. 35; 39.) In the event the Court finds UM coverage, ACE also moves to have the Court modify the contract.

II. Standard of Review

Rule 56 of the Federal Rules of Civil Procedure provides that a court "shall grant summary judgment 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).

A factual dispute is genuine if the evidence would allow a reasonable jury to find for the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it is "a legal element of the claim under the applicable substantive law which might affect the outcome of the case." Allen v. Tyson Foods, Inc. , 121 F.3d 642, 646 (11th Cir. 1997).

The party moving for summary judgment bears the initial burden of showing a court, by reference to materials in the record, that there is no genuine dispute as to any material fact that should be decided at trial. Hickson Corp. v. N. Crossarm Co. , 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). A moving party meets this burden merely by " ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Celotex , 477 U.S. at 325, 106 S.Ct. 2548. The movant, however, need not negate the other party's claim. Id. at 323, 106 S.Ct. 2548. In determining whether the moving party has met this burden, a court must view the evidence and all factual inferences in the light most favorable to the party opposing the motion. Johnson v. Clifton , 74 F.3d 1087, 1090 (11th Cir. 1996).

Once the movant has adequately supported its motion, the nonmoving party then has the burden of showing that summary judgment is improper by coming forward with specific facts showing a genuine dispute. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Ultimately, there is no "genuine [dispute] for trial" when the record as a whole could not lead a rational trier of fact to find for the nonmoving party. Id. But "the mere existence of some alleged factual dispute

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between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson , 477 U.S. at 247–48, 106 S.Ct. 2505. The court, however, resolves all reasonable doubts in the favor of the non-movant. Fitzpatrick v. City of Atlanta , 2 F.3d 1112, 1115 (11th Cir. 1993).

III. Analysis

A. Contract Interpretation

The parties dispute whether ACE contracted to provide UM coverage. Courts interpret insurance contracts and can appropriately grant summary judgment. See Goldeagle Ventures, LLC v. Covington Specialty Ins. Co. , 349 Ga.App. 446, 825 S.E.2d 881, 884 (2019) ("[W]e note that insurance in Georgia is a matter of contract, and this Court has long held that such contract disputes are well suited for adjudication by summary judgment because construction of a contract is ordinarily a matter of law for the court.") (quoting S. Tr. Ins. Co. v. Cravey , 345 Ga.App. 697, 814 S.E.2d 802, 804 (2018) ). The central rule of contract interpretation is to find the parties' intent. GA. CODE ANN. § 13-2-3 ("The cardinal rule of construction is to ascertain the intention of the parties."). To do so, the Court starts with the contract's plain meaning. See Goldeagle Ventures, LLC , 825 S.E.2d at 884. If unambiguous, the Court applies that meaning. See id. But if the contract is ambiguous, that is, its provisions are susceptible to more than one meaning, the Court uses the rules of contract construction to resolve the ambiguity. See id. ; First Acceptance Ins. Co. of Georgia, Inc. v. Hughes , 305 Ga. 489, 826 S.E.2d 71, 75 (2019) ("Ambiguity is defined as duplicity, indistinctness, an uncertainty of meaning or expression used in a written instrument, and also signifies of doubtful or uncertain nature; wanting clearness or definiteness; difficult to comprehend or distinguish; of doubtful purport; open to various interpretations."). And if the contract is still ambiguous after the Court applies the rules of construction, the Court can examine extrinsic evidence. See Grange Mut. Cas. Co. v. Snipes , 298 Ga.App. 405, 680 S.E.2d 438, 440–41 (2009).

The Court finds the UM selection/rejection form ambiguous. According to the contract's provisions, ValleyCrest, acting through Mr. Plotkin, rejected UM coverage. Mr. Plotkin selected option three which read "I reject Uninsured Motorist Coverage entirely." Mr. Plotkin initialed this selection, signed his name and dated it. This alone would be a rejection of UM coverage.

Plotkin, however, also initialed the section stating that ValleyCrest "reject[ed]" UM coverage in addition to At-Fault liability limits but "select[ed]" UM coverage reduced by its At-Fault liability limits. Plotkin thus both selected some UM coverage and rejected UM coverage completely. He did not fill out the accompanying table that would indicate how much insurance he wished to purchase. The empty table though does not clarify his intentions. On the contract's face, the parties' intent is unclear — Plotkin could have meant to purchase coverage or he could have meant to reject it.

Since the 2013–2014 selection/rejection form is ambiguous, the Court applies the relevant rules of contract construction. There are three well-known rules of contract construction in insurance cases: "[first,] [a]ny ambiguities in the contract are strictly construed against the insurer as the drafter of any document; [second,] any exclusion from coverage sought to be invoked by the insurer is likewise strictly construed; and [third,] insurance contracts are to be read in accordance with the reasonable expectations of the insured

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where possible." Lee v. Universal Underwriters Ins. Co. , 642 F. App'x 969, 972–73 (11th Cir. 2016) (quoting Boardman Petroleum, Inc. v. Federated Mut. Ins. Co. , 269 Ga. 326, 498 S.E.2d 492, 494 (1998) ).

The Eleventh Circuit has found that "[a]fter deciding that an insurance policy is ambiguous, the Georgia Supreme Court will typically construe the policy against the insurer before applying any other rule of construction." Lee , 642 F. App'x at 973 (citing W. Pac. Mut. Ins. Co. v. Davies , 267 Ga.App. 675, 601 S.E.2d 363, 368–69 (2004) ; Hurst v. Grange Mut. Cas. Co. , 266 Ga. 712, 470 S.E.2d 659, 663–64 (1996) ; Claussen v. Aetna Cas. & Sur. Co. , 259 Ga. 333, 380 S.E.2d 686, 687–88 (1989) ; Anderson v. Se. Fid. Ins. Co. , 251 Ga. 556, 307 S.E.2d 499, 500–01 (1983) ; Richards v. Hanover Ins. Co. , 250 Ga. 613, 299 S.E.2d 561, 563–64 (1983) ; but see York Ins. Co. v. Williams Seafood of Albany, Inc. , 273 Ga. 710, 544 S.E.2d 156, 157–58 (2001) ). The Court recognizes that these cited insurance cases apply the insurance rules of contract construction in a different way than the case at hand. Specifically, they use the rules to interpret the meaning of a specific term within an insurance provision, not whether coverage was selected. See Davies , 601 S.E.2d at 369 (interpreting "failure of specific major structural component"); Hurst , 470 S.E.2d at 663 (interpreting "entitled"); Claussen , 380 S.E.2d at 688 (interpreting "sudden"). But, there is no legal justification for ignoring the rules here.

Construing the ambiguity against ACE, the Court finds that the 2013–2014 Renewal did not reject coverage. The contract thus included it. GA. CODE ANN. § 33-7-11(a)(3) ("[UM coverage] shall not be applicable where any insured named in the policy shall reject the coverage in writing.").

ACE makes a number of arguments that the Court rejects. ACE argues no written rejection was required because of Georgia Code Annotated Section 33-7-11(a)(3). Under that section, renewals of policies without UM coverage do not require written rejections of UM coverage. See Gov't Emps. Ins. Co. v. Morgan , 341 Ga.App. 396, 800 S.E.2d 612, 615 (2017) ("Once an insured has exercised the opportunity to reject [UM] coverage, the insurer is under no further duty or obligation to offer the coverage, absent a request, for the life of the policy.").

ACE asserts that, since the 2013–2014 policy renewed a policy that rejected UM coverage, ACE did not have a duty to offer ValleyCrest UM coverage. ACE, however, sent ValleyCrest an option to purchase UM coverage, and Plotkin initialed by the option of purchasing some UM coverage. As in Morgan , "[t]he exception does not apply where, as here, an insured who previously rejected UM coverage later requests that UM coverage be added to the policy." 800 S.E.2d at 615.

ACE also claims the policy itself rejected UM coverage, as evidenced by the policy's Business Auto Declarations page. ( See Dkt. 39-5 at 76.) A declarations page, however, does constitute an affirmative rejection of coverage. See McGraw , 744 S.E.2d at 894 ("While the declarations page specifies UM coverage limits at the lesser

[428 F.Supp.3d 1361]

amount, this cannot support an inference that either McGraw or his wife made an affirmative choice among the various UM coverage options available under OCGA § 33–7–11(a)(1), because it raises merely a conjecture or possibility of that fact.").

B. Reforming the Contract (Dkt. 39-1 at 29)

Plaintiff ACE, however, also moves to amend the complaint to argue that if the Court finds coverage, it should reform the contract to reflect the parties' intent — in this case, the intent not to include UM coverage. ACE claims any UM coverage was the result of a mutual mistake. "A ‘mutual mistake’ in an action for reformation means one in which both parties had agreed on the terms of the contract, but by mistake of the scrivener the true terms of the agreement were not set forth." First Nat. Bank of Polk Cty. v. Carr , 260 Ga.App. 439, 579 S.E.2d 863, 864–65 (2003). The Georgia Code urges caution upon courts before using the equitable power of reformation: "the power to relieve mistakes shall be exercised with caution; to justify it, the evidence shall be clear, unequivocal, and decisive as to the mistake." GA. CODE ANN. § 23-2-21. And, "[i]f a party, by reasonable diligence, could have had knowledge of the truth, equity shall not grant relief...." § 23-2-29.

Courts can modify contracts in insurance cases. Lubin v. Cincinnati Ins. Co. , No. 1:09-CV-2985-RWS, 2010 WL 5313754, at *7 (N.D. Ga. Dec. 17, 2010) ), aff'd , No. 11-10231, 2012 WL 372785 (11th Cir. Feb. 7, 2012) ("We have found no case holding that insurance contracts are immune to suits for reformation.") (quoting Ga. Farm Bureau Mut. Ins. Co. v. Wall , 242 Ga. 176, 249 S.E.2d 588, 591 (1978) ). Courts may also consider parole evidence when determining whether modification is appropriate. Id. ("The fact that the parol evidence contradicts the language of the written document clearly does not bar its admissibility, since the gist of a reformation action is that the written document does not accurately reflect the parties' agreement.") (quoting Yeazel v. Burger King Corp. , 241 Ga.App. 90, 526 S.E.2d 112, 117 (1999) ).

The Court finds modifying the contract to exclude UM coverage appropriate here. Clear, unequivocal, and decisive parole evidence shows ValleyCrest meant to reject UM coverage and ACE did not intend to issue UM coverage. To start, Plotkin, the ValleyCrest official who executed the contract, filed an affidavit saying his signature on the second option was a scrivener's error, and he did not intend to elect any UM coverage. (Dkt. 41-1 ¶¶ 5, 6.) ValleyCrest intended to reject UM coverage in all states where possible, including Georgia. ( Id. )

Next, ACE presented evidence from the time when it and ValleyCrest were formalizing the insurance policy that shows ValleyCrest's intended to reject all coverage and that ACE understood that intention. Specifically, in March 2013, Albert Salvador, a Vice President at ACE, wrote to two officials from Alliant (the broker responsible for ValleyCrest's renewal of the policy) stating: "It is my understanding the last four years that ValleyCrest desires to reject UM/UIM coverage on those states that allow rejection." One of the Alliant officials responded, "Albert is correct. Total rejection is preferred.... The client does not want to receive a [worker's compensation] claim and a UM claim from the same employee, especially considering the High Deductibles of the WC and Auto policies." (Dkt. 39-10 at 2.) This email exchange clearly and unequivocally shows ValleyCrest did not want coverage because it did not want to receive multiple claims from the same employee.

Defendant argues this evidence is not so decisive because other evidence suggests ACE charged ValleyCrest a premium for

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UM coverage. The evidence actually shows the opposite. Michael Busto, ACE's expert and its former underwriter, explained ACE's process for determining the insurance premium. ACE originally quoted a premium for the 2009–2010 policy, where the parties agree ValleyCrest rejected UM coverage. (Dkts. 36-1 at 97:23–98:1; 43-1 ¶ 26.) For subsequent years, ACE determined new premiums based on loss experience, where "an underwriter will examine the insured's past loss history and calculate the premium based on the loss experience specific to the insured." (Dkt. 43-1 ¶ 22.) ACE used the initial 2009–2010 policy as a benchmark and then adjusted the premium based on accidents in the previous year. He explained that, since there was no UM coverage in the initial year, there were no losses for UM coverage. ( Id. ) The 2013–2014 premium thus was rooted in the quoted price for the 2009–2010 policy, where there was no UM premium, with increases based on annual losses for non-UM claims. The undisputed evidence shows the underwriters charged no premium for the 2013–2014 policy. ( Id. ¶ 18.)

ACE's expert, Louis Fey, argues loss experience does not adequately describe the process for calculating a premium. He points to one calculation that shows a charge for UM coverage. (Dkt. 36-1 at 60.) He argues that his calculation played a part in how ACE calculated the final premium. ( Id. at 109:1–8.) He ignores the fact that the basis for the premium was the initial policy that did not include UM coverage. Fey even admits this fee was a calculation. ( Id. at 106:25–107:7.)

Fey also admits that ACE's underwriters would have the most information. ( Id. at 114:4–8.) Busto, one of ACE's underwriters, testified that ACE performed the calculation Fey identified "to determine a benchmark premium should the insured have subsequently elected to purchase UM coverage contrary to our knowledge of their intent." (Dkt. 43-1 ¶ 25.) But, ACE believed ValleyCrest intended to reject UM coverage that year as it had every year in the past. ACE never thought ValleyCrest intended to change its elections. Busto's testimony was undisputed, making Fey's argument that the calculation actually impacted the premium pure speculation. That speculation provides no evidence that ACE or ValleyCrest intended to include UM coverage in the 2013–2014 policy. See Bankers Health & Life Ins. Co. v. Fryhofer , 114 Ga.App. 107, 150 S.E.2d 365 (1966), ("[S]peculation and conjecture by an expert is still speculation and conjecture, and will not support a verdict."); Whiteside v. Decker, Hallman, Barber & Briggs, P.C. , 310 Ga.App. 16, 712 S.E.2d 87 (2011) ("An expert opinion that is wholly speculative or conjectural is without foundation, has no probative value, and creates no factual issue.").

The parties discussed two other pieces of parole evidence: the insurance binder and a Notice Regarding UM Coverage document. Both show ValleyCrest's clear, unambiguous, and decisive intention to reject UM coverage.

The insurance binder is a contract of temporary insurance that sets forth the policy's terms and conditions pending the issuance of a formal policy. (Dkt. 43 ¶ 15.) In other words, ACE sent the binder to ValleyCrest to lay out the insurance coverages it was intending to provide while still working to issue the final policy. The binder states UM coverage would be "rejected where allowed." (Dkt. 39-13 at 45.) The next page includes a table that lists all fifty states and had entries for each state, one in a column entitled "Rejection Permitted" (to indicate whether state law permits an insured to reject UM coverage) and one in a column entitled "Proposed Herein" (to indicate the coverage ACE proposed in the binder). ( Id. at 46.) The Georgia entry has

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the word "yes" under Rejection Permitted. In the column entitled "Proposed Herein," the Georgia entry says "Coverage Rejected." ( Id. ) These entries show ACE's unambiguous intention to issue a policy with no UM coverage in Georgia.

On another page, the binder states "[i]n the event we do not receive the properly executed forms and we apply UM/UIM and PIP limits as described herein, an additional charge for this coverage will be added to your premium." ( Id. at 15; Dkt. 39-13 at 19.) Defendant claims this passage shows ACE anticipated improper rejections and planned to charge for UM coverage when that occurred. Defendant further argues that, since ValleyCrest did not properly execute the rejection form (for the reasons set forth above), ACE must have charged ValleyCrest for UM coverage. Busto explained that this provision in the binder would have allowed ACE to modify the proposed UM coverages and to collect additional premiums for that coverage. (Dkt. 43 ¶ 16.) But, he explained that ACE did not do so in this instances because ValleyCrest had rejected UM coverage in all prior years. ( Id. ) In fact, he said that ValleyCrest had made the same mistake in the preceding years and, because ACE knew ValleyCrest intended to reject UM coverage in Georgia each year, it never issued policies with UM coverage in Georgia. ( Id. ¶ 12.) He testified that ACE issued the 2013–2014 policy to ValleyCrest "as bound — without UM coverage in Georgia — consistent with the insured's prior policies issued by AAIC, the insured's prior rejection of UM coverage from 2009, the 2013 renewal insurance submission, the 2013 written correspondence with [ValleyCrest's] broker confirming intent to reject UM coverage, [ACE's] proposal, and the 2013 coverage binder." ( Id. ) Defendant presented no evidence to rebut or challenge this testimony. In the light of the undisputed evidence, the insurance binder also shows ValleyCrest's and ACE's unambiguous intention to reject UM coverage.

The declarations page of the binder also clearly shows ValleyCrest and ACE did not intend to include UM coverage. The declarations page has numbers that show the vehicles the policy covers. (Dkt. 39-5 at 76.) The symbol "1" shows coverage for any auto. (Dkt. 50-2 ¶ 8.) The symbol "6" provides coverage for "those autos [ValleyCrest] own[s] that because of the law of the State where they are licensed or principally garaged are required to have and cannot reject Uninsured Motorists Coverage." ( Id. ¶ 9.) The declarations page provides UM coverage under symbol "6" and the vehicle in which Mr. Menchaca-Delgado was killed was licensed in Georgia. (Dkts. 35-1 at 3; 39-5 at 76.) Because UM coverage can be rejected in Georgia, the declarations page shows the policy did not intend to include UM coverage for that vehicle.

The so-called Notice Regarding UM Coverage document does not suggest otherwise. In renewing the policy, ACE sent ValleyCrest a form entitled "Georgia Policyholder Notice Regarding Uninsured Motorists Coverage." (Dkt. 35-9 at 2.) This form states "[o]ur records show that your policy contains Uninsured Motorist (UM) Coverage." ( Id. ) Plaintiff claims this notice shows ACE believed ValleyCrest had UM coverage in Georgia. The form, however, also states "[t]his document includes general descriptions of coverage. However, no coverage is provided by this document. You should read your policy and review your declarations Page(s) and /or Schedule(s) for complete information on the coverage you are provided." ( Id. ) ACE's former underwriter's undisputed testimony explained that this was a form letter sent to ValleyCrest and all other insured. It was not adopted to reflect ValleyCrest's actual insurance coverage but rather "was simply a policyholder notice that explains

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available coverage options as a tool for insureds in making their Georgia coverage elections." (Dkt. 43-1 ¶ 19.) This document does not provide any evidence that ValleyCrest elected or paid for UM coverage.

After reviewing the extrinsic evidence, the Court finds there is no question of material fact as to ACE's and ValleyCrest's intentions — ValleyCrest meant to reject UM coverage and ACE intended to exclude it from the policy. Interpreting the contract alone, in the light of the insurance canons, the Court would find UM coverage. The Court, however, based on the clarity of the parole evidence, modifies the contract to exclude Plotkin's first signature. As a result, the contract does not include UM coverage.

IV. Conclusion

The Court GRANTS Plaintiff's Motion for Summary Judgment (Dkt. 39) and DENIES Defendant's Motion for Summary Judgment (Dkt. 35).

SO ORDERED this 25th day of November, 2019.