Grange Mutual Casualty Co. v. Slaughter, 050120 FED11, 18-13555

Docket Nº:18-13555
Opinion Judge:BRANCH, CIRCUIT JUDGE
Party Name:GRANGE MUTUAL CASUALTY COMPANY, Plaintiff-Appellee, v. TERRI SLAUGHTER, et al., Defendants, DAMITRA BAISDEN, FOUR SEASONS TRUCKING, INC., FOUR SEASONS TRUCKING & GRADING, INC., Defendants-Appellants.
Judge Panel:Before ED CARNES, Chief Judge, TJOFLAT, and BRANCH, Circuit Judges.
Case Date:May 01, 2020
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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GRANGE MUTUAL CASUALTY COMPANY, Plaintiff-Appellee,

v.

TERRI SLAUGHTER, et al., Defendants,

DAMITRA BAISDEN, FOUR SEASONS TRUCKING, INC., FOUR SEASONS TRUCKING & GRADING, INC., Defendants-Appellants.

No. 18-13555

United States Court of Appeals, Eleventh Circuit

May 1, 2020

Appeals from the United States District Court for the Northern District of Georgia No. 1:16-cv-03058-SCJ

Before ED CARNES, Chief Judge, TJOFLAT, and BRANCH, Circuit Judges.

BRANCH, CIRCUIT JUDGE

Driving a truck owned by Four Seasons Trucking ("FST"), Mark Lucas crossed the center line and collided with two vehicles-one right after the other. Grange Mutual Casualty Company ("Grange") insured the truck. But the truck was not listed on FST's policy. It was listed instead on the policy of Four Seasons Trucking & Grading ("T&G"), FST's sister company.

Grange sued Damitra Baisden (the driver of one of the impacted vehicles), FST, and T&G (collectively, "Defendants").1 Grange sought declaratory relief, asking the district court to declare its obligations under three insurance policies- two issued to FST and one issued to T&G. The district court said coverage existed under the T&G policy but not the FST policies. It also said the chain of events constituted a single accident. Baisden, FST, and T&G now appeal, challenging the coverage ruling. FST and T&G also challenge the number-of-accidents ruling. FST owned the truck in question, but the truck was listed on T&G's insurance policy. The parties agree that this case turns on whether there was a change in the truck's legal status, such that FST could have "borrowed" its own truck back from T&G. Defendants contend the necessary change in legal status came in the form of a written lease. But they failed to introduce at the summary judgment stage evidence showing that the lease gave exclusive use rights to T&G. In the particular circumstances of this case, their failure to introduce such evidence means the district court rightly held that no reasonable factfinder could have found in their favor. Although they introduced new evidence purporting to establish that the lease granted T&G exclusive use rights in their motion for reconsideration, the district court properly denied that motion, reasoning that the evidence could have been produced earlier. Finally, we agree with the district court that, under the policies and under Georgia law, the events here constituted a single accident. Accordingly, we affirm.

I. BACKGROUND

A. Underlying Facts

On October 15, 2015, Lucas, an FST employee acting in the course of his employment, was driving a dump truck owned by FST. The work did not involve T&G. Lucas collided with one vehicle, and he also collided with a vehicle being driven by Baisden. The drivers of both vehicles filed separate suits against FST and Grange in Georgia state court-one in the State Court of Fulton County and the other in the State Court of DeKalb County. According to Baisden's complaint, Lucas crossed the center line, collided with the car in front of her, and, immediately afterward, collided with her car.

While the two lawsuits were pending in state court, Grange brought a declaratory judgment action in the United States District Court for the Northern District of Georgia. Grange sought to understand its obligations under the insurance policies it issued to FST and T&G. As relevant here, Grange issued commercial automobile liability insurance policies to FST (the "FST policy") and T&G (the "T&G policy"). It also issued to FST a commercial umbrella policy, which applies only if the FST policy applies.

Although FST owned the truck Lucas was driving, the truck was not listed as a "Covered Auto[] You Own" on the FST policy. Instead, the truck was listed on T&G's policy. The question for the district court, then, was what Grange owed under any of these three policies.[2]

Certain evidence is particularly relevant to answering that question. Natalie Atkinson, president of FST and T&G, testified at her 2016 deposition that T&G never purchased or owned any trucks. She said FST owned the trucks and leased them to T&G. She said it "ha[d] been a few years" since FST had leased a truck to T&G. She further stated that when they "initially moved some of the trucks over, because they were owned by [FST]. . . [they] drew up a lease agreement to lease it to [T&G]." But she was "not sure where to find" the written lease agreement. When asked if the truck in question had been leased to T&G at the time of the accident, she responded, "I believe so." Nevertheless, she testified that Lucas was working only for FST, not for T&G, on the day of the accident. In other words, FST had allegedly borrowed its truck back from T&G, which had purportedly leased the truck.

B. The District Court's Orders

Because this appeal hinges on the parties' arguments regarding the district court's orders, we recount those orders in detail. We first examine the summary judgment order, and we then turn to the order denying reconsideration.

1. Liability Under the T&G Policy

The district court first concluded that Grange was liable under the T&G policy. Under that policy, the truck, which was specifically listed (incorrectly) as a "covered" auto T&G "own[s]," thus qualified as "Any 'Auto'." To the district court, it did not matter that the truck was erroneously listed as "owned" by T&G, as "[t]here is no serious dispute that the truck qualifies as 'any "auto."'" Moreover, although Lucas was working for FST at the time of the accident, he had been added to the T&G policy as an insured. The policy required Grange to "pay all sums an 'insured' legally must pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies, caused by an 'accident' and resulting from the ownership, maintenance or use of a covered 'auto.'" Thus, Grange was liable under the T&G policy.

Grange does not appeal the finding of its liability under the T&G policy. But we discuss it because Baisden points to what she contends is an internally inconsistent remark in the district court's summary judgment order. In rejecting Defendants' argument that T&G "owned" the truck simply because it was listed as such in T&G's insurance policy, the district court stated, "The evidence before the Court all indicates that the truck was being leased by T&G, and thus was not an 'owned' auto." Baisden argues that this statement contradicts the court's next holding.

2. Liability Under the FST Policy

The district court next determined Grange was not liable under the FST policy. That policy, unlike the T&G policy, does not provide liability coverage for "Any 'Auto'"; instead, it covers only "Specifically Described 'Autos'," "Hired 'Autos' Only," and "Nonowned 'Autos' Only." A "Specifically Described 'Auto[]'" is one listed in the declarations, and the truck was not listed there. Nor was the truck a "Nonowned 'Auto[]'." As discussed, FST owned the truck. So the question is whether the truck was a "Hired 'Auto[]'"-an auto FST "lease[d], hire[d], rent[ed] or borrow[ed]." As applicable here, did FST borrow the truck back from T&G?

The district court said it did not.3 It determined that, absent a "contractual relationship giving exclusive use rights to T&G," FST would have always been entitled to use of the truck-so it could not have "borrowed" it back. With respect to evidence indicating there was a lease, FST and T&G pointed to affidavits of Natalie Atkinson (president of FST and T&G) and Audley Atkinson (FST's supervisor of operations). Natalie's affidavit said that from "October 15, 2014 up through and including October 15, 2015," the truck "was under lease" from FST to T&G. Audley's affidavit said that he selected the truck as one of the vehicles to be leased from FST to T&G and that the truck "was under lease" from "October 15, 2014 up through and including October 15, 2015." Grange countered by pointing to Natalie's 2016 testimony that FST had not leased a vehicle in "a few years." Moreover, no written lease agreement was produced during discovery. The district court explained that Natalie's testimony was not fatal: a lease agreement can last for many years. But, the district court opined, such an agreement would have to be in writing to comply with Georgia's statute of frauds. Even assuming such a writing existed, the district court explained that the problem was that the affidavits provided only a legal conclusion: an enforceable lease existed. There was no evidence of lease payments, testimony regarding the length of the lease or its terms, or consideration T&G provided for the right to use the truck. Said the court: "A party cannot baldly assert that a contract existed any more than they could flatly assert that the opposing party was negligent or committed a tort."4

3. Number of Accidents

Finally, also at issue was the number of accidents that occurred under the T&G policy. The district court concluded the events constituted a single accident.5 Its conclusion had two bases. First, it pointed to State Auto Property and Casualty Co. v. Matty, 690 S.E.2d 614 (Ga. 2010), where the Georgia Supreme Court adopted the "cause" theory to define the word "accident" in insurance policies. See id. at 617-18. "Under this theory, the number of accidents is determined by the number of causes of the injuries, with the court asking if [t]here was but one...

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