Unique Auto Sales, LLC v. Dunwody Insurance Agency , 348 Ga. App. 656 ( 2019 )

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and REESE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
February 19, 2019
In the Court of Appeals of Georgia
A18A1915. UNIQUE AUTO SALES, LLC ET AL. v. DUNWODY
INSURANCE AGENCY ET AL.
BARNES, Presiding Judge.
Unique Auto Sales, LLC and its owner/operator Justin Campbell appeal the
summary judgment entered against them and in favor of Dunwody Insurance Agency
and its agent, Thomas McEachern. At issue is whether the insurance parties can be
held liable for failure to procure certain insurance coverage for Unique Auto Sales.
The trial court answered no to this question. For reasons explained below, we reverse.
Summary judgment is properly granted “if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law[.]” OCGA § 9-11-56 (c). “In our de novo
review of the grant of a motion for summary judgment, we must view the evidence,
and all reasonable inferences drawn therefrom, in the light most favorable to the
nonmovant.” (Citation and punctuation omitted.) Cowart v. Widener, 287 Ga. 622,
624 (1) (a) (697 SE2d 779) (2010).
So viewed, the record shows the following. Unique Auto Sales is a wholesaler
of used automobiles. It buys used vehicles from various sources, then shops for
business purchasers of those vehicles, then delivers the vehicles – typically, on a
“consignment” basis – to those purchasers at their designated locations. With respect
to the size of the enterprise, during 2017, Unique Auto Sales was selling as many as
600 vehicles per month. Campbell was operating Unique Auto Sales out of his
Georgia residence, but almost none of the business’s vehicles were stored at that
location.
For about five years, Unique Auto Sales delivered vehicles to High Line
Motors, located in South Carolina and owned by Michael Alexon. During those years,
Unique Auto Sales would consign vehicles to the South Carolina enterprise and
receive payments after that company executed sales.1 Then in 2015, the South
1
Campbell deposed that sometimes there was a “straight sale” in that “[Alexon]
would buy a car and I would sell it.”
2
Carolina company ceased paying Unique Auto Sales for vehicles that had been
delivered to its designated South Carolina location. Seven of those vehicles were
never recovered, and Unique Auto Sales calculated a loss of approximately $230,000.
To recoup its loss, Unique Auto Sales filed a claim with its insurance company,
Utica National Insurance Group. The insurance company denied the claim. In a letter
to Campbell dated November 18, 2015, Utica National Insurance Group set out
certain policy provisions, including an exclusion that the insurance company would
not pay for:
“Loss” to any covered ‘auto’ displayed or stored at any location not
shown in Item Three of the Declarations if the ‘loss’ occurs more than
45 days after your use of the location begins.2
It is undisputed that “Item Three of the Declarations” listed only Campbell’s Georgia
residence. Hence, as Appellants Unique Auto Sales and Campbell maintain in their
joint appellate brief, “Utica issued a policy with an exclusion for autos displayed or
2
While the letter displays emphasis as shown above, the Appellants’ joint brief
to this Court footnotes: “emphasis added.”
3
stored on premises other than Unique Auto’s listed address, which happened to be
Campbell’s home.”3
In this lawsuit, Unique Auto Sales and Campbell (collectively, the “Automobile
Plaintiffs”) sought to recoup the loss from the insurance agency and its agent who
procured the insurance policy – Dunwody Insurance Agency and Thomas McEachern
(collectively, “Insurance Defendants”). The Automobile Plaintiffs alleged that the
Insurance Defendants knew Unique Auto Sales’ business model; that in about 2012,
the Insurance Defendants secured an insurance policy for Unique Auto Sales from
Utica National Insurance Group; that the policy remained in effect at the time of the
claimed loss; that the Insurance Defendants had repeatedly assured the Automobile
Plaintiffs that the coverage provided by the policy was appropriate for Unique Auto
Sales; that the Automobile Plaintiffs relied on those assurances; that the insurance
policy procured by the Insurance Defendants provided Unique Auto Sales with
virtually no coverage; and that the Automobile Plaintiffs had consequently suffered
3
Similarly, Appellees Dunwody Insurance Agency and its agent McEachern
point out in their joint appellate brief, “Appellants never listed the South Carolina
address for Highline Motors, even after using it for over 5 years to consign vehicles
for sale there.”
4
a loss of nearly $230,000. The Automobile Plaintiffs thus sought to recover damages
from the Insurance Defendants under theories of negligence and breach of contract.
During discovery, Campbell recounted that he had procured the policy at issue
in 2012, and had renewed coverage through 2016. He admitted that he had read the
entirety of neither the initial policy nor any renewal documentation. He asserted,
however, that the insurance agency and its agent were experts, and so he relied on the
instruction and expertise of McEachern (the insurance agent) who repeatedly assured
him that Unique Auto Sales was adequately covered.
The Insurance Defendants filed a motion for summary judgment, arguing that
Campbell was obligated to read the policy, and that had he done so, he would have
ascertained that the type of loss claimed here was not covered.
As a general rule, an insurance agent who procures insurance, but
fails to obtain all of the requested coverage, is insulated from liability if
the insured does not read the policy. This is because an insured has a
duty to read and examine an insurance policy to determine whether it
provides all of the coverage sought. The general rule, however, has
several exceptions, including: [w]hen the agent has held himself out as
an expert and the insured has reasonably relied on the agent’s expertise
to identify and procure the correct amount or type of insurance, unless
an examination of the policy would have made it readily apparent that
the coverage requested was not issued.
5
(Citations and punctuation omitted; emphasis supplied.) Cottingham & Butler, Inc.
v. Belu, 332 Ga. App. 684, 686-687 (1) (774 SE2d 747) (2015).
In its order granting summary judgment to the Insurance Defendants, the trial
court found that there was no dispute that Campbell had not read the entire policy,
and that there was “some evidence of reliance by [the Automobile] Plaintiffs on Mr.
McEachern in assessing their insurance needs.” The court then set out as dispositve:
The Court finds [that] no genuine issues of material fact exist regarding
whether the exclusion provision was “readily apparent.” The
“Exclusion” provision of the Policy is plain and unambiguous. The
exclusion provision is under a main heading title “PHYSICAL
DAMAGE” in bold print and the subheading titled “Exclusions.”
In this appeal, the Automobile Plaintiffs contend that the grant of summary
judgment was not authorized. They assert that there was no evidence of “the actual
context in which the exclusion appears, let alone of its conspicuity,” because the
record did not contain the full policy. The Insurance Defendants make no assertion
that the policy was presented to the trial court;4 instead, they cite that the exclusion,
4
See generally Court of Appeals Rule 25 (b) (“Part One [of appellee’s brief]
shall point out any material inaccuracy or incompleteness of appellant’s statement of
facts and any additional statement of facts deemed necessary, plus citations to
additional parts of the record or transcript deemed material. Failure to do so shall
constitute consent to a decision based on the appellant’s statement of facts. Except
6
as well as various policy provisions that immediately preceded the exclusion, were
set forth in Utica National Insurance Group’s letter to Campbell, wherein the
insurance company took the position that the claimed loss was not covered.5
It is apparently undisputed that the policy in effect at the time of the loss
included the language cited within the letter. And the trial court expressly found in
its order, “The ‘Exclusion’ provision of the Policy is plain and unambiguous.”
But . . . the key inquiry is not whether a court or an insurance expert
could determine the import of the provision. Rather, here we must
consider whether it would have been readily apparent to a layman
reading the insurance policy, based upon the plain and ordinary
meaning of clear and unambiguous language, that the risk causing the
loss was not covered.
(Citation and punctuation omitted; emphasis supplied.) Cottingham & Butler, Inc.,
332 Ga. App. at 689 (1). It is well settled that, under Georgia law, “[t]he duty to read
as controverted, appellant’s statement of facts may be accepted by this Court as
true.”), (c) (2) (ii) (“A contention that certain matters are not supported by the record
may be answered by reference to particular pages where the matters appear.”).
5
In seeking summary judgment, the Insurance Defendants stated in their
motion that they were relying upon, among other things, the “Commercial Auto
Coverage Policy . . . attached hereto as Exhibit B.” The referenced exhibit does not
appear to be the entire policy; the Insurance Defendants do not assert that the
document is the entire policy; in fact, the Insurance Defendants do not cite that
document for any purpose on appeal.
7
remains where an examination of the policy would have made it readily apparent that
the coverage contracted for was not issued.” Atlanta Women’s Club v. Washburne,
207 Ga. App. 3, 5 (427 SE2d 18) (1992) (citation and punctuation omitted; emphasis
supplied); see Cottingham & Butler, Inc., 332 Ga. App. 688 (2) (“[I]f examination of
the policy would have made it readily apparent that the insured did not get the
coverage he requested, the duty to read will still bar a lawsuit against the agent even
if the insured relied upon the agent’s expertise.”) (citation and punctuation omitted;
emphasis supplied).
In this case, the policy does not appear in the record. And even accepting as
undisputed that the language incorporated in the letter set forth policy provisions, and
further presuming that the letter engrafted all the visual attributes of those
provisions,6 the whole of the excerpt incorporated in the letter nevertheless lacks
meaningful contextual relationship to the overall policy. What is more, the numbering
schematic of the excerpt makes it evident that even it (the excerpt) has omitted
provisions that appeared within that portion of the policy.
6
As detailed above, the trial court found that “[t]he exclusion provision is
under a main heading title ‘PHYSICAL DAMAGE’ in bold print and the subheading
titled ‘Exclusions.’” See further, however, footnote 2, supra (finding it unclear as to
whether emphasis displayed in letter was actually set forth in policy).
8
“Summary judgments enjoy no presumption of correctness on appeal, and an
appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56
(c) have been met.” Cowart, 287 Ga. at 624 (1) (a). Given the circumstances here,7
we conclude that the proof submitted was insufficient to demonstrate the absence of
a genuine issue as to whether, upon examination of the policy, it would have been
readily apparent to a layman that the coverage requested had not been issued. See
Crawford v. Lawyers Title Ins. Corp., 296 Ga. App. 459, 460 (675 SE2d 232) (2009)
(although the “pertinent exclusion” was in the record, the policy – the “critical
document” upon which the movant and trial court relied for grant of summary
judgment – was obviously incomplete, rendering the proof submitted insufficient to
demonstrate the absence of a genuine issue as to any material fact); Meeler v. Natl.
Ins. Assoc., 207 Ga. App. 133, 133-134 (427 SE2d 103) (1993) (grant of summary
judgment reversed, where the issues related in large part to proper construction of the
insurance policy at issue, yet insufficient information as to the language of the
insurance contract was included in the evidence of record). Accord Adana Mort.
7
Accord Pfeiffer v. Ga. DOT, 275 Ga. 827, 830 (3) (573 SE2d 389) (2002)
(reaffirming that “[w]hen the record fails to contain the facts supporting the grant of
summary judgment, the non-movant may argue this ground to the appellate court
regardless of whether the non-movant asserted an ‘objection to the prima facie
case’”).
9
Bankers v. Bankers Ins. Serv. Corp., 186 Ga. App. 76, 76-77 (366 SE2d 408) (1988).
For the foregoing reasons, the trial court’s grant of summary judgment based on its
determination that the exclusion was “readily apparent” was not authorized.
Judgment reversed. Reese, J., concurs and McMillian, J., concurs in judgment
only.*
* THIS OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF
APPEALS RULE 33.2(a).
10