Opinion
Civil Action No. 2:20-CV-00054-RWS
2021-04-06
Kelly BRITNELL, et al., Plaintiff, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant.
David Austin Bersinger, Barnes & Thornburg LLP, Atlanta, GA, for Plaintiff. Thomas W. Curvin, Kamryn Marie Deegan, Eversheds Sutherland (US) LLP, Atlanta, GA, for Defendant.
David Austin Bersinger, Barnes & Thornburg LLP, Atlanta, GA, for Plaintiff.
Thomas W. Curvin, Kamryn Marie Deegan, Eversheds Sutherland (US) LLP, Atlanta, GA, for Defendant.
ORDER
RICHARD W. STORY, United States District Judge
This case comes before the Court on Plaintiff Kelly Britnell's ("Plaintiff" or "Mrs. Britnell") Motion for Partial Summary Judgment [30] and Defendant State Farm Fire and Casualty Company's ("Defendant" or "State Farm Fire") Motion for Summary Judgment [35]. After reviewing the record, the Court enters the following Order.
Background
I. Factual Background
This insurance coverage dispute is about whether State Farm Fire was obligated to provide insurance coverage to its insured for an accident pursuant to a policy that it issued and whether it breached its obligations by refusing to do so. While the facts of the underlying accident are undisputed, the parties disagree as to how the insurance policy in question should be interpreted and applied and whether the insured complied with the policy's timely notice provision.
A. The Insured and His Insurance Policies
Dr. Keith Prasse is a self-employed cattle farmer in Georgia whose farming business consists of raising purebred Beefmaster cattle. As part of his cattle farming business, he regularly attends purebred cattle sales hosted by the Southeastern Beefmaster Breeders Association ("SEBBA") and other associations, where he shows his cattle, networks with other cattle farmers, and keeps up to date on the purebred cattle industry. He owns a 20-foot motor-less trailer, which he mounts to the back of his pickup truck and uses to transport his cattle to sales and events. In accordance with Georgia law, Dr. Prasse obtained and maintains a motor vehicle registration and license plate for his trailer.
At the time of the relevant events in this case, and in part because of the nature of and the risks associated with operating his farming business, Dr. Prasse maintained two insurance policies with two different State Farm entities: (1) an automobile policy ("auto policy") with State Farm Mutual Automobile Insurance Company ("State Farm Mutual"); and (2) a Farm/Ranch Liability Policy ("Farm/Ranch Policy") with Defendant State Farm Fire. The auto policy had a $100,000 liability limit, while the Farm/Ranch Policy had a $1,000,000 liability limit.
The Farm/Ranch Policy with State Farm Fire is the insurance policy at issue in this case. It provides that, "[i]f a claim is made or a suit is brought against [Dr. Prasse] for damages because of bodily injury or property damage to which this coverage applies, caused by an occurrence," State Farm Fire will "pay up to [its] limit of liability for the damages for which [Dr. Prasse] is legally liable." The Farm/Ranch Policy contains a Motor Vehicle Exclusion, which provides:
Section II – Exclusions
1. Coverage L – Farm Liability and Coverage M – Medical Payments to Others do not apply to:
e. bodily injury or property damage arising out of the ownership, maintenance, use, loading or un-loading of:
(2) a motor vehicle owned or operated by or rented or loaned to any insured; or...
The Farm/Ranch Policy defines "motor vehicle" to include a "land motor vehicle designed for travel on public roads or subject to motor vehicle registration" as well as a "trailer or semi-trailer designed for travel on public roads and subject to motor vehicle registration."
And the Motor Vehicle Exclusion itself contains an exception ("the Farm/Ranch Endorsement"), which states:
Section II – Exclusions
The following is added to exclusion 1.e:
Exclusion e.(2) does not apply to bodily injury or property damage arising out of the operation of farm equipment that is mounted on a motor vehicle
and that is not used for locomotion of that motor vehicle.
The Farm/Ranch Policy also includes a notice provision, which mandates:
Section II-Conditions
3. Duties After Loss. In case of an accident or occurrence, the insured shall perform the following duties that apply. You shall cooperate with us in seeing that these duties are performed.
a. give written notice to us or our agent as soon as practicable ... [and]
b. immediately forward to us every notice, demand, summons, or other process relating to the accident or occurrence ....
And, finally, the Farm/Ranch Policy provides that "[n]o action shall be brought against [State Farm Fire] unless there has been compliance with the policy provisions."
B. The Accident
In February 2012, SEBBA hosted a purebred cattle sale and convention at the Tunica County Expo Center in Tunica, Mississippi. The event included a competitive showing of bulls by their breeders. On February 25, 2012, Dr. Prasse attended the event and brought his herd bull to be considered in the competitive showing. He transported his herd bull from his home and farm in Georgia to the event by mounting his trailer to the back of his truck, loading the bull in the trailer, and pulling the trailer and bull behind his truck.
After the showing, when it was time to retrieve his herd bull, Dr. Prasse mounted his trailer back onto his truck and drove into a loading and unloading area in a breezeway. He waited in a line of vehicles to pick up and load his bull back into the trailer attached to his truck. The line eventually moved, and Dr. Prasse moved his truck forward. As he did so, his trailer struck Mrs. Britnell, an Alabama resident who also attended the SEBBA event and who was walking through the breezeway between Dr. Prasse's trailer and a cement wall. The collision caused Mrs. Britnell to suffer severe injuries.
Dr. Prasse says that, within an hour of his accident with Mrs. Britnell, he contacted the State Farm office in Athens, Georgia where his State Farm agent, Rhett Butler, worked and notified them about the accident. He recalls speaking with someone at the office that day about his accident, who told him that, since his trailer was mounted on his truck at the time of the accident, coverage for the accident had to come from his auto policy and not his Farm/Ranch Policy. Dr. Prasse was surprised by the guidance that the Farm/Ranch Policy would not cover his accident. In any event, two days after the accident, Dr. Prasse's State Farm agent submitted a claim to State Farm Mutual for the accident. State Farm Fire disputes Dr. Prasse's characterization of his communications with State Farm and its agents, stating that they do not have records showing that Dr. Prasse immediately contacted them after the accident.
C. The Underlying Litigation Between Mrs. Britnell and Dr. Prasse
On April 17, 2013, counsel for Mrs. Britnell sent a letter to Dr. Prasse regarding her potential claim against him arising from the accident. Dr. Prasse says that he immediately forwarded this letter to his State Farm office in Athens, Georgia. State Farm Mutual received the letter and retained an attorney in Georgia to represent Dr. Prasse. In addition, in response to his inquiries, Dr. Prasse states that State Farm officials or representatives told him to ensure that his State Farm agent filed a claim for the accident with his Farm/Ranch Policy so that State Farm Fire could formally investigate coverage. Accordingly, in May 2013, Dr. Prasse submitted a claim to State Farm Fire.
On June 24, 2013, State Farm Fire sent a letter to Dr. Prasse, denying coverage for his claim under his Farm/Ranch Policy. State Farm Fire explained that coverage for Dr. Prasse's accident with Mrs. Britnell was excluded under the Farm/Ranch Policy's Motor Vehicle Exclusion and that the Farm/Ranch Endorsement did not restore coverage. State Farm Fire also instructed Dr. Prasse to notify it if he were later sued because of the accident.
The following year, on October 8, 2014, Mrs. Britnell filed a personal injury lawsuit against Dr. Prasse in the Circuit Court of Tunica County, Mississippi. She then filed an amended complaint on November 13, 2014. After receiving notice by mail of the lawsuit that Mrs. Britnell filed against him, Dr. Prasse says that he again contacted his State Farm agent in the Athens, Georgia State Farm office. State Farm Mutual then retained defense counsel in Mississippi to represent Dr. Prasse in the case. Over the course of the litigation, the parties engaged in settlement negotiations, and in or around early March 2018, Mrs. Britnell made Dr. Prasse a settlement offer in the amount of $300,000.
On or about March 9, 2018, counsel for Dr. Prasse sent a letter to State Farm Fire, explaining the settlement offer that Dr. Prasse had received and seeking an explanation of State Farm Fire's earlier denial of coverage for the accident. Counsel for Dr. Prasse also emailed a copy of the letter to statefarmclaims@statefarm.com. On March 23, 2018, State Farm Fire reaffirmed its denial of coverage under Dr. Prasse's Farm/Ranch Policy, again asserting that the Motor Vehicle Exclusion barred coverage for the accident and that the Farm/Ranch Endorsement did not reinstate coverage. On May 21, 2018, counsel for Dr. Prasse asked State Farm Fire to reevaluate its position and contribute to the proposed settlement with Mrs. Britnell. On July 18, 2018, State Farm Fire once again reaffirmed its coverage denial, this time also contending that Dr. Prasse did not provide timely notice of Mrs. Britnell's lawsuit to it.
In July 2019, the trial court judge overseeing Mrs. Britnell's lawsuit against Dr. Prasse entered an Order on Proposed Findings of Facts and Conclusions of Law. The Order found that Dr. Prasse's negligence was the sole proximate cause of Mrs. Britnell's injuries and entered a judgment against him in the amount of $1,346,295.91. Around the same time, Dr. Prasse and Mrs. Britnell entered into an Assignment Agreement and Covenant Not to Execute, through which Dr. Prasse assigned his claims against State Farm Fire to Mrs. Britnell and Mrs. Britnell agreed not to pursue the judgment against Dr. Prasse.
On August 21, 2019, counsel for Mrs. Britnell sent a post-judgment demand letter to State Farm Fire, offering to settle her claim against State Farm Fire for less than the Farm/Ranch Policy's $1,000,000 liability limit. On October 14, 2019, State Farm Fire again denied coverage.
II. Procedural History
Mrs. Britnell filed this lawsuit [1] against State Farm Fire on February 27, 2020, alleging claims for the judgment creditors’ direct action against the judgment debtor's insurance company (Count 1), breach of contract (Count 2), negligent or bad faith failure to settle under the common law (Count 3), punitive damages pursuant to O.C.G.A. § 51-12-5.1 (Count 4), and attorneys’ fees and litigation expenses pursuant to O.C.G.A. § 13-6-11 (Count V). State Farm Fire filed its answer [7] on March 23, 2020, asserting that Mrs. Britnell's claims were barred by the Motor Vehicle Exclusion of the Farm/Ranch Policy and that Dr. Prasse breached the Farm/Ranch Policy's timely notice provision, among other defenses. Both parties moved for summary judgment [30, 35]. Specifically, Mrs. Britnell moved for partial summary judgment on the issue of coverage [30], and State Farm Fire moved for summary judgment on each of Mrs. Britnell's claims against it [35]. Both parties opposed the other party's motion [36, 42].
Discussion
I. Legal Standard
Federal Rule of Civil Procedure 56 requires that summary judgment be granted "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." "The moving party bears ‘the initial responsibility of informing the ... court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.’ " Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). Where the moving party makes such a showing, the burden shifts to the non-movant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The applicable substantive law identifies which facts are material. Id. at 248, 106 S.Ct. 2505. A fact is not material if a dispute over that fact will not affect the outcome of the case under the governing law. Id. An issue is genuine when the evidence is such that a reasonable jury could return a verdict in favor of the non-moving party. Id. at 249–50, 106 S.Ct. 2505.
In resolving a motion for summary judgment, the court will "consider the record and draw all reasonable inferences in the light most favorable to the non-moving party." Blue v. Lopez, 901 F.3d 1352, 1357 (11th Cir. 2018). But the court is bound only to draw those inferences which are reasonable. "Where the records taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505 (citations omitted); see also Matsushita, 475 U.S. at 586, 106 S.Ct. 1348 (once the moving party has met its burden under Rule 56(a), the non-moving party "must do more than simply show there is some metaphysical doubt as to the material facts").
Finally, the filing of cross-motions for summary judgment does not give rise to any presumption that no genuine issues of material fact exist. Rather, "[c]ross-motions must be considered separately, as each movant bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law." Shaw Constructors v. ICF Kaiser Eng'rs, Inc., 395 F.3d 533, 538–39 (5th Cir. 2004).
II. Both Parties’ Motions for Summary Judgment on Coverage Issue [30, 35]
Both parties move for summary judgment on the first claim of Mrs. Britnell's complaint – the judgment creditors’ direct action against the judgment debtors’ insurance company. This claim seeks a determination that Dr. Prasse is entitled to coverage under the Farm/Ranch Policy for his liability to Mrs. Britnell arising out of the accident, and that State Farm Fire is required to pay Mrs. Britnell pursuant to the terms of the Farm/Ranch Policy in partial satisfaction of the judgment she obtained against him. (Compl., Dkt. [1], at ¶¶ 48–54.)
Mrs. Britnell argues that she is entitled to summary judgment on the coverage issue because Dr. Prasse's accident with Mrs. Britnell triggered coverage under the Farm/Ranch Policy, Dr. Prasse complied with all conditions precedent for coverage, and the Motor Vehicle Exclusion does not apply since the Farm/Ranch Endorsement explicitly restores coverage for the accident. (Pl.’s Mot. for Partial Summ. J., Dkt. [30], at 2–3; Pl.’s Br. in Supp., Dkt. [30-1], at 10–24.) On the other hand, State Farm Fire argues that it is entitled to summary judgment on the coverage issue for two independent reasons: (1) Dr. Prasse breached the Farm/Ranch Policy's timely notice condition, which is a condition precedent to coverage; and (2) the Motor Vehicle Exclusion applies to bar coverage for the accident. (Def.’s Mot. for Summ. J., Dkt. [35], at 3–4; Def.’s Mem. of Law in Supp., Dkt. [35-1], at 2–3, 8–23.) In response to State Farm Fire's arguments, Mrs. Britnell also argues that State Farm Fire waived its timely notice defense by not raising it in its March 23, 2018 denial of coverage letter. (Pl.’s Reply Br. in Supp., Dkt. [40], at 5–8; Pl.’s Resp. in Opp., Dkt. [42], at 8.)
The Court finds that State Farm Fire did not waive its timely notice defense by not raising it in its March 23, 2018 denial of coverage letter, but that there is a genuine dispute of material fact as to whether Dr. Prasse complied with the Farm/Ranch Policy's timely notice provision. In addition, the Court finds that the Farm/Ranch Endorsement applies to restore coverage for the accident that would otherwise be excluded by the Motor Vehicle Exclusion, and therefore that Mrs. Britnell is entitled to summary judgment on this component of the coverage issue. The Court will address each of these issues in turn.
A. State Farm Fire's Waiver of Timely Notice Defense
Mrs. Britnell argues that State Farm Fire waived its right to assert a timely notice defense by not raising it in its March 23, 2018 denial of coverage letter. (Pl.’s Reply Br. in Supp., Dkt. [40], at 5–8; Pl.’s Resp. in Opp., Dkt. [42], at 8.) State Farm Fire rejects this argument, contending that: there was no lawsuit pending against Dr. Prasse when State Farm Fire sent its initial denial of coverage letter on June 24, 2013; it never attempted to simultaneously deny coverage and reserve future defenses in its denial of coverage letters; and the Court should consider its conduct in its entirety given that it raised the timely notice defense shortly after its March 23, 2018 denial of coverage letter and repeatedly throughout this litigation. (Def.’s Mem. of Law in Supp., Dkt. [35-1], at 14–18; Def.’s Reply in Supp., Dkt. [45], at 2–7.)
Since the Supreme Court of Georgia's 2012 opinion in Hoover v. Maxum Indemnity Company, 291 Ga. 402, 730 S.E.2d 413 (2012), courts have reached different conclusions regarding whether an insurer waives a defense by not raising it in its denial of coverage letter. See Century Cmtys. of Ga., LLC v. Selective Way Ins. Co., 2019 WL 7491504, at *3–5 (N.D. Ga. Oct. 25, 2019) (summarizing Georgia courts’ varied interpretations of Hoover ). As the Century Communities Court exhaustively details, some courts have held that "an insurer must assert all coverage defenses in its denial letter or those defenses are waived," others have applied such a holding to policy defenses but not coverage defenses, and still others have held that "the failure to include a defense in a denial letter does not render it automatically waived, but rather leaves the question of whether to consider the defense open for future litigation." Id. at *3–4 (citations and quotations omitted).
See, e.g., Phila. Indem. Ins. Co. v. First Multiple Listing Servs., Inc., 173 F. Supp. 3d 1314, 1321 (N.D. Ga. 2016) (finding insurer estopped from relying on a coverage defense "because it failed to raise the defense in its initial ... letter denying coverage"); Moon v. Cincinnati Ins. Co., 920 F. Supp. 2d 1301, 1306 (N.D. Ga. 2013) (granting summary judgment for plaintiff where "the grounds upon which [defendant] can ultimately deny coverage are limited to the grounds listed in its letter denying coverage"); Payne v. State Farm Fire & Cas. Co., 2012 WL 13006060, at *14 (N.D. Ga. Aug. 28, 2012) (finding that Hoover "preclude[s] an insurer from defending itself against such a [bad faith] suit by raising defenses to coverage that it did not assert in its denial letter").
See Langdale Co. v. Nat. Union Fire Ins. Co. of Pittsburgh, Pa., 110 F. Supp. 3d 1285, 1298 (N.D. Ga. 2014) (citing the "longstanding general rule in Georgia law that neither waiver nor estoppel can be used to create liability not created by an insurance contract and not assumed by the insurer under the terms of the policy") (citation, punctuation, and quotations omitted).
See Greater Cmty. Bancshares, Inc. v. Fed. Ins. Co., 2015 WL 10714012, at *8 (N.D. Ga. Feb. 9, 2015) (holding that "the insurer has the right to raise policy defenses to coverage after it has made an unjustified refusal to defend" and therefore that the insurer did not waive, "and is not estopped from raising" its argument "exclud[ing] the underlying litigation from coverage") (citation and quotations omitted).
The Century Communities Court adopted the third approach, and, absent further guidance from Georgia's appellate courts interpreting this aspect of Georgia law, this Court agrees. Accordingly, the fact that an insurer does not assert a defense in a denial of coverage letter does not mean that that defense is automatically waived. Rather, in such a situation, courts should examine the parties’ correspondence and filings, as well as any other relevant circumstances in the case, to determine whether the insured had fair notice of the insurer's intention to raise the new defense. See Hoover, 730 S.E.2d at 418 (holding that, because over two years had passed without the insurer mentioning its untimely notice defense, "[the insurer's] continued failure to fairly inform [the insured] of its intention to raise a defense related to untimely notice means [the insurer] waived the defense"); but cf. Century Cmtys., 2019 WL 7491504, at *6 (concluding that, even though the insurer initially denied coverage without asserting a particular defense, the insurer identified that defense in the answer it filed several months later, such that the insured "had sufficient notice of [the insurer's] intention to assert the [defense]" and the insurer therefore "did not waive the defense"). And, if the facts and circumstances show that the insured had fair notice of the insurer's intention to raise a new defense, even if that defense was not initially raised in the insurer's denial of coverage letter, the Court may find that the insurer did not waive that defense.
Here, in communications between Dr. Prasse and State Farm Fire over the course of this dispute, State Farm Fire denied coverage for Dr. Prasse's accident three separate times: on June 24, 2013, before Mrs. Britnell's lawsuit against Dr. Prasse was filed; on March 23, 2018; and on July 18, 2018. State Farm Fire's July 18, 2018 denial of coverage letter raised its timely notice defense for the first time. Therefore, it is undisputed that State Farm Fire did not raise its timely notice defense in either of its first two communications with Dr. Prasse, one of which took place while Mrs. Britnell's lawsuit against Dr. Prasse was pending.
However, that is not the end of the analysis. Mrs. Britnell did not file this action against State Farm Fire until February 27, 2020, which was approximately 19 months after State Farm Fire first raised its timely notice defense. Moreover, in State Farm Fire's answer to Mrs. Britnell's complaint, it identified—among other reasons—the timely notice provision as its reason for denying coverage. (Def.’s Answer, Dkt. [7], at 2.) And, further, State Farm Fire partially relied on the timely notice provision, and Dr. Prasse's alleged breach of it, in its motion for summary judgment to argue that it owed no coverage for Dr. Prasse's accident with Mrs. Britnell. Reviewing the parties’ communications and filings in full, Mrs. Britnell had more than sufficient notice of State Farm Fire's intention to assert Dr. Prasse's lack of timely notice as a defense in this lawsuit. Accordingly, the Court finds that State Farm Fire did not waive this defense.
B. Compliance with Timely Notice Provision
State Farm Fire argues that Dr. Prasse breached the Farm/Ranch Policy's timely notice provision by failing to notify it of Mrs. Britnell's lawsuit against him until March 2018, nearly three-and-a-half years after the lawsuit was filed. (Def.’s Mot. for Summ. J., Dkt. [35], at 3–4; Def.’s Mem. of Law in Supp., Dkt. [35-1], at 2, 5–6, 8–13; Def.’s Reply in Supp., Dkt. [45], at 7–14.) In support of its position, State Farm Fire points to Georgia cases which have held that four-month to one-year delays in providing notice to an insurer are unreasonable and preclude recovery under an insurance policy as a matter of law. (Id. ) Mrs. Britnell disputes State Farm Fire's version of the facts, contending that Dr. Prasse promptly notified his State Farm agent, Mr. Butler, of the accident and both Mrs. Britnell's intent to file a lawsuit and the lawsuit itself, which she argues is sufficient under the terms of the Farm/Ranch Policy. (Pl.’s Mot. for Partial Summ. J., Dkt. [30], at 2; Pl.’s Br. in Supp., Dkt. [30-1], at 6, 11; Pl.’s Reply Br. in Supp., Dkt. [40], at 8–15.)
Generally, in Georgia, "a notice provision in an insurance contract that is expressly made a condition precedent to coverage is valid and must be complied with, absent a showing of justification." 105 R.R. St., LLC v. Great Lakes Reinsurance (UK) SE, 2016 WL 9454412, at *2 (N.D. Ga. Dec. 21, 2016 ) (citation and quotations omitted). If an insured party "has not demonstrated justification for failure to give notice per the terms of the policy, then the insurer is not obligated to provide either a defense or coverage." Id. (citation and quotations omitted). Thus, the Court must determine two questions at this stage: (1) whether the timely notice provision here was a condition precedent to coverage, and if so, (2) whether Dr. Prasse failed to comply with that timely notice provision.
1. Whether Timely Notice Provision was Condition Precedent
"In determining whether an insurance provision is a condition precedent to coverage, courts look to principles of contract law." Id. at *3 (citation omitted). "Where a provision of the policy is clear and unambiguous, the court simply enforces the terms as written," but "where the language is ambiguous, a court construes the ambiguities against the insurer." Id. (citation omitted).
The relevant provision of the Farm/Ranch Policy requires notice to be provided "as soon as practicable" after an accident or occurrence:
Section II-Conditions
3. Duties After Loss. In case of an accident or occurrence, the insured shall perform the following duties that apply. You shall cooperate with us in seeing that these duties are performed.
a. give written notice to us or our agent as soon as practicable ... [and]
b. immediately forward to us every notice, demand, summons, or other process relating to the accident or occurrence ....
(Farm/Ranch Policy, Dkt. [1-2], at 42.) Further, the policy provides that "[n]o action shall be brought against [the insured] unless there has been compliance with the policy provisions." (Id. )
Georgia courts have routinely found that such language in an insurance policy creates a valid condition precedent. See, e.g., Lucas v. State Farm Fire & Cas. Co., 864 F. Supp. 2d 1346, 1353 (M.D. Ga. 2012) (policy stating that "no action shall be brought unless there has been compliance with the policy provisions" constituted a condition precedent to bringing suit that was binding against the insured) (citation, punctuation, and quotations omitted); Farmer v. Allstate Ins. Co., 396 F. Supp. 2d 1379, 1382 (N.D. Ga. 2005) (holding language that required "full compliance with all policy terms" created a condition precedent under Georgia law). Accordingly, the Court finds that Dr. Prasse was required to provide timely notice of Mrs. Britnell's lawsuit to State Farm Fire as a condition precedent to coverage under the Farm/Ranch Policy.
2. Whether Dr. Prasse Provided Timely Notice
Since timely notice of Mrs. Britnell's lawsuit is a condition precedent to coverage under the Farm/Ranch Policy, the Court now examines whether Dr. Prasse complied with that provision. In Georgia, "whether an insured gave an insurer timely notice of an event or occurrence under a policy generally is a question for the factfinder." 105 R.R. St., LLC, 2016 WL 9454412, at *3 (citation and quotations omitted). Indeed, "[t]he time limitations in policies of insurance requiring a report of incident ‘as soon as practicable,’ " as is the case here, "are subject to a factual determination." BLB Constr., Inc. v. Auto-Owners Ins. Co., 418 F. Supp. 3d 1325, 1334 (S.D. Ga. 2019) (citation and quotations omitted). "An insured may be able to present justification for delay in giving notice, and whether that justification was sufficient is generally a fact-based inquiry for a jury." 105 R.R. St., LLC, 2016 WL 9454412, at *3 (citation omitted). That said, certain facts and circumstances surrounding an insured's delay in giving notice of an accident or occurrence or the filing of a lawsuit to his or her insurer may render that delay "unjustified and unreasonable as a matter of law." Id. (citation and quotations omitted).
As has been noted already, the parties present competing versions of the facts underlying Dr. Prasse's provision of notice to State Farm Fire. Mrs. Britnell argues that Dr. Prasse gave timely notice of the accident, Mrs. Britnell's intent to file a lawsuit against him, and the lawsuit itself to State Farm Fire. (Pl.’s Mot. for Partial Summ. J., Dkt. [30], at 2; Pl.’s Br. in Supp., Dkt. [30-1], at 6, 11; Pl.’s Reply Br. in Supp., Dkt. [40], at 8–15.) Specifically, Mrs. Britnell points to Dr. Prasse's testimony that, after the accident and after learning that he would be and then had been sued, he either immediately called his State Farm agent or forwarded the relevant documentation to that agent in the State Farm office in Athens, Georgia, who proceeded to hire an attorney for him and submit insurance claims on his behalf. (Id. ) State Farm Fire, for its part, ignores these earlier referenced communications between Dr. Prasse and his State Farm agent, attempting to distinguish Dr. Prasse's communications with State Farm Mutual from his communications with State Farm Fire. And, instead, State Farm Fire focuses solely on Dr. Prasse's March 9, 2018 letter to it, in which he explained Mrs. Britnell's settlement offer and asked for an explanation of State Farm Fire's earlier denial of coverage for the accident. (Def.’s Mot. for Summ. J., Dkt. [35], at 3–4; Def.’s Mem. of Law in Supp., Dkt. [35-1], at 2, 5–6, 8–13; Def.’s Reply in Supp., Dkt. [45], at 7–14.) State Farm Fire contends that this was the first time Dr. Prasse notified it of Mrs. Britnell's lawsuit against him – almost three-and-a-half years after its filing. (Id. )
The Court finds that there is a genuine dispute of material fact as to whether Dr. Prasse notified State Farm Fire about Mrs. Britnell's lawsuit as soon as was practicable. Dr. Prasse has stated that he called his State Farm insurance agent after receiving notice of Mrs. Britnell's impending lawsuit and after being served with the complaint itself. The content of those conversations is somewhat unclear. However, a reasonable jury could find that Dr. Prasse told his State Farm insurance agent about Mrs. Britnell's lawsuit against him as early as the day he received a copy of the lawsuit in the mail (or shortly thereafter). And a jury could further find that this notification and contact with Dr. Prasse's State Farm agent in his local State Farm office was sufficient to satisfy the Farm/Ranch Policy's as-soon-as-practicable notice requirement. Thus, for these reasons, the Court cannot find as a matter of law that Dr. Prasse's provision of notice to State Farm Fire was untimely.
Accordingly, to the extent that Mrs. Britnell and State Farm Fire's respective motions for summary judgment seek a ruling about the timeliness of Dr. Prasse's notice to State Farm Fire of Mrs. Britnell's lawsuit against him, those motions are DENIED .
C. Interpretation and Application of the Farm/Ranch Endorsement
Finally, the parties agree that Dr. Prasse is an insured under the Farm/Ranch Policy and that Mrs. Britnell suffered bodily injuries caused by an applicable occurrence or accident. (Pl.’s Mot. for Partial Summ. J., Dkt. [30], at 2; Pl.’s Br. in Supp., Dkt. [30-1], at 11; Def.’s Mem. of Law in Supp., Dkt. [35-1], at 19.) In addition, there is no dispute that the Motor Vehicle Exclusion itself applies to the accident, because Mrs. Britnell's bodily injuries "ar[ose] out of the ownership, maintenance, use, loading or un-loading of ... a motor vehicle owned or operated by ... [by Dr. Prasse]." (Pl.’s Br. in Supp., Dkt. [30-1], at 11–12; Def.’s Mem. of Law in Supp., Dkt. [35-1], at 19–21.) Accordingly, the coverage dispute centers on whether the Farm/Ranch Endorsement applies to restore coverage for the accident that would otherwise be excluded under the Motor Vehicle Exclusion.
In Georgia, insurance policies are a matter of contract, and "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." Goldeagle Ventures, LLC v. Covington Specialty Ins. Co., 349 Ga.App. 446, 825 S.E.2d 881, 884 (2019) (citation and quotations omitted). "The central rule of contract interpretation is to find the parties’ intent." ACE Am. Ins. Co. v. Hernandez-Ortiz, 428 F. Supp. 3d 1355, 1359 (N.D. Ga. 2019) (citing Ga. Code Ann. § 13-2-3 ). To do so, "the Court starts with the contract's plain meaning." Id. (citation omitted). "The policy should be read as a layman would read it." Burgess v. Allstate Ins. Co., 334 F. Supp. 2d 1351, 1359 (N.D. Ga. 2003) (citation omitted). If the contract is unambiguous, then the Court applies that meaning, but if it is ambiguous such that its provisions are susceptible to multiple meanings, "the Court uses the rules of contract construction to resolve the ambiguity." ACE Am. Ins. Co., 428 F. Supp. 3d at 1359 (citations omitted).
"There are three well-known rules of contract construction in insurance cases: first, any 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 where possible." Id. at 1359–60 (citing Lee v. Universal Underwriters Ins. Co., 642 Fed. App'x 969, 972–73 (11th Cir. 2016) ) (punctuation and quotations omitted). "Where the insurer seeks to invoke an exclusion contained in its policy, it has the burden of proving the facts come within the exclusion." Auto-Owners Ins. Co. v. Smith, 340 Ga.App. 574, 798 S.E.2d 93, 97 (2017) (citation and quotations omitted). In addition, "[t]he Eleventh Circuit has found that after 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." ACE Am. Ins. Co., 428 F. Supp. 3d at 1360 (citing Lee, 642 Fed. App'x at 973 ) (punctuation and quotations omitted).
Under the Farm/Ranch Endorsement, the Motor Vehicle Exclusion "does not apply to bodily injury or property damage arising out of the operation of farm equipment that is mounted on a motor vehicle and that is not used for locomotion of that motor vehicle." (Farm/Ranch Policy, Dkt. [1-2], at 8.) The key terms or phrases at issue in this provision – "operation of" and "farm equipment" – are not defined by the Farm/Ranch Policy and are therefore ambiguous. See, e.g., Gov't Emps. Ins. Co. v. Gordon, 725 Fed. App'x 919, 921 (11th Cir. 2018) ("Left undefined, the term [ ] is ambiguous.") (citation and quotations omitted); Mega Life & Health Ins. Co. v. Pieniozek, 585 F.3d 1399, 1406 (11th Cir. 2009) (holding that because the term at issue was not defined by the insurance application, it was "susceptible to two or more constructions" and was therefore ambiguous as a matter of law) (citation omitted). And because the disputed and determinative terms or phrases are ambiguous, the Court must apply the rules of contract construction to resolve these ambiguities. ACE Am. Ins. Co., 428 F. Supp. 3d at 1359.
1. Interpretation of "Operation of"
Mrs. Britnell notes that, because the Farm/Ranch Policy fails to define the phrase "operation of," the Court must assign it its common meaning. (Pl.’s Br. in Supp., Dkt. [30-1], at 17–18.) Applying the term's common definition, Mrs. Britnell argues that Dr. Prasse was clearly "exerting influence over the trailer" by pulling it behind his truck when she was injured. (Id. ) State Farm Fire does not apparently dispute Mrs. Britnell's interpretation of this phrase, or provide its own, choosing instead to focus its analysis on the other disputed term—farm equipment.
"Unless otherwise defined in the contract, terms in an insurance policy are given their ordinary and customary meaning." Partin v. Ga. Farm Bureau Mut. Ins. Co., 331 Ga.App. 897, 770 S.E.2d 38, 42 (2015) (citation and quotations omitted). According to Merriam-Webster's online dictionary, "operation" means the "performance of practical work or of something involving the practical application of principles or processes" or "an exertion of power or influence." Here, by mounting his trailer to the back of his truck, loading a bull into the trailer, and pulling the trailer behind his truck to attend a cattle show central to his farming business, Dr. Prasse was quite clearly "exert[ing] [ ] power or influence" over the trailer. Indeed, the Court is hard-pressed to think of how else Dr. Prasse could have been "operating" the trailer. Moreover, application of the rules of contract construction simply reinforces the fact that this phrase should be construed against State Farm Fire and in favor of Dr. Prasse (and Mrs. Britnell, as his assignee).
Accordingly, the Court finds that Dr. Prasse was "operating" his trailer at the time of the accident, such that the Farm/Ranch Endorsement applies to restore coverage for the accident if indeed his trailer constitutes "farm equipment."
2. Interpretation of "Farm Equipment"
Similarly, because the Farm/Ranch Policy does not define the phrase "farm equipment," Mrs. Britnell argues for the application of the words’ usual and common meaning, which, in conjunction, is "the tools, articles, implements, and physical resources used in the operation of a farm." (Pl.’s Br. in Supp., Dkt. [30-1], at 12–17, 18–24.) She contends that Dr. Prasse's trailer is an "article," "implement" or "physical resource" that equips him to keep, raise, and sell cattle, since Dr. Prasse uses it to transport his cattle to and from cattle sales and events as part of his farming business. (Id. ) To the contrary, State Farm Fire argues that the terms "motor vehicle" and "farm equipment" are mutually exclusive, and that because Dr. Prasse's trailer is a motor vehicle, it cannot also constitute farm equipment. (Def.’s Mem. of Law in Supp., Dkt. [35-1], at 21–23.) State Farm Fire points to several factors in support of its conclusion that Dr. Prasse's trailer is a motor vehicle: it was designed for travel on public roads, it was subject to Georgia's motor vehicle registration requirements, and Dr. Prasse's registration form stated that the trailer was not a "farm vehicle." (Id. )
"Farm equipment" is not defined in the Farm/Ranch Policy and must therefore be given its ordinary and customary meaning. Partin, 770 S.E.2d at 42. According to Merriam-Webster's online dictionary, "equipment" means "the set of articles or physical resources serving to equip a person or thing, such as the implements used in an operation or activity," while Macmillan's online dictionary defines the term as "the tools, machines, or other things that you need for a particular job or activity."
As the parties acknowledge, there does not appear to be any Georgia case law that specifically addresses whether a motor-less trailer constitutes "farm equipment." The closest Georgia case this Court has identified is Partin, in which the Court of Appeals of Georgia held that an insured's four-wheeled motorized all-terrain vehicle could reasonably be construed as a "farm implement" and therefore constitute an exception to the insurance policy's motor vehicle exclusion. 770 S.E.2d at 42–43. Courts in other states have similarly held that trailers, tractors, or other vehicles bought and used primarily for farming purposes may constitute "farm implements" or "farm equipment" rather than motor vehicles. See, e.g., Grinnell Mut. Reinsurance Co. v. Center Mut. Ins. Co., 658 N.W.2d 363, 371, 373 (N.D. 2003) (finding that tractor used for the production of crops that was being towed by a pickup truck was clearly a "farm implement"); Utah Farm Bureau v. Orville Andrews & Sons, 665 P.2d 1308, 1310 (Utah 1983) (concluding that a feeder truck was a "farm implement" as a matter of law).
And, in cases where courts found that certain vehicles were motor vehicles and not farm equipment or farm implements, the courts’ analysis tended to turn on the vehicle's intended purpose or use, its license, registration, and insurance status, and its physical characteristics. See, e.g., Nationwide Mut. Ins. Cos. v. Lagodinski, 683 N.W.2d 903, 908 (N.D. 2004) (concluding that tractor/trailer was a motor vehicle, rather than farm equipment, because it was designed for travel on public roads, was not primarily or exclusively used for farm purposes, and was subject to state motor vehicle registration requirements); Wells v. Auto Owners Ins. Co., 864 N.E.2d 356, 360 (Ind.App. 2007) (truck was a motor vehicle because it was "designed and used for travel on public roads," was a registered vehicle, and "was not kept in dead storage or used exclusively on the [farm]"); North Star Mut. Ins. Co. v. Holty, 402 N.W.2d 452, 456 (Iowa 1987) (finding that the truck was a motor vehicle, and not a farm implement, because it was outfitted with "a windshield, rear view mirror and lights," was "clearly designed for highway use" and "used on public roads," and was "licensed and insured as a motor vehicle" for fifteen years).
Here, the evidence shows that Dr. Prasse purchased and used his trailer solely for work on his farm and to transport cattle to events associated with or in support of his farming business. In addition, it does not appear that his trailer had the typical characteristics or features of a motor vehicle, such as a windshield, rear view mirror, or most notably, a motor. The fact that Dr. Prasse's trailer was subject to Georgia's motor vehicle registration requirements is just another factor for this Court to consider and carries no more or less weight than the other considerations. And, importantly, the rules of contract construction guide the Court to construe any ambiguities and exclusions from coverage in the Farm/Ranch Policy strictly against the insurer, State Farm Fire.
Thus, considering the Farm/Ranch Policy as a whole and construing the ambiguity in the Farm/Ranch Endorsement against State Farm Fire, this Court finds that Dr. Prasse's trailer constitutes "farm equipment." And, because the Court holds that Dr. Prasse was operating farm equipment at the time of his accident with Mrs. Britnell, it also finds that the Farm/Ranch Endorsement applies, subject to a jury's determination as to whether Dr. Prasse complied with the Farm/Ranch Policy's timely notice provision as a condition precedent to coverage.
Accordingly, Mrs. Britnell's motion for summary judgment as to the issue of coverage is GRANTED and State Farm Fire's motion for summary judgment as to the same issue is DENIED .
III. Defendant's Motion for Summary Judgment on Remaining Claims [35]
State Farm Fire also moves for summary judgment on all of Mrs. Britnell's remaining claims against it – breach of contract, negligent or bad faith failure to settle under the common law, punitive damages, and attorneys’ fees and litigation expenses. (Def.’s Mem. of Law in Supp., Dkt. [35-1], at 1, 7, 23–24.) For the reasons discussed below, State Farm Fire's motion for summary judgment is denied as to Mrs. Britnell's claims for breach of contract, negligent or bad faith failure to settle, and attorneys’ fees and litigation expenses, but granted as to her punitive damages claim.
A. Claims for Breach of Contract and Negligent or Bad Faith Failure to Settle
Mrs. Britnell asserts a claim for breach of contract against State Farm Fire based on State Farm Fire's denial of coverage under the Farm/Ranch Policy for Dr. Prasse's accident with Mrs. Britnell and failure to indemnify Dr. Prasse in the underlying lawsuit. (Compl., Dkt. [1], at ¶¶ 55–63.) In addition, Mrs. Britnell brings a claim against State Farm Fire for negligent or bad faith failure to settle under the common law based on State Farm Fire's failure to settle Mrs. Britnell's claims against Dr. Prasse prior to trial within the Farm/Ranch Policy's limits. (Id. at ¶¶ 64–71.) State Farm Fire moves for summary judgment on both claims but does not provide any argument separate and apart from those supporting its motion for summary judgment on the coverage issue. (Def.’s Mem. of Law in Supp., Dkt. [35-1], at 1, 7.)
"The elements for a breach of contract claim in Georgia are the (1) breach and the (2) resultant damages (3) to the party who has the right to complain about the contract being broken." Winders v. State Farm Fire & Cas. Co., 359 F. Supp. 3d 1274, 1277–78 (N.D. Ga. 2018) (citation and quotations omitted); see also Seckinger-Lee Co. v. Allstate Ins. Co., 32 F. Supp. 2d 1348, 1357–58 (N.D. Ga. 1998) ("The essential elements of a breach of contract claim are (1) a valid contract; (2) material breach of its terms; and (3) damages arising therefrom.") (citation and quotations omitted).
Similarly, "[t]o prevail on a negligent or bad faith failure to settle claim, an insured must prove that ‘the insurer had a duty to settle the case, breached that duty, and the breach proximately caused damages to the insured beyond the damages, if any, contemplated by the insurance contract.’ " Dickerson v. Am. Nat'l Prop. & Cas. Co., 2009 WL 1035131, at *6 (M.D. Ga. Apr. 16, 2009) (quoting Delancy v. St. Paul Fire & Marine Ins. Co., 947 F.2d 1536, 1546–47 (11th Cir. 1991) ) (punctuation omitted).
The Court need not analyze Mrs. Britnell's breach of contract or negligent or bad faith failure to settle claims in depth at this stage. That is because both claims require the existence of a valid and enforceable contract or insurance policy and a duty to perform pursuant to that contract or policy. And, as this Court has explained, there is a fact issue as to whether Dr. Prasse provided timely notice to State Farm Fire of Mrs. Britnell's lawsuit. Without the insured's satisfaction of a condition precedent to the Farm/Ranch Policy, State Farm Fire would be under no obligation to perform its own duties pursuant to the Farm/Ranch Policy or settle the underlying litigation. See 105 R.R. St., LLC, 2016 WL 9454412, at *2 (if an insured "has not demonstrated justification for failure to give notice per the terms of the policy, then the insurer is not obligated to provide either a defense or coverage") (citation and quotations omitted); see also Travelers Cas. & Sur. Co. v. Stewart, 663 Fed. App'x 784, 787–88 (11th Cir. 2016) (concluding that insurer could not have acted in bad faith in failing to settle where it had no duty to do so under the applicable policy). Thus, for the same reasons that the Court holds that there is a genuine dispute of material fact on the timely notice issue underlying Mrs. Britnell's first claim, the Court also finds that there is a genuine dispute of material fact as to her breach of contract and negligent or bad faith failure to settle claims.
Accordingly, State Farm Fire's motion for summary judgment as to Mrs. Britnell's breach of contract and negligent or bad faith failure to settle claims is DENIED .
B. Claim for Punitive Damages Under O.C.G.A. § 51-12-5.1
Mrs. Britnell asserts her claim for punitive damages pursuant to O.C.G.A. § 51-12-5.1 because State Farm Fire has acted with "willful misconduct, malice, fraud, wantonness, oppression, [and] that entire want of care which [ ] raise[s] the presumption of conscious indifference." (Compl., Dkt. [1], at ¶¶ 72–76.) State Farm Fire moves for summary judgment on Mrs. Britnell's punitive damages claim, arguing that: (1) because there is no coverage for Dr. Prasse's accident with Mrs. Britnell under the Farm/Ranch Policy, this claim too must fail; and (2) "the right to recover punitive damages cannot be assigned." (Def.’s Mem. of Law in Supp., Dkt. [35-1], at 23–24.) Mrs. Britnell opposes State Farm Fire's request, noting that State Farm Fire's arguments are premature since the parties have not yet completed expert discovery, and she anticipates that she may discover evidence during this phase of discovery to support her punitive damages claim. (Pl.’s Resp. in Opp., Dkt. [42], at 13–14.)
Though "the issue of punitive damages is usually a matter for the jury," Little v. Ford Motor Co., 2017 WL 6994586, at *17 (N.D. Ga. Dec. 21, 2017) ) (citation, punctuation, and quotations omitted), in some cases the Court can make a decision as a matter of law. This is one of those cases.
"Georgia law does not allow an assignee of an insured to recover punitive damages, even for bad faith failure to settle claims." G.M. Sign, Inc. v. St. Paul Fire & Marine Ins. Co., 2015 WL 12592725, at *3 (N.D. Ga. June 1, 2015) (citation omitted); see also Empire Fire & Marine Ins. Co. v. Driskell, 264 Ga.App. 646, 592 S.E.2d 80, 83 (2003) (holding where insured's assignee pursued failure to settle claims only as assignee, and not as individual, assignee could not recover punitive damages because "the right to punitive damages cannot be assigned").
Even if Mrs. Britnell was not bringing her punitive damages claim as an assignee of an insured, though, she still would not be able to recover punitive damages for her contract-based claims, since "punitive damages are not allowed in contract claims." Headrick v. State Farm Fire & Cas. Ins. Co., 2008 WL 11322195, at *2 (N.D. Ga. Mar. 28, 2008) (citation omitted); see also, e.g., Javits v. State Farm Fire & Cas. Co., 2014 WL 4230069, at *14 (N.D. Ga. Aug. 26, 2014) ("Under Georgia law, punitive damages cannot be awarded for breach of contract.") (citations omitted); Brooks v. Hartford Ins. Co., 2010 WL 11509167, at *4 (N.D. Ga. Oct. 13, 2010) (holding that punitive damages are not available where plaintiff simply asserts that the insurance company failed to comply with its contractual duties under the insurance policy) (citation omitted). Indeed, "[p]ursuant to O.C.G.A. § 51-12-5.1, punitive or exemplary damages may only be awarded in tort actions." Id. (citation omitted) (emphasis supplied).
Accordingly, Mrs. Britnell cannot recover punitive damages against State Farm Fire, and State Farm Fire's motion for summary judgment as to this claim is GRANTED .
C. Claim for Attorneys’ Fees and Litigation Expenses Under O.C.G.A. § 13-6-11
Finally, Mrs. Britnell asserts her claim for attorneys’ fees and litigation expenses under O.C.G.A. § 13-6-11 on the grounds that State Farm Fire's actions have constituted "bad faith" and shown "stubborn litigiousness" and caused her "unnecessary trouble and expense." (Compl., Dkt. [1], at ¶¶ 77–78.) State Farm Fire moves for summary judgment on these claims, arguing that: (1) because there is no coverage for Dr. Prasse's accident with Mrs. Britnell under the Farm/Ranch Policy, this claim also must fail; and (2) its actions do not meet the statutory standard to recover attorneys’ fees and litigation expenses. (Def.’s Mem. of Law in Supp., Dkt. [35-1], at 23–24.) Mrs. Britnell opposes State Farm Fire's motion on this claim for the same reason she opposes its motion for summary judgment on her punitive damages claim. (Pl.’s Resp. in Opp., Dkt. [42], at 13–14.)
O.C.G.A. § 13-6-11 provides that "[t]he expenses of litigation generally shall not be allowed as part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them." "[B]ad faith warranting an award of attorney fees must have arisen out of the transaction on which the cause of action is predicated," and "[i]t may be found in defendant's carrying out of the provisions of the contract." Steel Magnolias Realty, LLC v. Bleakley, 276 Ga.App. 155, 622 S.E.2d 481, 483 (2005) (citations, punctuation, and quotations omitted); see also Nash v. Reed, 349 Ga.App. 381, 825 S.E.2d 853, 856 (2019) ("Bad faith under O.C.G.A. § 13-6-11 must have arisen out of how the defendant acted in dealing with the plaintiff. It pertains to the transaction ... out of which the cause of action arose, not to the defendant's conduct after the cause of action arose.") (citation and quotations omitted). On the other hand, "[a] recovery of attorney fees ... for stubborn litigiousness or for causing the plaintiff unnecessary trouble and expense is authorized where the evidence reveals no bona fide controversy or dispute with regard to the defendant's liability." Id. (citations omitted).
Importantly, "questions concerning bad faith, stubborn litigiousness, or unnecessary trouble and expense, under O.C.G.A. § 13-6-11, are generally questions for the jury to decide." Copeland v. Home Grown Music, Inc., 358 Ga.App. 743, 856 S.E.2d 325, 333 (2021) (citation and quotations omitted); see also Nash, 825 S.E.2d at 856 ("The intent of the law, as shown by the words, ‘the jury may allow them,’ is to leave the matter of expenses of litigation to the jury trying the case.") (citations, punctuation, and quotations omitted). A court should grant a defendant's motion for summary judgment on a claim for attorneys’ fees and litigation expenses under O.C.G.A. § 13-6-11 only "if there is no evidence of bad faith or stubborn litigiousness." Id. (citations and quotations omitted).
Here, Mrs. Britnell is attempting to recover her attorneys’ fees and litigation expenses from State Farm Fire for State Farm Fire's actions throughout this dispute, including its failure to settle and its denial of coverage for the accident under the Farm/Ranch Policy. But, as this Court has held, there is a fact issue as to whether Dr. Prasse provided timely notice of the accident to State Farm Fire. And, because of this fact issue that is central to the resolution of Mrs. Britnell's claims against State Farm Fire, the Court cannot say that State Farm Fire acted in bad faith or was stubbornly litigious as a matter of law.
Accordingly, State Farm Fire's motion for summary judgment as to Mrs. Britnell's claim for attorneys’ fees and litigation expenses is DENIED .
Conclusion
For the foregoing reasons, Plaintiff's Motion for Partial Summary Judgment [30] as to the issue of coverage is GRANTED and Defendant's Motion for Summary Judgment [35] as to the issue of coverage is DENIED . The Court specifically finds that the Farm/Ranch Endorsement applies to the underlying accident, but that there is a genuine dispute of material fact as to the insured's satisfaction of the Farm/Ranch Policy's timely notice provision.
In addition, Defendant's Motion for Summary Judgment [35] as to Plaintiff's remaining claims is GRANTED in part and DENIED in part. It is granted as to Plaintiff's punitive damages claim, and it is denied as to Plaintiff's breach of contract, negligent or bad faith failure to settle, and attorneys’ fees and litigation expenses claims.
SO ORDERED this 6th day of April, 2021.