United States District Court for the Northern District of Georgia, Atlanta Division

September 21, 2023, Decided; September 21, 2023, Filed

Civil Action No. 1:22-cv-01050-SDG

JOAN PEREZ and ARIAN PEREZ, Plaintiffs, v. GYPSUM EXPRESS LTD, DENNIS HORNE, and PROTECTIVE INSURANCE COMPANY, Defendants.

Core Terms

direct action, insured, summary judgment, excess insurer, material fact, self-retention, coverage, movant’s, asserts, driving, summary judgment motion, insurance policy, district court, motor carrier, tractor-trailer, self-insurance, collision, exhausted, carrier, genuine

Counsel:  [*1] For Joan Perez, Arian Perez, Plaintiffs: David S. Eichholz, LEAD ATTORNEY, The Eichholz Law Firm, P.C., Savannah, GA.

For Gypsum Express Ltd., Dennis Horne, Protective Insurance Company, Defendants: Marvin Dewayne Dikeman, LEAD ATTORNEY, Webb Zschunke Neary & Dikeman, Atlanta, GA.

Judges: Steven D. Grimberg, United States District Judge.

Opinion by: Steven D. Grimberg

Opinion

OPINION AND ORDER

This matter is before the Court on Defendant Protective Insurance Company’s (Protective) unopposed motion for summary judgment [ECF 21]. For the reasons stated below, Protective’s motion is GRANTED.

I. BACKGROUND

This action stems from a motor vehicle accident that occurred on March 24, 2020.¹ Plaintiff Joan Perez was driving near an intersection of Wider Highway in Gwinnett County, Georgia.² She was in the right turn lane.³ Defendant Dennis Horne was driving a tractor-trailer on behalf of Defendant Gypsum Express Ltd. in the lane immediately to the left of Joan Perez.⁴ Plaintiffs allege that Horne attempted to turn right from the lane he was in and caused a collision between his tractor-trailer and the vehicle Joan Perez was driving.⁵ She allegedly suffered permanent injuries as a result of the collision.⁶ She asserts various claims [*2]  for damages and her wife, Arian Perez, asserts a claim for loss of consortium.⁷ Protective provided an insurance policy to Gypsum at the time of the accident,⁸ and Plaintiffs assert a direct action claim against it under O.C.G.A. § 40-2-140.⁹

Protective moves for summary judgment on the basis that it is not subject to Georgia’s direct action statute since it is Gypsum’s excess insurer and Gypsum is self-insured up to $100,000.¹⁰ Accordingly, Protective contends that, under Georgia law, it owes no coverage to Gypsum until Gypsum’s self-insurance has been exhausted.¹¹ Protective’s motion attaches a copy of the insurance policy it issued to Gypsum (the Policy).¹² Plaintiffs do not dispute the authenticity of this document, nor have they otherwise responded to Protective’s motion.

Gypsum is the named insured in the Policy.¹³ The Policy provides for a self-retention of $100,000 per occurrence for certain coverages, including for personal injury and property damage liability, and for losses to covered vehicles.¹⁴ The Policy is expressly an excess contract—providing coverage only in excess of the self-retention amount.¹⁵

II. LEGAL STANDARD

Summary judgment is appropriate when “there is no genuine [*3]  dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Supreme Court has held that, under the plain language of this Rule, the entry of summary judgment is required “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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

Plaintiffs did not respond to Protective’s Statement of Material Facts Not in Dispute. LR 56.1(B)(2)(a)(2), NDGa. See also Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009) (explaining that a plaintiff’s “failure to comply with [this Court’s] local rule 56.1 is not a mere technicality”). Protective’s few factual assertions are supported by citations to record evidence—namely, the Policy. Reese v. Herbert, 527 F.3d 1253, 1269 (11th Cir. 2008) (holding that, “after deeming the movant’s statement of undisputed facts to be admitted pursuant to Local Rule 56.1, the district court must then review the movant’s citations to the record to determine if there is, indeed, no genuine issue of material fact”) (cleaned up). Protective’s facts are therefore admitted.

III. DISCUSSION

In Georgia, a party may not generally “bring a direct action against the liability insurer of the party who allegedly caused the damage unless there is an unsatisfied judgment [*4]  against the insured or it is specifically permitted either by statute or a provision in the policy.” Hartford Ins. Co. v. Henderson & Son, Inc., 258 Ga. 493, 494, 371 S.E.2d 401 (1988) (citing Seaboard Coast Line RR Co. v. Freight Delivery Serv., Inc., 133 Ga. App. 92, 95-96, 210 S.E.2d 42 (1974)). Some exceptions are provided in Georgia’s direct action statutes. Under those laws, a person who has a cause of action against a “motor carrier” may also pursue an action directly against that motor carrier‘s insurer. See, e.g., O.C.G.A. §§ 40-1-122, 40-2-140(d). Protective, however, argues that these laws do not permit a direct suit against an excess carrier.¹⁶

In support of this position, Protective relies on Handley v. Werner Enterprises, Inc., Case No. 7:20-cv-00235 (WLS), 2022 U.S. Dist. LEXIS 4913, 2022 WL 109976 (M.D. Ga. Jan. 11, 2022). There, another district court in Georgia concluded that the motor carrier exception does not apply to excess insurers. Id. at *1. The Georgia Court of Appeals has held similarly. RLI Ins. Co. v. Duncan, 345 Ga. App. 876, 878, 815 S.E.2d 558 (2018) (“As this Court has often noted, this so-called ‘direct action statute’ [O.C.G.A. § 40-1-112] does not authorize actions against an insured’s excess insurer.” (citing Werner Enters., Inc. v. Stanton, 302 Ga. App. 25, 26, 690 S.E.2d 623 (2010); Jackson v. Sluder, 256 Ga. App. 812, 818, 569 S.E.2d 893 (2002))). Since Protective is not legally obligated to pay any sums under the Policy until Gypsum exhausts its self-retention limit, Plaintiffs may not pursue a direct action against Protective at this point and it is not a proper party to this litigation. RLI Ins. Co., 345 Ga. App. at 879.

IV. CONCLUSION

Protective’s motion for summary judgment [ECF 21] is GRANTED and the claims against it are DISMISSED. Plaintiffs and [*5]  the remaining Defendants are DIRECTED to file the Consolidated Pre-Trial Order within 14 days.

SO ORDERED this 21st day of September, 2023.

/s/ Steven D. Grimberg

Steven D. Grimberg

United States District Court Judge

End of Document

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¹ Although Protective moved for summary judgment, much of its statement of undisputed material facts is drawn from the allegations in the Complaint. ECF 21-1, at 1-2. Accordingly, the Court views those allegations in the light most favorable to Plaintiffs, and draws “all justifiable inferences” in their favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

² ECF 1-1, ¶ 6.

³ Id.

⁴ Id. ¶¶ 8-9.

⁵ Id. ¶ 10.

⁶ Id. ¶ 11.

⁷ Id. ¶¶ 13-36.

⁸ Id. ¶¶ 26-27.

⁹ Id. ¶¶ 25-29.

¹⁰ ECF 21-4, ¶¶ 2-4.

¹¹ Id. ¶ 3.

¹² ECF 21-2.

¹³ Id. at 1.

¹⁴ Id. at 2, 3.

¹⁵ Id. at 3.

¹⁶ ECF 21-1, at 3.

Superior Court of Pennsylvania

September 26, 2023, Decided; September 26, 2023, Filed

No. 102 MDA 2023

JACOB E. GODLOVE, SR. AND KAYLA KELLEY IN HER INDIVIDUAL AND AS ADMINISTRATOR OF THE ESTATE OF JACOB E. GODLOVE, JR., Appellant v. JOHN HUMES AND MOUNTAIN VIEW TRANSPORTATION, LLC., AND COUNTY HALL INSURANCE COMPANY INC.

Prior History:  [*1] Appeal from the Order Entered December 29, 2022. In the Court of Common Pleas of Franklin County, Civil Division at No(s): 2022-00501.

Core Terms

preliminary objection, declaratory judgment action, trial court, insured

Case Summary

Overview

HOLDINGS: [1]-The trial court erred in dismissing appellant’s declaratory judgment action because appellants acquired a judgment against the driver and owner of a truck and have received an assignment from them of their rights under the subject insurance policy and thus, there was no issue of non-justiciability, which was the only basis for the dismissal.

Outcome

Reversed and remanded.

LexisNexis® Headnotes

Civil Procedure > Appeals > Standards of Review > De Novo Review

Evidence > Inferences & Presumptions > Inferences

Civil Procedure > … > Responses > Defenses, Demurrers & Objections > Demurrers

Civil Procedure > … > Defenses, Demurrers & Objections > Motions to Dismiss > Failure to State Claim

Civil Procedure > … > Responses > Defenses, Demurrers & Objections > Defects of Form

HN1  Standards of Review, De Novo Review

A reviewing court reviews an order sustaining preliminary objections seeking dismissal of an action de novo. Its standard of review of an order of the trial court overruling or sustaining preliminary objections is to determine whether the trial court committed an error of law. When considering the appropriateness of a ruling on preliminary objections, the appellate court must apply the same standard as the trial court. Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.

Civil Procedure > Appeals > Standards of Review > Abuse of Discretion

HN2  Standards of Review, Abuse of Discretion

A reviewing court will reverse the trial court’s decision regarding preliminary objections only where there has been an error of law or abuse of discretion. When sustaining the preliminary objections will result in the denial of claim or a dismissal of suit, the preliminary objections may be sustained only where the case is free and clear of doubt.

Insurance Law > Liability & Performance Standards > Good Faith & Fair Dealing > Duty to Defend

Insurance Law > … > Property Insurance > Obligations > Duty to Defend

Insurance Law > Liability & Performance Standards > Good Faith & Fair Dealing > Indemnification

Insurance Law > … > Business Insurance > Commercial General Liability Insurance > Duty to Defend

Insurance Law > … > Business Insurance > Commercial General Liability Insurance > Indemnification

HN3  Good Faith & Fair Dealing, Duty to Defend

The proper construction of a policy of insurance is resolved as a matter of law in a declaratory judgment action. The Declaratory Judgments Act is available to interpret the obligations of the parties under an insurance contract, including the question of whether an insurer has a duty to defend as well as a duty to indemnify a party making a claim under the policy. Both the duty to defend and the duty to indemnify may be resolved in a declaratory judgment action. An insurer’s duties under an insurance policy are triggered by the language of the complaint against the insured. In determining whether an insurer’s duties are triggered, the factual allegations in the underlying complaint are taken as true and liberally construed in favor of the insured. The obligation of an insurer to defend an action against the insured is fixed solely by the allegations in the underlying complaint. As long as a complaint alleges an injury which may be within the scope of the policy, the insurer must defend its insured until the claim is confined to a recovery the policy does not cover.

Civil Procedure > … > Declaratory Judgments > State Declaratory Judgments > Grounds for Relief

Civil Procedure > … > Declaratory Judgments > State Declaratory Judgments > Scope of Declaratory Judgments

Civil Procedure > … > Declaratory Judgments > State Declaratory Judgments > Uniform Declaratory Judgment Act

HN4  State Declaratory Judgments, Grounds for Relief

Declaratory judgments are nothing more than judicial searchlights, switched on at the behest of a litigant to illuminate an existing legal right, status or other relation. The Declaratory Judgments Act empowers courts to declare rights, status, and other legal relations whether or not further relief is or could be claimed, and these declarations have the force and effect of a final judgment or decree. 42 Pa.C.S. § 7532.

Civil Procedure > … > Justiciability > Case & Controversy Requirements > Actual Controversy

Civil Procedure > … > Declaratory Judgments > State Declaratory Judgments > Scope of Declaratory Judgments

Civil Procedure > … > Declaratory Judgments > State Declaratory Judgments > Grounds for Relief

HN5  Case & Controversy Requirements, Actual Controversy

To bring a declaratory judgment action, there must exist an actual controversy, as declaratory judgment is not appropriate to determine rights in anticipation of events which may never occur. It is an appropriate remedy only where a case presents antagonistic claims indicating imminent and inevitable litigation.

Evidence > Judicial Notice

HN6  Evidence, Judicial Notice

Judicial Notice may be taken by the court on its own but must be taken if a party requests it and the court is supplied with the necessary information. Pa. R. Evid. 201(c).

Counsel: For Kayla Kelley, Jacob E. Godlove, Sr., Estate of Jacob E. Godlove Jr., Appellants: Scott B. Cooper, Schmidt Kramer, P.C., Harrisburg, PA.

Mountain View Transportation, LLC., Appellee, Pro se, Chambersburg, PA.

For John Humes, Appellee: John Humes, Chambersburg, PA.

For County Hall Insurance Company, Appellee: Gerald J. Valentini, Ward A. Rivers, Deasey, Mahoney & Valentini, Ltd., Philadelphia, PA.

Judges: BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.^* OPINION BY PANELLA, P.J. President Judge Emeritus Stevens joins the Opinion. Judge Murray concurs in the result.

Opinion by: PANELLA

Opinion

OPINION BY PANELLA, P.J.:

Jacob E. Godlove, Sr. and Kayla Kelley in her individual capacity and as administrator of the estate of Jacob E. Godlove, Jr. (collectively “Appellants”), appeal from the order granting the preliminary objections filed by Risk Retention Groups and County Hall Insurance Company, dismissing Appellants’ declaratory judgment action. Appellants were seeking a declaration that a policy, specifically the MCS-90 endorsement which addresses motor carrier policies of insurance [*2]  for public liability, issued by County Hall to its insureds, John R. Humes and Mountain View Transportation, LLC, covers the vehicle in issue in the underlying civil action for damages filed by Appellants against Humes and Mountain View. Upon review, we reverse.

We defer to the trial court’s concise statement of the relevant facts:

The facts giving rise to this matter occurred on October 22, 2019. Defendant John R. Humes (hereinafter “Defendant Humes”) drove a commercial truck owned by Defendant Mountain View Transportation, LLC, (hereinafter “Defendant Mountain View”) and struck a small pickup driven by Plaintiff Jacob E. Godlove, Sr., while Plaintiff Kayla Kelley was his passenger (hereinafter “Plaintiffs”). Plaintiffs instituted a personal injury case’ in Franklin County (hereinafter “underlying action”) via Writ of Summons on April 30, 2021. Defendants Humes and Mountain View were served and County Hall initially defended them under a reservation of rights.

Thereafter, Defendant County Hall filed a Declaratory Judgment action (concerning their coverage obligations for the accident) in federal court on October 14, 2021. Defendant County Hall named only Humes and Mountain View as defendants [*3]  in its federal action; Plaintiffs were not permitted to intervene. Humes and Mountain View did not litigate the federal action and Defendant County Hall moved for a default judgment in February 2022.

Plaintiffs instituted this state court Declaratory Judgment action via Complaint on February 21, 2022. Plaintiffs sought a determination of whether Defendant Humes was a permissive driver under the County Hall commercial insurance policy purchased by Defendant Mountain View. All Defendants were served. Defendants Humes and Mountain View have no counsel of record and have not participated in this case thus far.

After two complaints and corresponding sets of preliminary objections, Plaintiffs filed their Second Amended Declaratory Judgment Complaint on May 31, 2022.¹ Defendant County Hall filed the subject preliminary objections and brief in support on June 22, 2022. Plaintiffs filed their response on July 11, 2022[,] and their brief in opposition on August 16, 2022. Oral argument was held on October 6, 2022. On December 29, 2022, [the trial court], via Order, sustained Defendant County Hall’s preliminary objections and dismissed Plaintiffs’ case with prejudice. Plaintiffs appealed on January [*4]  6, 2023[,] and filed their Statement of Errors Complained of on Appeal on January 17, 2023.

Trial Court Opinion, 2/20/2023, at 1-3 (footnotes and citations to the record omitted). The trial court further stated:

Shortly after their appeal in this matter, Plaintiffs obtained and entered of record a “Non Execution, Assignment, Settlement and Stipulation to Consent Judgment” with Defendants Humes and Mountain View in the underlying case (Franklin County Docket 2021-1310) on January 16, 2023. A judgment of $1,000,000 was entered of record on January 17, 2023.

Id., at 9, n.4.

On appeal, Appellants raise two arguments, both of which address the issue of whether it was legally and procedurally permissible for Appellants, as the injured parties in a related civil action, to institute this declaratory judgment action against the alleged tortfeasors’ insurance carrier.

A. Whether the trial court erred as a matter of law in granting the Appellee’s County Hall Insurance Company’s preliminary objections and dismissing the Plaintiffs’ /Appellants’ case with prejudice because the Appellants are entitled to pursue the case under Pennsylvania Supreme Court precedent Allstate Insurance v Stinger, 400 Pa. 533, 163 A.2d 74 (Pa. 1960).

B. Whether the trial court erred as [*5]  a matter of law in granting the Appellee’s County Hall Insurance Company’s preliminary objections and dismissing the Plaintiffs’ /Appellants’ case with prejudice because the Pennsylvania Declaratory Judgment Act mandates for all interested parties to be included a declaratory judgment action. 42 Pa. C.S. § 7540.

Appellants’ Brief at i-ii.

HN1 We review an order sustaining preliminary objections seeking dismissal of an action de novo:

Our standard of review of an order of the trial court overruling or [sustaining] preliminary objections is to determine whether the trial court committed an error of law. When considering the appropriateness of a ruling on preliminary objections, the appellate court must apply the same standard as the trial court.

Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally [*6]  sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.

Fiedler v. Spencer, 2020 PA Super 83, 231 A.3d 831, 835-36 (Pa. Super. 2020) (citations omitted). HN2 This Court will reverse the trial court’s decision regarding preliminary objections only where there has been an error of law or abuse of discretion. When sustaining the preliminary objections will result in the denial of claim or a dismissal of suit, the preliminary objections may be sustained only where the case is free and clear of doubt. Hill v. Ofalt, 2014 PA Super 17, 85 A.3d 540, 547-548 (Pa. Super. 2014).

As stated above, this case involves a declaratory judgment action to determine the scope of liability of County Hall to its insureds, Humes and Mountain View, because the policy in issue allegedly covers the vehicle involved in the accident which occurred on October 22, 2019. The underlying civil action, docketed to No. 2021-1310 in Franklin County, Pennsylvania, was referenced and included as an exhibit to the Appellants’ pleadings.

HN3 It is well settled that the proper construction of a policy of insurance is resolved as a matter of law in a declaratory judgment action. The Declaratory Judgments Act is available to interpret the obligations of [*7]  the parties under an insurance contract, including the question of whether an insurer has a duty to defend as well as a duty to indemnify a party making a claim under the policy. See Erie Insurance Exchange v. Lobenthal, 2015 PA Super 78, 114 A.3d 832, 836 (Pa. Super. 2015).

Both the duty to defend and the duty to indemnify may be resolved in a declaratory judgment action.

It is well established that an insurer’s duties under an insurance policy are triggered by the language of the complaint against the insured. In determining whether an insurer’s duties are triggered, the factual allegations in the underlying complaint are taken as true and liberally construed in favor of the insured.

Indalex Inc. v. National Union Fire Ins. Co. of Pittsburgh, 2013 PA Super 311, 83 A.3d 418, 421 (Pa.Super.2013) (citation and quotation marks omitted).

The obligation of an insurer to defend an action against the insured is fixed solely by the allegations in the underlying complaint. As long as a complaint alleges an injury which may be within the scope of the policy, the insurer must defend its insured until the claim is confined to a recovery the policy does not cover.

Erie Ins. Exchange v. Fidler, 2002 PA Super 307, 808 A.2d 587, 590 (Pa.Super.2002) (citations omitted).

American Nat. Property and Cas. Companies v. Hearn, 2014 PA Super 118, 93 A.3d 880, 883-884 (Pa. Super. 2014) (some citations omitted).

HN4 “Declaratory judgments are nothing more than judicial searchlights, switched on at the behest of a litigant to illuminate an existing legal right, status or other relation.” Wagner v. Apollo Gas Co., 399 Pa. Super. 323, 582 A.2d 364, 365 (Pa. Super. 1990) (citation omitted). [*8]  The Declaratory Judgments Act empowers courts “to declare rights, status, and other legal relations whether or not further relief is or could be claimed,” and these declarations “have the force and effect of a final judgment or decree.” 42 Pa.C.S.A. § 7532.

HN5 To bring a declaratory judgment action,

there must exist an actual controversy[, as] [d]eclaratory judgment is not appropriate to determine rights in anticipation of events which may never occur. It is an appropriate remedy only where a case presents antagonistic claims indicating imminent and inevitable litigation.

Bromwell v. Michigan Mut. Ins. Co., 716 A.2d 667, 670 (Pa. Super. 1998 (citation omitted)).

As stated by the trial court, there is no question that Appellants have reached a settlement with Humes and Mountain View, have entered a judgment against them, and have taken an assignment from them in order to pursue this declaratory judgment action against County Hall. The action docketed to No. 2021-1310 in the Court of Common Pleas of Franklin County was referenced in and attached to a pleading filed by Appellants, and the settlement, judgment and assignment in that case was detailed by the trial court in its opinion filed pursuant to Pa.R.A.P. 1925. See Trial Court Opinion, 2/20/2023, at 9, n.4. Pursuant to our Rules of Evidence, [*9] 

[t]he court may judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known within the trial court’s territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

Pa. R.E. Rule 201(b). HN6 Additionally, Judicial Notice may be taken by the court on its own but must be taken “if a party requests it and the court is supplied with the necessary information.” Pa. R.E. Rule 201(c).

As Appellants have acquired a judgment against Humes and Mountain View and have received an assignment from them of their rights under the County Hall policy, there is no issue of non-justiciability which existed in the Bromwell and Avrich cases. Because this was the only basis for the trial court’s dismissal of Appellants’ Declaratory Judgment action, the Order of December 29, 2022, is reversed and this matter is remanded to the Court of Common Pleas of Franklin County for proceedings consistent with this decision.

Judgment reversed. Case remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

President Judge Emeritus Stevens joins the Opinion.

Judge Murray concurs in the result.

Judgment Entered.

Date: 09/26/2023

End of Document

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^* Former Justice specially assigned to the Superior Court.

¹ In the Second Amended Declaratory Judgment Complaint, Appellants stated that they had filed an Amended Complaint in the underlying action on September 16, 2021, against Humes and Mountain View; the Amended Complaint was attached as Exhibit C. See Second Amended Declaratory Judgment Complaint, ¶ 11 and Exhibit C. The Amended Complaint against Humes and Mountain View indicated that it was docketed to No. 2021-1310 in the Court of Common Pleas of Franklin County, Pennsylvania, and included allegations in reference to the automobile accident which occurred on October 22, 2019.