Nationwide Prop. & Cas. Ins. Co. v. Renaissance Bliss, LLC
| Decision Date | 04 April 2019 |
| Docket Number | CIVIL ACTION FILE NO. 1:17-cv-3943-TCB |
| Citation | 396 F.Supp.3d 1287 |
| Parties | NATIONWIDE PROPERTY AND CASUALTY INSURANCE COMPANY and Nationwide Mutual Fire Insurance Company, Plaintiffs, v. RENAISSANCE BLISS, LLC; Renaissance Residential, LLC; City Walk Apartments, LLC ; Renaissance Retail, LLC ; and Cohen & Associates, LLC, Defendants. |
| Court | U.S. District Court — Northern District of Georgia |
Connor McGinnis Bateman, Seyfarth Shaw, LLP, Philip Wade Savrin, Jessica Christine Samford, Seth Freeman Kirby, Freeman Mathis & Gary, LLP, Atlanta, GA, for Plaintiffs.
Brent William Brougher, Joe P. Reynolds, Kilpatrick Townsend & Stockton, LLP, Atlanta, GA, for Defendants.
Nationwide is on your side. That is, unless you fail to timely report an occurrence that may result in a claim.
In this declaratory judgment action, Plaintiffs Nationwide Property and Casualty Insurance Company and Nationwide Mutual Fire Insurance Company seek a declaration that Defendants Renaissance Bliss, LLC; Renaissance Residential, LLC; City Walk Apartments, LLC; Renaissance Retail, LLC; and Cohen & Associates, LLC are not entitled to benefits under liability insurance policies Plaintiffs issued to Defendants.
The underlying claims were asserted against Defendants by Paris Evans after she was brutally assaulted on or near Defendants' premises in Atlanta on September 2, 2013. The premises consist of a 161-unit condominium building with sidewalk retail space.
The policies contain the following language: "You must see to it that we are notified as soon as practicable of an ‘occurrence’[, which "means an accident,"] which may result in a claim." [2-2] at 19, 23. Defendants did not notify Plaintiffs of the attack until more than twenty-one months after it happened. The issue in this case is whether this delay authorizes the two Plaintiff-insurers to deny coverage.
Plaintiffs argue that Defendants breached the notice provisions of the policies. Defendants argue that they did not breach the provisions because they were not reasonably aware that a claim would be brought against them.
Both policies at issue (primary and excess) named Renaissance Bliss, Renaissance Residential, Renaissance Retail, and Cohen as insureds. The primary policy identified the business as property owner/condo manager, and the only address listed is 171 Auburn Avenue NE Atlanta, GA, 30303. This is the address of the property described in the underlying lawsuit, and the attack occurred in the building's only parking garage. The excess policy incorporates the terms and conditions of the primary policy by reference. The policies contain Georgia-specific endorsements.
The primary policy states, "You must see to it that we are notified as soon as practicable of an ‘occurrence’[, which "means an accident,"] which may result in a claim." [2-2] at 19, 23. It further provides, "No person or organization has a right under this Coverage Part ... [t]o sue us on this Coverage Part unless all of its terms have been fully complied with." Id. at 20. The excess policy similarly states, "You must see to it that we and your underlying insurers ... are notified as soon as possible of any ‘occurrence’ which may result in a claim if the claim may involve this policy or any ‘underlying insurance’ ...." Id. at 65.
At the time of Evans's injuries, Renaissance Residential owned 140 of 161 condominium units on the property and Renaissance Retail had a ground lease for the retail units on the first floor. This was the only property Renaissance Residential or Renaissance Retail maintained.
Renaissance Bliss was a holding company for, and the single member of, Renaissance Residential and Renaissance Retail.
Cohen was the asset manager for Renaissance Bliss. Renaissance Bliss paid Cohen fees to conduct Renaissance Retail's operations through Cohen's employees. Cohen also managed the retail tenants on Renaissance Retail's behalf.
City Walk was formed in October 2013 (approximately a month after Evans was attacked) to take title to the condominium units that Renaissance Residential owned.
A separate entity, Renaissance Walk Condominium Association (separately insured and having no corporate affiliation with Defendants), owned, controlled, and maintained the common area (including security cameras) where the incident occurred. The association hired KPM International, LLC to monitor the cameras and provide concierge services. It also hired Heritage Property Management Services, Inc. to manage the services it provided.
Roni Braitanbaum was the chief operating officer of Cohen, and also the de facto COO of Renaissance Bliss, Renaissance Residential, and Renaissance Retail because none of those entities had employees. His title at Renaissance Residential and Renaissance Retail was asset manager. He was responsible for operating those entities.
Yvette Moore was, at the time of the incident, a regional manager for Cohen. The only property she managed in Georgia was the property on which Evans was attacked. She was responsible for reporting incidents or property issues to Braitanbaum. Roughly two months before Evans was attacked, Moore told the concierge and security company for the property that she should be notified of all incidents because ownership was being placed at a high risk of liability.
At the time of the incident, Evans was the property manager on site and was employed by Riverstone, a third-party management company contracted by Cohen. Before the incident, she worked closely with Moore.
On September 2, 2013, Evans was a victim of rape, battery, and assault while on the property. The attack occurred in a common staircase leading to a parking garage and exterior door in the condominium building with sidewalk retail space. The police and an ambulance were called, and Evans was taken to the hospital for her injuries.
The night of the attack, it was reported to Moore, who reported it to Braitanbaum, who reported it to Gidi Cohen, the owner of Defendant Cohen.
Braitanbaum flew to Atlanta from California that night or early the next morning because of the attack. He investigated, spoke to witnesses, observed where Evans stated the attack occurred, and collected video footage and computer data.
On September 6, Braitanbaum obtained the police report. It included Evans's statement that she was assaulted by an unknown male near a ground-level parking-deck door that was often left open. The report also indicated that apartment staff said the security camera near the area where the attack occurred was not functioning.
On September 9, Braitanbaum forwarded the police report to the insurance brokers for his companies' workers' compensation insurance. He did not forward the report to his general liability insurer, Nationwide. The brokers advised Braitanbaum that this seemed to be a workers' compensation claim for the management company, not Braitanbaum's companies, and that there was no reason for Braitanbaum's companies to get sued. Braitanbaum did not provide notice of the incident to Plaintiffs.
Over twenty-one months later, on June 12, 2015, Renaissance Residential, Cohen, and City Walk received correspondence from Evans's counsel demanding the disclosure of their liability insurance that would potentially cover claims arising from the assault. That same day, this correspondence and the underlying incident were reported to Plaintiffs for the first time.
On August 20, 2015, Evans filed a lawsuit in the State Court of Fulton County against Defendants, along with the association, Riverstone, Heritage, and KPM. She alleged that as of September 2013, Renaissance Bliss managed the property; Cohen owned, occupied, operated, and managed the property; and City Walk Apartments owned, occupied, operated, and managed the property and assumed duties and liabilities of its co-defendants. She alleged that those three defendants, along with Renaissance Residential and Renaissance Retail, were liable for her injuries because of their failure to keep the property in repair, failure to keep the property safe, and general negligence.
Plaintiffs appointed the law firm Hawkins Parnell Thackston & Young LLP to represent Renaissance Residential and City Walk (who were initially the only two Defendants in this action to be named as defendants in the underlying state-court action). At first, Plaintiffs provided a defense without reservation.
On December 18, Plaintiffs sent a letter to Renaissance Residential stating that they learned that Renaissance Residential "had knowledge of the incident the same day that it occurred," [39-14] at 2, and therefore that their continued defense would "be under reservation of [Plaintiffs'] rights to disclaim coverage," id. at 3. Renaissance Residential and City Walk responded by disputing Plaintiffs' assertion.
On April 28, 2017, Evans amended her complaint to add Cohen, Renaissance Bliss, and Renaissance Retail as defendants. Plaintiffs appointed Hawkins Parnell to represent them also. On May 25, Plaintiffs sent a letter to Michael Wilson, who acts as general counsel for Cohen, Renaissance Bliss, and Renaissance Residential, stating that Plaintiffs were providing a defense to these Defendants under a reservation of rights.1
On August 14, Defendants moved for summary judgment in the underlying case, making various arguments as to why they were not liable for Evans's injuries, and arguing (regarding a statute-of-limitations tolling provision) that several Defendants would have no reason to know that an action would be brought against them.
While the summary judgment motions were pending, a mediation was scheduled for Monday, October 9, 2017. On Friday, October 6, Plaintiffs filed this action, seeking a declaration that they did not owe coverage to any of the Defendants for damages in the underlying action.
At the mediation, the parties in the underlying suit reached a...
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