Debord v. Proples Ben. Life Ins. Co.

• Decision Date: 10 June 2008
• Docket Number: Civil Action No. 1:06-cv-2884-TCB.
• Parties: Charles DeBORD, Jr., Plaintiff, v. PEOPLES BENEFIT LIFE INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Georgia

565 F.Supp.2d 1350

Charles DeBORD, Jr., Plaintiff, v. PEOPLES BENEFIT LIFE INSURANCE COMPANY, Defendant.

Civil Action No. 1:06-cv-2884-TCB.

United States District Court, N.D. Georgia, Atlanta Division.

June 10, 2008.

COPYRIGHT MATERIAL OMITTED

Allen L. Broughton, Broughton & Fernandez, Brian C. McCarthy, Law Office of Brian C. McCarthy, Roswell, GA, James F. Imbriale, Hartman-Imbriale, LLP, Woodstock, GA, for Plaintiff.

H. Sanders Carter, Jr., Michael Patrick Johnson, Smith Moore, LLP, Lisa R. Richardson, Mozley, Finlayson & Loggins LLP, Atlanta, GA, for Defendant.

ORDER

TIMOTHY C. BATTEN, SR., District Judge.

I. Background

Charles DeBord, Sr. passed away on November 29, 2002. Cherokee County police officers found him in the driver's seat of his car with his seatbelt fastened and no visible signs of trauma. His vehicle was on the side of a highway, on a downward-sloped embankment. It had no significant damage, and there was no evidence that it had collided with another vehicle or any stationary object other than a small silt fence that paralleled the highway.

On the shoulder of the road, near the vehicle, the investigating officer observed the body of a small deer that was partially covered in frost and did not appear to have recently died. The officer observed blood and short hair, like that of the deer, on the hood of the vehicle, concentrated near the windshield. He also found an area of blood and short hair approximately a quarter of a mile north of the vehicle. The deer was taken to an animal hospital, where it was determined that it had been hit by a car.

The medical examiner, Geoffrey Smith, M.D., performed an autopsy on Mr. DeBord's body and found only superficial scratches and bruises that were not sufficient to cause death. The autopsy did not reveal any traumatic injuries that could have caused or contributed to Mr. DeBord's death. Though the autopsy also revealed that Mr. DeBord had a swollen brain and enlarged heart, Dr. Smith determined these were nonspecific findings and concluded that Mr. DeBord died from natural causes.

At the time of his death, Mr. DeBord had a death benefits policy with Defendant Peoples Benefit Life Insurance Company. The policy provided that accidental death benefits would be paid only if the insured died as the result of a "bodily injury caused by an accident, directly and independently of all other causes." The policy also required that a written notice of claim be given "within 30 days after the insured's death or as soon as possible" and that written proof of loss "be provided within 90 days after the date of loss" but "[i]f it is not reasonably possible to furnish the necessary proof within 90 days ... proof of loss must be given [unless not legally able] no more than 1 year from the time the loss occurred."

Plaintiff Charles DeBord, Jr. is the sole beneficiary of the policy. He first notified Peoples Benefit of his claim by letter dated January 28, 2003, two months after his father's death. In the following months, he sent Peoples Benefit copies of the death certificate, preliminary police report, and toxicology report—but not the completed claim form—and demanded payment of the accidental death benefits.

Between August 26 and December 1, 2003, Peoples Benefit requested on three separate occasions that DeBord complete the required claim form, which included an authorization allowing Peoples Benefit to obtain medical records of the deceased from third parties. Peoples Benefit informed DeBord that the claim evaluation could not be completed until the form was received. DeBord did not return the completed claim form and authorization until September 22, 2005, almost thirty-four months after his father's death.

On November 28, 2006, DeBord filed this action against Peoples Benefit for failure to pay the accidental death benefits. Peoples Benefit now moves for summary judgment [26], contending that (1) Debord failed to submit timely notice of the claim and proof of loss, and (2) there is no evidence that its insured died from a "bodily injury caused by an accident, directly and independently of all other causes."

II. Analysis

A. Summary Judgment Standard

Summary judgment is proper when no genuine issue as to any material fact is present, and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The movant carries the initial burden and must show that there is "an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "Only when that burden has been met does the burden shift to the non-moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). The nonmovant is then required to "go beyond the pleadings" and present competent evidence in the form of affidavits, depositions, admissions and the like, designating "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. 2548. "The mere existence of a scintilla of evidence" supporting the nonmovant's case is insufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Resolving all doubts in favor of the nonmoving party, the Court must determine "whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Id.

B. Plaintiff's Response to Defendant's Statement of Material Facts

As a preliminary matter, the Court must address DeBord's response in opposition to Peoples Benefit's statement of material undisputed facts in support of its motion for summary judgment.

Under the Local Rules of this Court, a party's response, to an opposing party's statement of material facts "shall contain individually numbered, concise, non-argumentative responses according to each of the movant's numbered undisputed material facts." LR 56.1B.(2)(a)(1), NDGa. Most importantly, "[t]his Court will deem each of the movant's facts as admitted unless the respondent ... points out that the movant's citation does not support the movant's fact...." LR 56.1B.(2)(a)(2), NDGa.

In each of his responses, DeBord either admits the fact as stated by Peoples Benefit or states that it is denied and asserts that the citation does not support the fact. Although DeBord has nominally complied with the local rules by indicating that the movant's citations fail to support the movant's facts, see LR 56.1 B.(2)(a)(2), NDGa, the Court finds that there is no merit to DeBord's assertions; the stated facts are supported by the citations Peoples Benefit lists.

C. Timeliness of Notice of Claim and Proof of Loss Submission

Peoples Benefit asserts that DeBord's claim to the accidental death benefits fails as a matter of law because Peoples Benefit did not receive timely notice of the claim and proof of loss.

Under Georgia law, insurance policy provisions that require notice of death and written proof of loss be submitted within a certain specified time before a beneficiary may recover are valid condition precedents to the enforcement of the policy. Equitable Life Assurance Soc'y of U.S. v. Hollingsworth, 103 Ga.App. 505, 505, 119 S.E.2d 725, 726 (1961); see also Metro. Life Ins. Co. v. Jackson, 79 Ga.App. 263, 265-66, 53 S.E.2d 378, 380 (1949) (finding that notice of claim and written proof-of-loss provisions are valid and enforceable); Richmond v. Farm Bureau Mut. Ins. Co., 140 Ga.App. 215, 221, 231 S.E.2d 245, 250 (1976) (finding that notice provisions expressly made condition precedents to an insurer's liability "are valid and must be complied with, absent a showing of justification").

When a plaintiff's recovery on an insurance policy "depends on a condition precedent, to be performed by him, he must allege, and prove the performance of such condition precedent, or allege a sufficient legal excuse for its nonperformance." Wolverine Ins. Co. v. Sorrough, 122 Ga. App. 556, 560, 177 S.E.2d 819, 822 (1970) (quoting Griswold v. Scott, 13 Ga. 210 (1853)); see Richmond, 140 Ga.App. at 221, 231 S.E.2d at 250 ('Where an insured has not demonstrated justification for failure to give notice according to the terms of the policy, and where the insurer has not waived compliance with the terms or any objections to the insured's failure, then the insurer is not obligated to provide either a defense or coverage.").

In this case, DeBord has admitted that he did not send Peoples Benefit written notice of his claim until two months after his father's death, thirty days after the policy's time requirement. DeBord argues that his submission was still timely, however, because he sent it "as soon as possible." He further asserts that the issue of whether he submitted notice "as soon as possible" is a question of fact for a jury to determine.

It is true that time limitations in an insurance policy requiring notice "as soon as possible" are generally "subject to a factual determination." Norfolk & Dedham Mut. Fire Ins. Co. v. Cumbaa, 128 Ga.App. 196, 198-99, 196 S.E.2d 167, 170 (1973). However, "under all the facts and circumstances of a particular case it may be found that an insured's delay in giving notice of an accident to his insurer was unjustified ... [and] the court may rule on the question as a matter of law." Richmond, 140 Ga.App. at 220-21, 231 S.E.2d at 249.

Before a question of fact can be presented to a jury about whether notice was provided as soon as possible, the beneficiary must come forward with an excuse or explanation for not complying with the provision sooner. See Norfolk, 128 Ga. App. at 198-99, 196 S.E.2d at 169-70 ("The questions of the sufficiency of the excuse offered, and the diligence of the beneficiary in giving the notice after the removal of the disability, are generally questions of fact, to be determined by [a] jury, according to the nature and...