SECOND DIVISION BARNES, P. J., MILLER and RAY, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
November 20, 2013
In the Court of Appeals of Georgia A13A1085. EELLS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
RAY, Judge.
Christopher Eells appeals from the trial court’s order dismissing his complaint
and granting summary judgment in favor of State Farm Mutual Automobile Insurance
Company. Eells contends in several related enumerations that the trial court erred in
finding that he did not give State Farm sufficient, required notice of the accident in
a timely fashion; he also argues that the trial court erred in failing to allow a jury to
determine whether he was a resident in his parents’ home for purposes of qualifying
for insurance coverage. For the reasons that follow, we affirm in part, reverse in part,
and remand this case to the trial court for further proceedings not inconsistent with
this opinion. Pursuant to OCGA § 9-11-56 (c), summary judgment is appropriate when no
genuine issue of material fact exists and when the moving party is entitled to
judgment as a matter of law.
On appeal from the grant or denial of a motion for summary judgment, we apply a de novo standard of review, and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. A defendant may prevail on summary judgment by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. . . . A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.
(Citations and punctuation omitted; emphasis omitted.) Hearn v. Dollar Rent A Car,
315 Ga. App. 164, 164 (726 SE2d 661) (2012).
Properly viewed, the evidence shows that while crossing Piedmont Road in
Atlanta on foot on February 28, 2009, Eells was struck and injured by a passing
2 vehicle in a hit-and-run accident. Eells was severely injured and required post-
accident care, which his parents provided for him in their home. A few months after
the accident, Eells’ mother told the family’s State Farm agent about the accident
during a telephone call when she contacted the agent about an unrelated matter. She
did not make any formal claim because the Eells family was unaware that their
insurance policy might cover the accident, nor did the agent advise her to notify the
company of the accident in writing or to fill out a claims form. Shortly before the
statute of limitation would have run, Eells’ father was speaking socially to his son’s
present counsel and became aware for the first time that there might be a viable
insurance claim. Eells then gave formal notice to State Farm and filed a claim.
On February 17, 2011, Eells sued the uninsured motorist, John Doe, and
perfected service on State Farm as the uninsured motorist carrier. Eells sought
coverage from State Farm under four automobile insurance policies issued to Eells’
father. State Farm moved for summary judgment. The trial court granted that motion,
finding in a three-sentence order that the oral notice to a claims representative did not
qualify as the written notice required by the insurance policy and that the nearly two-
3 year delay in notifying State Farm of the accident was without legal justification.1
Eells appeals this decision.
1. In several related enumerations, Eells contends that the trial court erred in
determining that the oral notice of the accident that his mother gave to a State Farm
representative was insufficient, that the written notice he gave to State Farm was
untimely, and that he lacked legal justification for the delay.
(a) Eells first argues that the trial court erred in granting State Farm’s motion
for summary judgment because the policy provisions requiring timely, written notice
are not conditions precedent to coverage. State Farm counters that these provisions
are conditions precedent, which Eells failed to satisfy such that coverage is barred.
In the recent case of Lankford v. State Farm Mutual Automobile Ins. Co., 307
Ga. App. 12 (703 SE2d 436) (2010), we determined that the exact policy language at
issue in the instant case established a condition precedent to coverage. Eells’ policies
required that he report a hit-and-run accident to State Farm “within 30 days[,]” and,
as in Lankford, Eells’ policies also
1 We note, but do not decide, that the “EFILED” order may not comply with the rules of this Court, which require that trial court orders subject to appeal must contain the signature of the trial judge, and that conformed signatures, stamped signatures, and signatures with permission are not permitted. See Court of Appeals Rules 1(a), 17, 30(a) and 30 (e).
4 required that he provide written notice of the accident or loss to State Farm or one of its agents ‘as soon as reasonably possible.’ Moreover, the policies provide that as a condition of insurance coverage, ‘[t]here is no right of action against [State Farm] . . . until all the terms of this policy have been met.’
(Emphasis supplied.) Id. at 14. It is undisputed that Eells did not meet these precise
notice requirements and did not provide written notice to State Farm until almost two
years after the accident.
It is well established that a notice provision expressly made a condition precedent to coverage is valid and must be complied with, absent a showing of justification. Where an insured has not demonstrated justification for failure to give notice according to the terms of the policy, . . . then the insurer is not obligated to provide either a defense or coverage.
(Footnote omitted.) Id., citing Federated Mutual Ins. Co. v. Ownbey Enterprises, 278
Ga. App. 1, 3 (627 SE2d 917) (2006).
Although the instant case is factually similar to Gregory v. Allstate Ins. Co.,
134 Ga. App. 461, 463 (214 SE2d 696) (1975), in which this Court stated that
language in an insurance policy establishing a condition precedent to suit against the
insurer did not create a condition precedent where the uninsured motorist was sued
5 and the insurer merely intervened, that case is inapplicable here. State Farm
participated in the case in its own name, contesting not just the liability of the alleged
tortfeasor, which it may do without participating as a party in the case, but also its
own contractual liability, which it may not do without assuming the status of a named
party. Maxwell v. State Farm Mutual Automobile Ins. Co., 196 Ga. App. 545, 545-546
(1) (396 SE2d 291) (1990). Accord Moss v. Cincinnati Ins. Co., 154 Ga. App. 165,
170 (268 SE2d 676) (1980).
(b) Eells contends, however, that coverage should not be barred because State
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SECOND DIVISION BARNES, P. J., MILLER and RAY, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
November 20, 2013
In the Court of Appeals of Georgia A13A1085. EELLS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
RAY, Judge.
Christopher Eells appeals from the trial court’s order dismissing his complaint
and granting summary judgment in favor of State Farm Mutual Automobile Insurance
Company. Eells contends in several related enumerations that the trial court erred in
finding that he did not give State Farm sufficient, required notice of the accident in
a timely fashion; he also argues that the trial court erred in failing to allow a jury to
determine whether he was a resident in his parents’ home for purposes of qualifying
for insurance coverage. For the reasons that follow, we affirm in part, reverse in part,
and remand this case to the trial court for further proceedings not inconsistent with
this opinion. Pursuant to OCGA § 9-11-56 (c), summary judgment is appropriate when no
genuine issue of material fact exists and when the moving party is entitled to
judgment as a matter of law.
On appeal from the grant or denial of a motion for summary judgment, we apply a de novo standard of review, and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. A defendant may prevail on summary judgment by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. . . . A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.
(Citations and punctuation omitted; emphasis omitted.) Hearn v. Dollar Rent A Car,
315 Ga. App. 164, 164 (726 SE2d 661) (2012).
Properly viewed, the evidence shows that while crossing Piedmont Road in
Atlanta on foot on February 28, 2009, Eells was struck and injured by a passing
2 vehicle in a hit-and-run accident. Eells was severely injured and required post-
accident care, which his parents provided for him in their home. A few months after
the accident, Eells’ mother told the family’s State Farm agent about the accident
during a telephone call when she contacted the agent about an unrelated matter. She
did not make any formal claim because the Eells family was unaware that their
insurance policy might cover the accident, nor did the agent advise her to notify the
company of the accident in writing or to fill out a claims form. Shortly before the
statute of limitation would have run, Eells’ father was speaking socially to his son’s
present counsel and became aware for the first time that there might be a viable
insurance claim. Eells then gave formal notice to State Farm and filed a claim.
On February 17, 2011, Eells sued the uninsured motorist, John Doe, and
perfected service on State Farm as the uninsured motorist carrier. Eells sought
coverage from State Farm under four automobile insurance policies issued to Eells’
father. State Farm moved for summary judgment. The trial court granted that motion,
finding in a three-sentence order that the oral notice to a claims representative did not
qualify as the written notice required by the insurance policy and that the nearly two-
3 year delay in notifying State Farm of the accident was without legal justification.1
Eells appeals this decision.
1. In several related enumerations, Eells contends that the trial court erred in
determining that the oral notice of the accident that his mother gave to a State Farm
representative was insufficient, that the written notice he gave to State Farm was
untimely, and that he lacked legal justification for the delay.
(a) Eells first argues that the trial court erred in granting State Farm’s motion
for summary judgment because the policy provisions requiring timely, written notice
are not conditions precedent to coverage. State Farm counters that these provisions
are conditions precedent, which Eells failed to satisfy such that coverage is barred.
In the recent case of Lankford v. State Farm Mutual Automobile Ins. Co., 307
Ga. App. 12 (703 SE2d 436) (2010), we determined that the exact policy language at
issue in the instant case established a condition precedent to coverage. Eells’ policies
required that he report a hit-and-run accident to State Farm “within 30 days[,]” and,
as in Lankford, Eells’ policies also
1 We note, but do not decide, that the “EFILED” order may not comply with the rules of this Court, which require that trial court orders subject to appeal must contain the signature of the trial judge, and that conformed signatures, stamped signatures, and signatures with permission are not permitted. See Court of Appeals Rules 1(a), 17, 30(a) and 30 (e).
4 required that he provide written notice of the accident or loss to State Farm or one of its agents ‘as soon as reasonably possible.’ Moreover, the policies provide that as a condition of insurance coverage, ‘[t]here is no right of action against [State Farm] . . . until all the terms of this policy have been met.’
(Emphasis supplied.) Id. at 14. It is undisputed that Eells did not meet these precise
notice requirements and did not provide written notice to State Farm until almost two
years after the accident.
It is well established that a notice provision expressly made a condition precedent to coverage is valid and must be complied with, absent a showing of justification. Where an insured has not demonstrated justification for failure to give notice according to the terms of the policy, . . . then the insurer is not obligated to provide either a defense or coverage.
(Footnote omitted.) Id., citing Federated Mutual Ins. Co. v. Ownbey Enterprises, 278
Ga. App. 1, 3 (627 SE2d 917) (2006).
Although the instant case is factually similar to Gregory v. Allstate Ins. Co.,
134 Ga. App. 461, 463 (214 SE2d 696) (1975), in which this Court stated that
language in an insurance policy establishing a condition precedent to suit against the
insurer did not create a condition precedent where the uninsured motorist was sued
5 and the insurer merely intervened, that case is inapplicable here. State Farm
participated in the case in its own name, contesting not just the liability of the alleged
tortfeasor, which it may do without participating as a party in the case, but also its
own contractual liability, which it may not do without assuming the status of a named
party. Maxwell v. State Farm Mutual Automobile Ins. Co., 196 Ga. App. 545, 545-546
(1) (396 SE2d 291) (1990). Accord Moss v. Cincinnati Ins. Co., 154 Ga. App. 165,
170 (268 SE2d 676) (1980).
(b) Eells contends, however, that coverage should not be barred because State
Farm had actual notice of the accident through his mother’s conversation about it
with the State Farm agent.
In State Farm’s brief in support of its motion for summary judgment, the carrier
conceded that “State Farm may have had some knowledge of the accident because a
few months after the accident [Eells’] mother told the State Farm insurance agent
about the accident in passing.” However, this Court has repeatedly determined that
even if the insurer receives oral or other notice that does not comply with the policy’s
written notice requirement, that notice is insufficient. For example, in a similar
instance, where the insured’s policy required written notice within 30 days of an
accident as a condition precedent to coverage and the insured testified that he gave
6 oral notice within the applicable time frame, this Court found the notice insufficient
as a matter of law. Corbin v. Gulf Ins. Co., 125 Ga. App. 281, 284 (187 SE2d 312)
(1972). Accord Gurley v. Ford Motor Credit Co., 163 Ga. App. 875, 876 (1) (296
SE2d 171) (1982); Moss, supra at 165. Compare Southern Mutual Ins. Co. v. Mason,
213 Ga. App. 584, 587 (3) (445 SE2d 569) (1994) (no indication whether or not
notice requirement was a condition precedent to coverage).
(c) Eells next argues that the trial court erred in determining that there was no
legal justification for the nearly two-year delay between the time of the accident and
the time he provided written notice to State Farm, and that the trial court thus erred
in granting summary judgment. He contends that he did not know he had coverage
and that the delay was justified because the policy language was ambiguous as to
whether an insured pedestrian, as opposed to an insured occupying a vehicle, would
be covered.
Two portions of the policy are primarily at issue here. “Section III – Uninsured
Motor Vehicle – Coverage U,” provides that
We will pay damages for bodily injury and property damage an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle . . . . Uninsured Motor Vehicle – means: . . . a “hit-and- run” land motor vehicle whose owner or driver remains unknown, if: (a)
7 such vehicle strikes: (1) the insured or the vehicle the insured is occupying and causes bodily injury to the insured[.]
(Emphasis omitted; emphasis supplied.) The policy further provides that “Insured –
means the person or persons covered by the uninsured motor vehicle coverage.”
(Emphasis in original.) However, in a section entitled “Reporting A Claim – Insured’s
Duties” under the heading “Other Duties Under Medical Payments, Uninsured Motor
Vehicle, Death, Dismemberment and Loss of Sight and Loss of Earnings Coverages”
(emphasis supplied), the policy states that “under the uninsured motor vehicle
coverage” the person making the claim shall “(1) report a ‘hit-and-run’ accident to the
police within 10 days and to us within 30 days. (2) let us see the insured car the
person occupied in the accident and any damaged property.” (Emphasis omitted;
emphasis supplied.)
While it is true that an insured “is chargeable with awareness of the insurance
coverage it solicited, and with checking the policy to see that proper coverage had
been obtained,” Atlanta Intl. Properties, Inc. v. Georgia Underwriting Assn., 149 Ga.
App. 701, 702 (2) (256 SE2d 472) (1979), it is well settled that an insurance policy
must be read from the point of view of a layperson, rather than an insurance expert
8 or attorney. State Farm Mutual Automobile Ins. Co. v. Staton, 286 Ga. 23, 25 (685
SE2d 263) (2009). The fact that Eells’ father is an attorney is irrelevant here.
Contract construction is a question of law for the court, unless, after applying
the rules of contract interpretation, an uncertainty still remains as to which of two or
more possible meanings represents the parties’ true intentions. Davis v. United
American Life Ins. Co., 215 Ga. 521, 526-527 (2) (111 SE2d 488) (1959). Because
the trial court’s order does not reach the issue of whether the policy is ambiguous, we
do not address it here. Strength v. Lovett, 311 Ga. App. 35, 44 (2) (b) (714 SE2d 723)
(2011). Upon remand, the trial court should consider whether and to what extent the
outlined policy provisions are ambiguous. However, we note that if an insurance
contract contains “contradictory clauses or other ambiguities . . . they must be
construed favorably to the insured and against the insurer.” Davis, supra at 527 (2).
Should the trial court find that any ambiguity cannot be resolved by the normal rules
of contract construction, then it necessarily follows that
the adequacy of the notice and the merit of [the insured’s] claim of justification are ones of fact which must be resolved by a jury as they are not susceptible to being summarily adjudicated as a matter of law.
9 (Citations omitted.) State Farm Mutual Automobile Ins. Co. v. Sloan, 150 Ga. App.
464, 466 (2) (258 SE2d 146) (1979).
2. Eells argues that the trial court erred in failing to allow a jury to decide the
fact question of whether he was a resident in his parents’ household. However,
because the trial court did not address this argument in its order, we will not address
it here. Strength, supra.
In summary, we affirm as to the trial court’s determination that the oral notice
provided was insufficient, but as to whether the contract provisions were ambiguous
and, if so, whether Eells’ delay in providing written notice was justified, we reverse
and remand to the trial court for further proceedings not inconsistent with this
opinion.
Judgment affirmed in part and reversed in part; case remanded. Barnes, P. J.,
and Miller, J., concur.