Case: 18-13555 Date Filed: 05/01/2020 Page: 1 of 25
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-13555 _______________________
D.C. Docket No. 1:16-cv-03058-SCJ
GRANGE MUTUAL CASUALTY COMPANY,
Plaintiff-Appellee,
versus
TERRI SLAUGHTER, et al.,
Defendants,
DAMITRA BAISDEN, FOUR SEASONS TRUCKING, INC., FOUR SEASONS TRUCKING & GRADING, INC.,
Defendants-Appellants.
________________________
Appeals from the United States District Court for the Northern District of Georgia ________________________
(May 1, 2020) Case: 18-13555 Date Filed: 05/01/2020 Page: 2 of 25
Before ED CARNES, Chief Judge, TJOFLAT, and BRANCH, Circuit Judges.
BRANCH, Circuit Judge:
Driving a truck owned by Four Seasons Trucking (“FST”), Mark Lucas
crossed the center line and collided with two vehicles—one right after the other.
Grange Mutual Casualty Company (“Grange”) insured the truck. But the truck
was not listed on FST’s policy. It was listed instead on the policy of Four Seasons
Trucking & Grading (“T&G”), FST’s sister company.
Grange sued Damitra Baisden (the driver of one of the impacted vehicles),
FST, and T&G (collectively, “Defendants”). 1 Grange sought declaratory relief,
asking the district court to declare its obligations under three insurance policies—
two issued to FST and one issued to T&G. The district court said coverage existed
under the T&G policy but not the FST policies. It also said the chain of events
constituted a single accident. Baisden, FST, and T&G now appeal, challenging the
coverage ruling. FST and T&G also challenge the number-of-accidents ruling.
FST owned the truck in question, but the truck was listed on T&G’s insurance
policy. The parties agree that this case turns on whether there was a change in the
truck’s legal status, such that FST could have “borrowed” its own truck back from
T&G. Defendants contend the necessary change in legal status came in the form of
1 Grange also sued the driver of the other impacted vehicle. That driver is not a party to this appeal. 2 Case: 18-13555 Date Filed: 05/01/2020 Page: 3 of 25
a written lease. But they failed to introduce at the summary judgment stage
evidence showing that the lease gave exclusive use rights to T&G. In the
particular circumstances of this case, their failure to introduce such evidence
means the district court rightly held that no reasonable factfinder could have found
in their favor. Although they introduced new evidence purporting to establish that
the lease granted T&G exclusive use rights in their motion for reconsideration, the
district court properly denied that motion, reasoning that the evidence could have
been produced earlier. Finally, we agree with the district court that, under the
policies and under Georgia law, the events here constituted a single accident.
Accordingly, we affirm.
I. BACKGROUND
A. Underlying Facts
On October 15, 2015, Lucas, an FST employee acting in the course of his
employment, was driving a dump truck owned by FST. The work did not involve
T&G. Lucas collided with one vehicle, and he also collided with a vehicle being
driven by Baisden. The drivers of both vehicles filed separate suits against FST
and Grange in Georgia state court—one in the State Court of Fulton County and
the other in the State Court of DeKalb County. According to Baisden’s complaint,
Lucas crossed the center line, collided with the car in front of her, and,
immediately afterward, collided with her car.
3 Case: 18-13555 Date Filed: 05/01/2020 Page: 4 of 25
While the two lawsuits were pending in state court, Grange brought a
declaratory judgment action in the United States District Court for the Northern
District of Georgia. Grange sought to understand its obligations under the
insurance policies it issued to FST and T&G. As relevant here, Grange issued
commercial automobile liability insurance policies to FST (the “FST policy”) and
T&G (the “T&G policy”). It also issued to FST a commercial umbrella policy,
which applies only if the FST policy applies.
Although FST owned the truck Lucas was driving, the truck was not listed
as a “Covered Auto[] You Own” on the FST policy. Instead, the truck was listed
on T&G’s policy. The question for the district court, then, was what Grange owed
under any of these three policies.2
Certain evidence is particularly relevant to answering that question. Natalie
Atkinson, president of FST and T&G, testified at her 2016 deposition that T&G
never purchased or owned any trucks. She said FST owned the trucks and leased
them to T&G. She said it “ha[d] been a few years” since FST had leased a truck to
T&G. She further stated that when they “initially moved some of the trucks over,
because they were owned by [FST]. . . [they] drew up a lease agreement to lease it
to [T&G].” But she was “not sure where to find” the written lease agreement.
When asked if the truck in question had been leased to T&G at the time of the
2 Georgia law applies to all the policies. 4 Case: 18-13555 Date Filed: 05/01/2020 Page: 5 of 25
accident, she responded, “I believe so.” Nevertheless, she testified that Lucas was
working only for FST, not for T&G, on the day of the accident. In other words,
FST had allegedly borrowed its truck back from T&G, which had purportedly
leased the truck.
B. The District Court’s Orders
Because this appeal hinges on the parties’ arguments regarding the district
court’s orders, we recount those orders in detail. We first examine the summary
judgment order, and we then turn to the order denying reconsideration.
1. Liability Under the T&G Policy
The district court first concluded that Grange was liable under the T&G
policy. Under that policy, the truck, which was specifically listed (incorrectly) as a
“covered” auto T&G “own[s],” thus qualified as “Any ‘Auto’.” To the district
court, it did not matter that the truck was erroneously listed as “owned” by T&G,
as “[t]here is no serious dispute that the truck qualifies as ‘any “auto.”’”
Moreover, although Lucas was working for FST at the time of the accident, he had
been added to the T&G policy as an insured. The policy required Grange to “pay
all sums an ‘insured’ legally must pay as damages because of ‘bodily injury’ or
‘property damage’ to which this insurance applies, caused by an ‘accident’ and
resulting from the ownership, maintenance or use of a covered ‘auto.’” Thus,
Grange was liable under the T&G policy.
5 Case: 18-13555 Date Filed: 05/01/2020 Page: 6 of 25
Grange does not appeal the finding of its liability under the T&G policy.
But we discuss it because Baisden points to what she contends is an internally
inconsistent remark in the district court’s summary judgment order. In rejecting
Defendants’ argument that T&G “owned” the truck simply because it was listed as
such in T&G’s insurance policy, the district court stated, “The evidence before the
Court all indicates that the truck was being leased by T&G, and thus was not an
‘owned’ auto.” Baisden argues that this statement contradicts the court’s next
holding.
2. Liability Under the FST Policy
The district court next determined Grange was not liable under the FST
policy. That policy, unlike the T&G policy, does not provide liability coverage for
“Any ‘Auto’”; instead, it covers only “Specifically Described ‘Autos’,” “Hired
‘Autos’ Only,” and “Nonowned ‘Autos’ Only.” A “Specifically Described
‘Auto[]’” is one listed in the declarations, and the truck was not listed there. Nor
was the truck a “Nonowned ‘Auto[]’.” As discussed, FST owned the truck. So the
question is whether the truck was a “Hired ‘Auto[]’”—an auto FST “lease[d],
hire[d], rent[ed] or borrow[ed].” As applicable here, did FST borrow the truck
back from T&G?
6 Case: 18-13555 Date Filed: 05/01/2020 Page: 7 of 25
The district court said it did not.3 It determined that, absent a “contractual
relationship giving exclusive use rights to T&G,” FST would have always been
entitled to use of the truck—so it could not have “borrowed” it back. With respect
to evidence indicating there was a lease, FST and T&G pointed to affidavits of
Natalie Atkinson (president of FST and T&G) and Audley Atkinson (FST’s
supervisor of operations). Natalie’s affidavit said that from “October 15, 2014 up
through and including October 15, 2015,” the truck “was under lease” from FST to
T&G. Audley’s affidavit said that he selected the truck as one of the vehicles to
be leased from FST to T&G and that the truck “was under lease” from “October
15, 2014 up through and including October 15, 2015.” Grange countered by
pointing to Natalie’s 2016 testimony that FST had not leased a vehicle in “a few
years.” Moreover, no written lease agreement was produced during discovery.
The district court explained that Natalie’s testimony was not fatal: a lease
agreement can last for many years. But, the district court opined, such an
agreement would have to be in writing to comply with Georgia’s statute of frauds.
Even assuming such a writing existed, the district court explained that the problem
was that the affidavits provided only a legal conclusion: an enforceable lease
existed. There was no evidence of lease payments, testimony regarding the length
3 But the court did reject Grange’s argument that FST could not possibly have borrowed back its own truck. 7 Case: 18-13555 Date Filed: 05/01/2020 Page: 8 of 25
of the lease or its terms, or consideration T&G provided for the right to use the
truck. Said the court: “A party cannot baldly assert that a contract existed any
more than they could flatly assert that the opposing party was negligent or
committed a tort.”4
3. Number of Accidents
Finally, also at issue was the number of accidents that occurred under the
T&G policy. The district court concluded the events constituted a single accident.5
Its conclusion had two bases. First, it pointed to State Auto Property and Casualty
Co. v. Matty, 690 S.E.2d 614 (Ga. 2010), where the Georgia Supreme Court
adopted the “cause” theory to define the word “accident” in insurance policies.
See id. at 617–18. “Under this theory, the number of accidents is determined by
the number of causes of the injuries, with the court asking if [t]here was but one
proximate, uninterrupted, and continuing cause which resulted in all of the injuries
and damage.” Id. at 617 (quotation marks omitted).
In the context of vehicle accidents involving multiple collisions that do not occur simultaneously (recognizing that it is almost impossible that such collisions can occur without any difference in time and place), courts look to whether, after the cause of the initial collision, the driver regained control of the vehicle before a subsequent collision, so that it can be said there was a second intervening cause and therefore a second accident. 4 Because it concluded Grange was not liable under the FST policy, the district court noted that there could be no liability under the umbrella policy.
5 The number of accidents matters because the T&G insurance policy limits the amount that Grange will pay “Per Accident.” 8 Case: 18-13555 Date Filed: 05/01/2020 Page: 9 of 25
Id. Defendants did not dispute that if State Auto controlled there was one
“accident.”
But Defendants did dispute whether State Auto controlled. They said the
policies themselves provided a definition of “accident,” which they indeed seem to
do: “‘Accident’ includes continuous or repeated exposure to the same conditions
resulting in ‘bodily injury’ or ‘property damage.’” The district court believed the
policy definition comported comfortably with the rule announced in State Auto.
But it alternatively rejected Defendants’ argument that multiple collisions can
never constitute the exact “same conditions,” per the policy definition. As the
district court put it,
[I]t is clear that the collisions in this case involved the “same conditions.”
On the same day, at the same time, on the same road, the truck “was sideswiped by [one] vehicle, and [then] . . . struck another vehicle.” Notably, a single motor vehicle accident report was prepared, treating both collisions under the same accident number. The description of the accident by the reporting officer and diagram demonstrating the events make clear that a single accident occurred. Of particular import is the fact that the accident report provided the same “condition information” for both collisions. This kind of information, not Defendants’ unique interpretation, is what is ordinarily meant by “same conditions.” Both collisions occurred under the same lighting conditions, the same weather conditions, the same road conditions, the same traffic conditions, etc.
(citations omitted). Moreover, the limit of insurance clause in the policies applies
“[r]egardless of the number of . . . vehicles involved in the ‘accident’.” The district 9 Case: 18-13555 Date Filed: 05/01/2020 Page: 10 of 25
court concluded that Defendants’ argument that any time separate collisions occur
there are different “conditions” would read that language out of the contract. It
also rejected Defendants’ suggestion that any time there is a multi-auto collision,
there are multiple accidents.
4. Motion for Reconsideration
Having obtained a favorable judgment only on the T&G policy, Defendants
moved for reconsideration. In support, they supplied a new affidavit from Natalie
Atkinson. Atkinson now testified to specific lease terms, such as T&G’s sole use
in exchange for listing the truck on its insurance policy. She also stated that she
had “spent numerous hours” trying to find the writing but could not. She thus
“believe[d] that the original of the lease was destroyed . . . when a tree fell on [a]
storage unit[] during a thunder storm a few years ago.” The electronic copy was
destroyed when FST’s “servers crashed several years ago, prior to 2015.” In
accordance with this affidavit, Defendants pointed to an exception to the best
evidence rule that allows oral testimony to prove the contents of a writing when the
writing has been lost.
The district court denied Defendants’ motion. The court noted that Atkinson
had originally testified that she was “not sure where to find” the written lease. But
it also pointed to her earlier failure, identified in its summary judgment order, to
testify regarding specific lease terms. Invoking Michael Linet, Inc. v. Village of
10 Case: 18-13555 Date Filed: 05/01/2020 Page: 11 of 25
Wellington, 408 F.3d 757, 763 (11th Cir. 2005), the district court rejected
Atkinson’s belated testimony because a motion for reconsideration “is not a
vehicle for introducing ‘evidence that could have been raised prior to the entry of
judgment.’”
* * *
To recap: (1) The district court granted Defendants’ motions for summary
judgment in part, declaring Grange was liable under the T&G policy; and (2) the
district court granted Grange’s motion for summary judgment in part, declaring
Grange was not liable under the FST (and accordingly umbrella) policy and that
there was a single accident. It then rejected Defendants’ attempt to amend the
judgment. Only Defendants have appealed.
II. THE FST POLICY
Baisden focuses her briefing on the issue of policy coverage. Specifically,
she argues that the district court erred in its finding that Grange is not liable under
the FST policy.
“We review a summary judgment ruling de novo, viewing the evidence and
all factual inferences therefrom in the light most favorable to the party opposing
the motion.” Essex Ins. Co. v. Barrett Moving & Storage, Inc., 885 F.3d 1292,
1299 (11th Cir. 2018) (quoting Shaw v. Conn. Gen. Life Ins. Co., 353 F.3d 1276,
1282 (11th Cir. 2003)). We also review de novo the interpretation of an insurance
11 Case: 18-13555 Date Filed: 05/01/2020 Page: 12 of 25
contract. James River Ins. Co. v. Ground Down Eng’g, Inc., 540 F.3d 1270, 1274
(11th Cir. 2008). Moreover, we “may affirm [the district court’s] judgment on any
ground that finds support in the record.” Wetherbee v. S. Co., 754 F.3d 901, 905
(11th Cir. 2014) (quoting Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th
Cir. 2001)).
As the Supreme Court has explained,
Rule 56[] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
Here, there is no genuine issue of material fact because Defendants did not
establish an essential element of their case on which the district court concluded
they would bear the burden of proof at trial: that a lease existed giving T&G
“exclusive use rights” at the time of the accident. The facts indicate that FST was
using the truck at the time of the accident. Because FST owned the truck, the
parties accepted the premise that there had to be some change in the truck’s legal
status, presumably via a lease providing T&G exclusive use rights, for FST to
12 Case: 18-13555 Date Filed: 05/01/2020 Page: 13 of 25
“borrow” back the truck from T&G.6 Defendants’ failure to produce any evidence
that T&G had exclusive use rights means that there was no genuine issue of
material fact and that Grange was entitled to judgment as a matter of law. See id.
at 323 (The “standard [for granting summary judgment] mirrors the standard for a
directed verdict . . . .” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986)).
But there are some problems with the district court’s order. Baisden
correctly points out that the order appears to be internally inconsistent. In its
finding on the T&G policy, the district court remarked, “The evidence before the
Court all indicates the truck was being leased by T&G, and thus was not an
‘owned’ auto.” It further stated that it was “undisputed that T&G leased the
truck.” Later, of course, the district court found there was not enough evidence
that the lease agreement would establish T&G’s exclusive use rights. The court
stated, “the evidence in the record indicates that no legal lease agreement between
FST and T&G existed in 2015.” (Emphasis added.) At that point in its analysis,
the court was considering whether there was a genuine issue of material fact not
6 We note that neither party has argued that it was unnecessary for T&G to have exclusive use rights to the truck in order for FST to borrow back a truck that it already owned. Thus, any argument by Defendants on that point is waived. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 1248, 1254 (11th Cir. 2011). 13 Case: 18-13555 Date Filed: 05/01/2020 Page: 14 of 25
just about whether a lease existed but also about whether a “legal lease agreement”
granting exclusive use rights existed.
Any discrepancy, however, is inconsequential. First, a big-picture point:
The T&G policy holding is not at issue in this appeal. And we are reviewing de
novo whether there was a genuine issue of material fact regarding the FST policy.
As for the substance of the district court’s order: The T&G policy holding was
based entirely on the fact that the truck in question was “Any ‘Auto’.” The district
court expressly noted that it did not matter whether the truck “was owned, rented,
borrowed, leased, etc.” Baisden tacitly acknowledges this point: “The district
court found that by the policy’s designating ‘any auto,’ it covered this Mack dump
truck. Baisden does not challenge this conclusion on appeal.” In the T&G policy
analysis, then, the district court’s remarks about the lease were dicta, nonessential
to the holding that the truck was “Any ‘Auto’” under that policy. In contrast, in
the FST policy analysis, any contrary remarks about the missing lease were central
to the holding.
Baisden also makes much of the district court’s invoking Georgia’s statute
of frauds.7 Baisden contends the statute of frauds is a “personal defense,” so any
argument based on the statute “would not inure to Grange, who was neither
7 The statute provides that to make certain “obligations binding on the promisor, the promise must be in writing and signed by the party to be charged therewith or some person lawfully authorized by him or her.” O.C.G.A. § 13-5-30(a). 14 Case: 18-13555 Date Filed: 05/01/2020 Page: 15 of 25
promisor nor promisee to the lease contract.” Moreover, there are exceptions to
the statute, including part performance. O.C.G.A. § 13-5-31.
We need not address the statute of frauds. The district court did not need to
address it either. The court took Natalie Atkinson “at her word” that she could not
find the written agreement that she testified existed.8 As Baisden acknowledges,
“The fact of a writing – even a missing writing – satisfies any statute of frauds
concerns.”
The real problem for Defendants is not the statute of frauds but the best
evidence rule. The best evidence rule provides, “An original writing . . . is
required in order to prove its content unless these rules or a federal statute provides
otherwise.” Fed. R. Evid. 1002. Under the specific circumstances of this case,
Defendants needed to prove the content of the lease: they needed to show that there
was “a contractual relationship giving exclusive use rights to T&G” at the time of
the accident. At the summary judgment stage—the relevant focus here—
Defendants did not introduce evidence that any exception to the best evidence rule
applies. For instance, Rule 1004 of the Federal Rules of Evidence provides, “An
8 Grange brings up, apparently for the first time on appeal, various federal regulations. Those regulations independently require a written agreement. Baisden disputes whether the regulations apply. But the dispute does not matter: we accept, as the district court did, that a writing existed. Natalie Atkinson testified to that fact, and at the summary judgment stage we accept that testimony as true. Accepting that a written lease existed, however, is not the same as accepting that the lease granted exclusive use rights, which is required under the particular circumstances of this case. 15 Case: 18-13555 Date Filed: 05/01/2020 Page: 16 of 25
original is not required and other evidence of the content of a writing . . . is
admissible if: (a) all the originals are lost or destroyed, and not by the proponent
acting in bad faith; [or] (b) an original cannot be obtained by any available judicial
process.” True, Natalie Atkinson testified that she was “not sure where to find” the
lease agreement. But that testimony does not come close to saying “all the
originals [were] lost or destroyed.” Atkinson’s later testimony that she could not
find the original—and had concluded the physical and electronic versions may
have been destroyed—came as part of the motion to reconsider. In that motion,
Defendants cited to Rule 1004 and argued that Atkinson’s new affidavit excused
them from the requirements of best evidence rule. But as discussed below, the
motion to reconsider was not the place to bring up this testimony, which could
have been addressed at summary judgment. In addition to the absence of the
written lease, there was no evidence of lease payments, testimony regarding the
length of the lease or its terms, or consideration T&G provided for the right to use
the truck.
Baisden believes the district court overstated the lack of evidence. The truck
was on T&G’s policy, and T&G “paid a total premium of $4,965 to Grange to
insure just that dump truck – almost 10% of the total auto premium under that
policy.” Baisden argues that T&G’s making premium payments “was consistent
with a commercial lease.” It is a facially compelling point: why would T&G be
16 Case: 18-13555 Date Filed: 05/01/2020 Page: 17 of 25
paying premiums on a truck it was merely borrowing without any exclusive use
rights?
So, the argument seems to go, a reasonable juror might conclude there was a
lease agreement. But the premise is false, as whether an enforceable contract
exists is a legal, not a factual, determination. See generally Lee v. Green Land Co.,
Inc., 538 S.E.2d 189 (Ga. Ct. App. 2000). Facts are certainly crucial to making the
legal determination—and those facts are missing here. For example, we still do
not know what consideration T&G gave FST for use of its truck. We know T&G
paid insurance premiums. But it is not obvious how T&G insuring the truck
benefits FST, especially since T&G would presumably be insuring the truck for its
own use.9 We might imagine an agreement where, as consideration, FST is able to
borrow the truck at any time while T&G pays the insurance premiums. But we
should not have to—and at this stage cannot—imagine anything. Cf. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (“When the
moving party has carried its burden under Rule 56[], its opponent must do more
than simply show that there is some metaphysical doubt as to the material facts.”
(footnote omitted)).
9 Atkinson further testified that T&G had not done work for more than two years. Because we do not know when this lease began or its terms, we do not know whether T&G originally leased the truck to do work with it. 17 Case: 18-13555 Date Filed: 05/01/2020 Page: 18 of 25
In sum, the dispositive question in the particular circumstances of this case is
whether an enforceable lease granting exclusive use rights existed. At the
summary judgment stage, there was not a genuine issue of material fact that such a
lease existed. Natalie Atkinson testified that the lease had been reduced to writing
but not that all originals had been lost or destroyed. The best evidence of the
content of the lease is the writing itself. And even if an exception to the best
evidence rule applied, there was not enough evidence of the writing’s contents at
the summary judgment stage to conclude an enforceable lease granting exclusive
use rights existed.
III. THE MOTION FOR RECONSIDERATION
As discussed, following the district court’s summary judgment order,
Defendants attempted to supplement Natalie Atkinson’s earlier testimony with a
new affidavit regarding specific terms of the written lease—and the fact that all
physical and electronic copies were now unavailable. The district court declined to
reconsider its order on this basis.
“We review the denial of a motion for reconsideration for abuse of
discretion.” Equity Inv. Partners, LP v. Lenz, 594 F.3d 1338, 1342 (11th Cir.
2010).
The district court did not abuse its discretion in denying Defendants’ motion
for reconsideration. As it correctly explained, a party “cannot use a Rule 59(e)
18 Case: 18-13555 Date Filed: 05/01/2020 Page: 19 of 25
motion to relitigate old matters, raise argument or present evidence that could have
been raised prior to the entry of judgment.” Michael Linet, Inc., 408 F.3d at 763.
Defendants attempted to introduce evidence, including new testimony from
Atkinson, that was available at the summary judgment stage. The district court
properly rejected Defendants’ attempt. 10
Baisden contends that at the summary judgment stage there was sufficient
evidence to create a genuine issue of material fact about the existence of a legally
enforceable lease granting exclusive use rights. She again points to Natalie
Atkinson’s testimony: when asked whether the truck was leased at the time of the
accident, Atkinson responded, “Yeah. It was on the Trucking & Grading policy.”
One can hardly fault the district court for not understanding the supposed
subtext—that T&G paid to insure the truck in exchange for use of the truck.11
10 In a footnote, the district court improperly cited A. Atlanta AutoSave, Inc. v. Generali- U.S. Branch, 498 S.E.2d 278 (Ga. Ct. App. 1998), for the proposition that “Georgia law . . . requires lessees to furnish their own insurance.” That case deals with rental cars, not commercial leases. So the district court was wrong to suggest that T&G promised to do something it was already legally obligated to do. But once again, the suggestion was dictum. The district court went on to say expressly that it would “not reach the question of whether the new evidence demonstrates T&G provided adequate consideration.” 11 Baisden argues that the consideration argument was “specifically pointed out in summary judgment briefing.” She points us to T&G’s and FST’s reply brief in support of their motion for summary judgment, where Natalie Atkinson’s testimony about the truck being on T&G’s policy is cited for the proposition that it was “unequivocal that on October 12, 2015, the subject truck being operated by defendant Mark Lucas was under lease.” But neither the summary judgment reply brief nor Natalie Atkinson’s testimony mentions consideration. Oddly, Baisden later complains that “up to the point the district court entered its order, the consideration supporting a lease was never an issue.” The existence of a lease granting exclusive use rights was certainly an issue, and consideration is an element of any lease. 19 Case: 18-13555 Date Filed: 05/01/2020 Page: 20 of 25
After all, as discussed, it is not clear how this supposed arrangement benefits FST.
If FST did not plan on using the truck, it could have chosen not to insure or operate
it. What benefit did FST get for leasing the truck? We still do not know. Cf.
O.C.G.A. § 13-3-42(a)–(b) (“To constitute consideration, a performance or a return
promise must be bargained for by the parties to a contract. A performance or
return promise is bargained for if it is sought by the promisor in exchange for his
promise and is given by the promisee in exchange for that promise.”).
The affidavit was also the first time Atkinson stated the written lease
agreement was possibly lost or destroyed. Had she so stated earlier, we might be
facing a different case. But we take the case as it comes to us. The district court
did not abuse its discretion in rejecting arguments based on evidence that could
have been presented in the motion for summary judgment.
IV. THE NUMBER OF ACCIDENTS
FST and T&G focus their briefing on convincing us that the district court
erred in determining, in its summary judgment order, that there was a single
accident.
Moreover, Baisden cannot have it both ways—i.e., she cannot seriously assert that the issue was “specifically pointed out” in the briefing but also that it had never been discussed. Finally, Baisden somewhat overstates Atkinson’s testimony. Right after giving the answer at issue, Atkinson was asked directly: “Is it your understanding that as of that time that it had been leased by Four Seasons Trucking & Grading from Four Seasons Trucking, Incorporated?” She responded, “I believe so.” 20 Case: 18-13555 Date Filed: 05/01/2020 Page: 21 of 25
We review the grant of summary judgment, and the interpretation of an
insurance contract, de novo. See James River Ins. Co., 540 F.3d at 1274.
In Georgia, courts apply, by default, the cause theory to determine the
number of accidents. See State Auto, 690 S.E.2d at 619 (establishing cause theory
as the rule that applies “in the absence of a specific, contrary definition of
‘accident’”). As the Georgia Supreme Court described the theory:
In the context of vehicle accidents involving multiple collisions that do not occur simultaneously (recognizing that it is almost impossible that such collisions can occur without any difference in time and place), courts look to whether, after the cause of the initial collision, the driver regained control of the vehicle before a subsequent collision, so that it can be said there was a second intervening cause and therefore a second accident. ... For the foregoing reasons, we adopt the cause theory for use in liability insurance cases in Georgia. We further hold that it applies to the insurance contract at issue in this case, being consistent with that contract read as a whole and in the absence of a specific, contrary definition of “accident.”
Id. at 617, 619. Grange argues that the “district court properly concluded that the
definition of ‘accident’ in the Grange policies conformed to the ‘cause’ theory as
described in the State Auto decision.”
FST and T&G counter that State Auto does not apply because the case
merely sets a default rule. The default rule, they say, does not apply if the policy
defines “accident.” But FST and T&G misread State Auto. State Auto says the
cause theory applies to a “contract read as a whole and in the absence of a specific,
21 Case: 18-13555 Date Filed: 05/01/2020 Page: 22 of 25
contrary definition of ‘accident.’” Id. at 619 (emphasis added). Here, despite FST
and T&G’s conclusory argument, the cause theory is consistent with the contract
read as a whole. The contract contains neither a “specific” nor a “contrary”
definition of accident. Indeed, the policies define accident as follows: “‘Accident’
includes continuous or repeated exposure to the same conditions resulting in
‘bodily injury’ or ‘property damage’” (emphasis added). The term is not fully
defined—it says what an accident includes, not what an accident is. Leaving the
term open is not uncommon in Georgia. In fact, standard Georgia commercial
general liability policies speak in terms of “occurrences,” which they in turn define
as “accidents”: “‘Occurrence’ means an accident, including continuous or repeated
exposure to substantially the same general harmful conditions.” See
“Occurrence”—“Accident”, Ga. Prop. & Liab. Ins. Law § 4:16 (2018).
Because standard Georgia policies do not define “accident” (except to say,
as here, what it includes), Georgia courts have needed to fill in the gaps. We
return, then, to State Auto. That case involved an insured vehicle striking a
bicyclist and then striking a second bicyclist. 690 S.E.2d at 616. The court
determined the relevant inquiry was whether the driver regained control of the
insured automobile, not whether some other conditions affected the bicyclists.12
12 FST and T&G argue that the two vehicles were not exposed to the “same conditions.” They say that because one collision occurred after the other, both vehicles were exposed to 22 Case: 18-13555 Date Filed: 05/01/2020 Page: 23 of 25
See id. at 617. If the driver did not regain control, there was “one proximate,
uninterrupted, and continuing cause which resulted in all of the injuries and
damage.” See id.
Here, no evidence suggests, and FST and T&G do not argue, that Lucas
regained control of the truck as he crossed the center line and collided with the two
vehicles. The police report diagram of the accident shows that the truck did not
correct its path before striking the second vehicle. The report notes that the truck
“swerved into the southbound lanes and side-swiped Vehicle 2, causing Vehicle 2
to spin off the roadway.” The truck “then struck Vehicle 3 head-on in the
southbound lane pushing both vehicles off the roadway into a ditch . . . .” Even
viewed in the light most favorable to Defendants, the evidence indicates that the
truck moved into the southbound lane and, as an uninterrupted consequence of that
move, hit both vehicles.
FST and T&G suggest that any time the insured vehicle separately collides
with two other vehicles, even if only a single second has passed, there have been
two accidents. FST and T&G said as much at oral argument before this Court.
This approach is misguided. The policies contain a limit of insurance clause,
which applies “[r]egardless of the number of . . . vehicles involved in the
different conditions. But that argument is backwards. The truck is what is insured, not the other vehicles. 23 Case: 18-13555 Date Filed: 05/01/2020 Page: 24 of 25
‘accident’.” The policies thus plainly contemplate that multiple vehicles can be
involved in a single accident. FST and T&G’s reading would eliminate this
language from the contract, contrary to Georgia law. See O.C.G.A. § 13-2-2(4)
(“The construction which will uphold a contract in whole and in every part is to be
preferred, and the whole contract should be looked to in arriving at the
construction of any part.”); see also State Auto, 690 S.E.2d at 617 (“Under the
claimant’s construction, the policy’s $100,000 limitation of liability ‘regardless of
the number of . . . vehicles involved’ would be meaningless in almost any collision
involving multiple vehicles, as State Auto would have to pay $100,000 for each
impact. That is plainly not the intent of the contract.”).13
Finally, the district court focused on several conditions to which the truck
was exposed. In particular, it pointed out that “[b]oth collisions occurred under the
same lighting conditions, the same weather conditions, the same road conditions,
13 FST and T&G contend that the policies do not require any collisions for liability to attach. In support, they point to the limit of insurance clause, which discusses pollution-related costs: “Regardless of the number of covered ‘autos’, ‘insureds’, premiums paid, claims made or vehicles involved in the ‘accident’, the most we will pay for the total of all damages and ‘covered pollution cost or expense’ combined, resulting from any one ‘accident’ is the Limit of Insurance of Liability Coverage shown in the Declarations.” According to FST and T&G, because the policy will pay for certain covered pollution costs, “the Limit of Insurance clause contemplates a claim involving numerous vehicles but not a single collision.” The confusing conclusion seems to be that their reading will not eliminate the “[r]egardless of the number of . . . vehicles involved in the ‘accident’” language because of the possibility of a pollution- based “accident.” It is true that the clause would apply if there was a collision-less “accident”— e.g., a contaminant spill from a truck. But FST and T&G’s reading would mean the limit of insurance clause applies only if there is a pollution-based claim. That reading flies in the face of the fact that Grange must “pay for the total of all damages and ‘covered pollution cost[s] or expense[s]’” (emphases added). 24 Case: 18-13555 Date Filed: 05/01/2020 Page: 25 of 25
the same traffic conditions, etc.” FST and T&G argue that these conditions are
not, or at least there is not enough evidence that they were, what “result[ed] in
‘bodily injury’.” They read the policy this way: “‘Accident’ includes continuous
or repeated exposure to the same conditions resulting in ‘bodily injury’ or
‘property damage’” (emphasis added). Thus, they suggest, the “conditions” must
be what causes bodily injury. We wonder how the conditions of this particular
accident could ever be what causes bodily injury. But we need not resolve the
dispute. We have already concluded that the definition of accident is not
comprehensive. State Auto fills in the policies’ interstices and dictates our
conclusion: under these policies and under Georgia law, the multi-auto collision at
issue in this case was a single accident.
V. CONCLUSION
The judgment of the district court is AFFIRMED.