Infinity Auto Ins. Co. v. Whigham
| Decision Date | 20 March 2015 |
| Docket Number | CV 113-214 |
| Court | U.S. District Court — Southern District of Georgia |
| Parties | INFINITY AUTO INSURANCE COMPANY, Plaintiff, v. JOSEPH WHIGHAM and ROBERT WHIGHAM, Defendants. |
Presently before the Court is Plaintiff Infinity Auto Insurance Company's ("Infinity") Motion for Summary Judgment. (Doc. 43.) On December 1, 2012, Defendant Joseph Whigham ("Joseph") sustained a serious injury to his leg when a vehicle collided with his motorcycle, which he was in the process of purchasing from a friend. This case arises out of Joseph's subsequent demand for uninsured motorist benefits pursuant to an automobile policy ("the Policy") issued by Infinity to his father, Defendant Robert Whigham ("Robert"). Infinity seeks to rescind the Policy on the ground that Robert procured it through misrepresentation when he failed to disclose that Joseph was a resident of his household. Infinity alternatively contends that it owes no coverage to Joseph because it received notice of the claim over five months after the accident occurred, well beyond the thirty-day window required by the Policy.For the reasons set forth herein, the Court GRANTS Infinity's Motion for Summary Judgment and ADJUDGES the Policy void ab initio.
In 2 009, during Joseph's senior year of high school, Joseph moved into his father's home on a permanent basis upon transfer of physical custody between his parents. (R. Whigham Dep., Doc. 56, at 28-29, 51; J. Whigham Dep., Doc. 44-2, at 14-15, 20.) At that time, Joseph moved all his belongings to his father's house and thereafter had no intention to move back in with his mother. (R. Whigham Dep. at 30; J. Whigham Dep. at 14-15, 19-21, 36, 44.) Nevertheless, for convenience, Joseph continued to use his mother's mailing address at 1178 Walton's Trail as his legal address since he "had been at his mom's house so long." (J. Whigham Dep. at 22, 3 5-36; see also R. Whigham Dep. at 31 ().)
In 2010, while living with his father, Joseph graduated from high school and volunteered for active duty with the National Guard. (J. Whigham Dep. at 15, 22-23.) In August 2 010, he moved to Fort Leonard Wood, Missouri for training. (Id. at 26.) Joseph returned to his father's home in December 2010 at the conclusion of training, and two weeks later he enrolled at Armstrong StateUniversity ("Armstrong") in Savannah, Georgia. (Id. at 25-26.) Joseph lived in a dorm at Armstrong during the semester, but would return to his father's home every other weekend and permanently returned during the summer of 2011 after breaking up with his girlfriend. (Id. at 29-30, 33.) Joseph would stay at other places — with an aunt, cousin, or friend — for a night or two, but according to his father, "he didn't live anywhere else." (R. Whigham Dep. at 34-35 (emphasis added).) During the time Joseph was away at training in Missouri and at Armstrong in school, Joseph lived at Robert's house, kept a bedroom there, and kept all his belongings there. (J. Whigham Dep. at 26, 28-32; R. Whigham Dep. at 34, 36.)
In the fall of 2 011, immediately before Robert applied for insurance with Infinity, Joseph enrolled at Georgia Southern University in Statesboro, Georgia and moved into an on-campus apartment with his cousin. (J. Whigham Dep. at 32-34.) Joseph returned to Augusta every weekend and stayed with his father. (Id. at 35, 37, 42-44; see also R. Whigham Dep. at 36-37.) Robert kept all of Joseph's belongings and maintained Joseph's bedroom. (J. Whigham Dep. at 45.) Joseph likewise spent the holiday break at his father's house. (Id. at 36.) According to Robert, Joseph was "doing his college thing" and described the living arrangement as one where Joseph was able to "come home if he wanted or if he had a weekend that he wanted to come home." (R. Whigham Dep. at 37-38.) Similarly, Joseph testified there were no other place he would stayovernight on a regular basis besides his father's house when he came to Augusta (J. Whigham Dep. at 46, 48) and that he "always lived in Augusta" but went back and forth to college (id. at 50).
In the spring of 2012, Joseph dropped out of his classes, but kept his Statesboro apartment and job. (Id. at 41-42.) Thus, throughout the spring and summer, Joseph would stay in Statesboro when he was working, but would go "home" to his father's house when he was not. (Id. at 41-43.) Joseph did not re-enroll at Georgia Southern in the fall of 2012, but was still "back and forth between [his] dad's and Statesboro." (Id. at 45.) On November 23, 2012, Joseph formally withdrew from school when his father determined that "he really wasn't in college" and moved back in with his father full-time. (Id. at 55-58; R. Whigham Dep. at 40.) Joseph moved some of his belongings from Statesboro to Robert's house prior to that date, but by November 23, 2012 he moved "all the way back in." (J. Whigham Dep. at 58.) Eight days later, a motorist collided with Joseph's motorcycle as he returned to his father's home after stopping by to see his mother. (Id. at 51-53, 60.) When Joseph left the hospital after a two-week stay, he went to his father's house. (Id. at 65.) Once he recovered from his injuries, Joseph enrolled in truck driving school in Cedar Rapids, Iowa. (Id. at 7-8.) Upon graduation, he became an over the road or long-haul driver and thus returned to Augusta only occasionally. (Id.; R. Whigham Dep. at 91-92.)
Throughout the two years that he spent in college, Joseph used money from the military, various jobs, and financial aid to pay his own way; Robert did not financially support Joseph, but rather occasionally sent him off with a bag of groceries or extra money for food. (R. Whigham Dep. at 37, 39; J. Whigham Dep. at 31.) Joseph purchased and insured his own transportation. (J. Whigham Dep. at 39, 39, 41.) Accordingly, Robert never allowed Joseph to drive his vehicles. (Id. at 69; R. Whigham Dep. at 46-47, 55.)
Agent Melissa Dees of the Donald H. Bailie Insurance Agency ("the Bailie Agency") contacted Robert in August 2011 to requote his auto insurance, as the Bailie Agency had been unable to place Robert's policy the year prior due to his driving record. (Dees Dep., Doc. 50-2, at 37-38.) She obtained quotes from several companies and reported the rates to Robert on August 19, 2011 via telephone. (Id. at 40.) On September 12, 2011, Robert came to the Bailie Agency offices and formally applied for automobile insurance with Infinity. (Id. at 12, 41; R. Whigham Dep. at 43.) He sought to insure three cars and identified himself as the only driver and only household resident. (Norman Aff., Doc. 43-2, Ex. A ("Auto Application"), at 1; Dees Dep. at 18, 36-37, 39-40, 47-48.)
Specifically, Infinity's application asked for the identity of "[a]ll persons age 14 and older, LICENSED OR NOT, who reside with the applicant, and any other drivers of the vehicle(s) on thisapplication." (Id.) Robert also executed a "Fraud Warning" in conjunction with his application. (Id. at 4.) On this document, Robert certified:
I have listed on this application all persons age 14 or older, licensed or not, who reside with me and all other drivers who may operate my auto(s) on a REGULAR or OCCASIONAL basis. This includes children away from home or away at school. I understand it is my obligation to report to Infinity any change in driving status for any person currently listed, added on my policy, residing in my household, or who operates my auto(s).
(Id. (emphasis added).)
Ms. Dees walked through the entire application with Robert, as is her practice, and Robert had the opportunity to review the completed application before signing it. (R. Whigham Dep. at 68-69; Dees Dep. at 46-48.) Robert testified, however, that he did not review the application before he signed it. (R. Whigham Dep. at 68-69.) Instead, he merely signed where Ms. Dees pointed and wrote a check for the premium. (Id.)
Ms. Dees testified that she was not notified at any time prior to June 2013 that Joseph was a resident of his father's household. (Dees Dep. at 50.) Although Robert applied for life insurance through the Baillie Agency around the same time that he applied for the instant automobile policy, he merely identified Joseph as a contingent beneficiary and gave 1178 Walton's Trial — the mother's address — as Joseph's address. (Id. at 12-13, 17, 42-45.) She further testified that it was in her financial interest to identifyJoseph on the Policy application, as the additional premiums would have resulted in an increased commission. (Id. at 49-50.)
On the other hand, Robert testified that he had a lengthy conversation with Ms. Dees about his son when selecting coverage options. (See R. Whigham Dep. at 53-54; 59-63; 76-77.) Specifically, when Ms. Dees asked whether he had any "children living at home . . . or something to that effect," Robert purportedly told Ms. Dees, "I have a son, he lived with me, he's off in the military, off in college, and doesn't drive my vehicles." (Id. at 60, 63.) Although Robert couldn't remember "getting into details" with Ms. Dees about Joseph's living arrangements, he recalled informing her that Joseph "goes to college and comes home." (Id. at 61.) With this information, Ms. Dees purportedly told Robert that Joseph did not need to be listed on the policy, but warned him that if Joseph did drive Robert's vehicles, Joseph would not be covered. (Id. at 60, 61, 63, 76, 77.)
Relying on the information in Robert's application, infinity issued Policy # 110-45711-3536-001 to Robert on September 15, 2011, which included $100,000 per person uninsured motorist coverage. (Norman Aff. ¶ 6.) On September 30, 2011, Debora Linneman, an employee of URI Information Services ("URI"), conducted...
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