Eells v. State Farm Mutual Automobile Insurance

752 S.E.2d 70, 324 Ga. App. 901, 2013 Fulton County D. Rep. 3845, 2013 WL 6085288, 2013 Ga. App. LEXIS 952
CourtCourt of Appeals of Georgia
DecidedNovember 20, 2013
DocketA13A1085
StatusPublished
Cited by18 cases

This text of 752 S.E.2d 70 (Eells v. State Farm Mutual Automobile Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eells v. State Farm Mutual Automobile Insurance, 752 S.E.2d 70, 324 Ga. App. 901, 2013 Fulton County D. Rep. 3845, 2013 WL 6085288, 2013 Ga. App. LEXIS 952 (Ga. Ct. App. 2013).

Opinion

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 [902]*902other 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, punctuation and 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 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-year delay in notifying State Farm of the accident was without legal justification.1 Eells appeals this decision.

[903]*9031. 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 Mut. Auto. 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 Lank-ford, Eells’ policies also

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, “[tjhere 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 Mut. 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 [904]*904which 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 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 Mut. Auto. 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.

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752 S.E.2d 70, 324 Ga. App. 901, 2013 Fulton County D. Rep. 3845, 2013 WL 6085288, 2013 Ga. App. LEXIS 952, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eells-v-state-farm-mutual-automobile-insurance-gactapp-2013.