Garner & Glover Co. v. Barrett

738 S.E.2d 721, 321 Ga. App. 205, 2013 Fulton County D. Rep. 665, 2013 WL 979464, 2013 Ga. App. LEXIS 194
CourtCourt of Appeals of Georgia
DecidedMarch 14, 2013
DocketA12A2443
StatusPublished
Cited by10 cases

This text of 738 S.E.2d 721 (Garner & Glover Co. v. Barrett) 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.

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Garner & Glover Co. v. Barrett, 738 S.E.2d 721, 321 Ga. App. 205, 2013 Fulton County D. Rep. 665, 2013 WL 979464, 2013 Ga. App. LEXIS 194 (Ga. Ct. App. 2013).

Opinion

Boggs, Judge.

In this interlocutory appeal, Garner and Glover Company (“Garner”), an insurance producer, contends it was entitled to summary judgment in its favor because (1) it owed no duty to notify an excess insurance carrier of a claim on behalf of an additional insured, Atlanta Gas Light Company (“AGL”); and (2) the underlying plaintiffs cannot file a direct action against it based upon a settlement with and assignment from AGL. For the reasons explained below, we reverse.

“On appeal from the grant or denial of summary judgment, we apply a de novo standard of review.” (Citation omitted.) Coca-Cola Bottlers’ Sales & Svcs. Co. v. Novelis Corp., 311 Ga. App. 161 (715 SE2d 692) (2011). “[T]he moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” (Punctuation omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); see also OCGA § 9-11-56 (c). So viewed, the record shows that Garner assisted its client, Coosa Valley Contractors, Inc., with the procurement of two policies of insurance that named AGL as an additional insured: a $1 million general liability policy with Valley Forge Insurance Company (“CNA”) and a $1 million commercial umbrella excess liability policy with National Union Insurance Company (“National”).

On July 19, 2003, an AGL claims administrator, Carolyn Strickland, sent a Garner employee, Hannah Chambley, the following letter via fax:

I am writing to notify you of a complaint with which we were served on July 1, 2003. We are an additional insured on policy number C144164548 with Garner & Glover Company for all occurrences between July 1, 2001 and July 1, 2002 (“Policy”). Accordingly, this is a request for coverage under the Policy. The Company hereby tenders defense to Garner & Glover.

Included with the letter were the complaint filed against AGL by the Barretts and a copy of the certificate of insurance issued to Coosa Valley Contractors. The attached complaint prayed for damages of $10 million. After learning from Chambley that the general liability [206]*206carrier was CNA, Strickland sent a copy of the complaint directly to CNA. In response to Strickland’s letter, Chambley also forwarded it to CNA.

The certificate of insurance included with Strickland’s letter shows that the policy number listed in her letter corresponds with the general liability policy issued by CNA; the excess policy insurance number was also listed on the same page of the certificate. Strickland testified that she referenced only the general liability policy number in her letter because “[t]hat’s all [she] ever did.” Although she admitted that she did not ask Garner to notify all insurance carriers of the claim, it was her expectation that Garner would notify the excess carrier. She could not explain the basis for this expectation, testifying “I just know I had to put [Garner] on notice to keep us out of default, and notifying the excess carrier, I never did. I guess the supervisor did that.” She testified that she did not know “what else [her] supervisor would do in that capacity, if it was to reach more than what was covered under general liability.” She also admitted that she had no experience with any insurance producer notifying an excess carrier.

Before sending the July 19, 2003 letter, Strickland had had no dealings with Garner or its employees. She explained that when AGL received a claim involving a contractor generally, it would pull the certificate of insurance on file and contact the insurance producer listed on the form because AGL was usually listed as an additional insured on the certificate of insurance. She explained that sometimes she would obtain information from the producer to notify the insurance carrier herself, and sometimes the producer would notify the insurance carrier for her. She did not read the complaint before she forwarded it to Garner.

Chambley, the Garner employee, testified that she did not read the complaint attached to Strickland’s letter. She agreed that it would have been “CNA’s decision whether to notify the excess carrier.” The principals of Garner testified that the agency did not automatically notify excess insurance carriers in all cases. They testified that typically, the adjuster handling the underlying policy claim would make the decision about whether the excess insurance carrier should be notified after investigating the facts of the particular claim. They explained that notifying the excess insurance carrier of any and all claims could harm the interest of the named insured and agency client during policy renewal with regard to premiums.

In this case, Garner notified the excess carrier, National, in September 2007 when the CNAadjuster handling the claim requested that it do so. National subsequently denied coverage, in part, based upon AGL’s failure to notify it “as soon as practicable” after a suit was [207]*207brought against it that was “reasonably likely to involve” the excess policy. AGL subsequently agreed to a $2 million consent judgment in exchange for the Barretts’ agreement not to enforce it against AGL. The consideration for the Barretts’ agreement included the assignment of AGL’s claims against National and Garner to the Barretts in addition to CNA’s payment of its $1 million policy limits.

The Barretts, as assignees of AGL, filed suit against National and Garner to collect the remaining $1 million and an additional $500,000 in attorney fees and bad faith penalties. After this court determined that a pollution exclusion did not bar coverage under National’s policy,1 the Barretts settled with National for $800,000 and dismissed National from the suit. Garner moved for summary judgment, and the trial court denied the motion based upon its conclusion that “there is at least an issue of fact as to whether [Garner] should have notified National.”

Garner contends that the trial court erred by finding an issue of fact regarding whether it breached a duty to notify the excess carrier on behalf of AGL because it owed no such duty. After examining Georgia law regarding duties owed to additional insureds by an insurance producer, we agree.

The Barretts point to no case law in Georgia, or from any other jurisdiction, directly addressing the scope of any duty owed by an insurance producer to notify an excess insurance carrier on behalf of an additional insured. In support of their claim, they rely upon their expert’s affidavit asserting that such a duty existed under the particular facts of this case and the law regarding the voluntary assumption of a duty generally. While there is no Georgia law addressing this particular issue, Garner relies upon an analogous case addressing whether an insurance agent may be liable to an additional insured for failing to procure a policy. See Workman v. McNeal Agency, 217 Ga. App. 686 (458 SE2d 707) (1995).

In Workman, we held that an additional insured could not assert claims for breach of contract and negligence when an insurance agent did not procure insurance continuing her coverage on the property leased by the named insured and client of the insurance agency. Id.

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738 S.E.2d 721, 321 Ga. App. 205, 2013 Fulton County D. Rep. 665, 2013 WL 979464, 2013 Ga. App. LEXIS 194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garner-glover-co-v-barrett-gactapp-2013.