Opinion
1:21-CV-00786-ELR
2022-09-19
Lonnie LOVE, Plaintiff, v. STATE FARM FLORIDA INSURANCE COMPANY, Defendant.
James B. Hernan, The Hernan Law Firm PC, Roswell, GA, for Plaintiff. Kristen M. Vigilant, Morris, Manning & Martin, LLP, Atlanta, GA, Rebecca Elizabeth Strickland, Savannah P. Acheson, Swift Currie McGhee & Hiers LLP, Atlanta, GA, for Defendant.
James B. Hernan, The Hernan Law Firm PC, Roswell, GA, for Plaintiff. Kristen M. Vigilant, Morris, Manning & Martin, LLP, Atlanta, GA, Rebecca Elizabeth Strickland, Savannah P. Acheson, Swift Currie McGhee & Hiers LLP, Atlanta, GA, for Defendant.
ORDER
Eleanor L. Ross, United States District Judge
Presently before the Court are Defendant State Farm Florida Insurance Company's "Motion for Summary Judgment" [Doc. 21] and "Motion to Compel Discovery." [Doc. 40]. The Court sets forth its reasoning and conclusions below. I. Factual Background
The facts discussed herein are undisputed unless noted otherwise. Attached to its summary judgment motion, Defendant filed a "Statement of Undisputed Material Facts" ("Def.'s SOMF") [Doc. 21-2]. Plaintiff timely submitted a "Response to Defendant's . . . Statement of Undisputed Material Facts" ("Pl.'s Resp. to Def.'s SOMF") [Doc. 24-1]. Plaintiff also filed a "Statement of Additional Material and/or Disputed Facts," however, the Court disregards this document because it contains no citations to evidence. [See Doc. 24-2]; see also LR 56.1(B)(1), NDGa.; id. 56.1(B)(2)(b).
This case arises from a claim of insurance Plaintiff Lonnie Love filed related to the theft of certain jewelry and Defendant State Farm Florida Insurance Company's purported mishandling of that claim. See generally Compl. [Doc. 1-1 at 8-16]. In June 2020, Defendant issued a personal articles insurance policy to Plaintiff: policy number 59-CK-S034-0 (the "Policy"). See Def.'s SOMF ¶¶ 1, 8. The Policy provided Plaintiff with up to $137,200 in coverage "for specific, scheduled items subject to [certain] . . . terms and conditions" for the period of June 15, 2020, to June 15, 2021. See id. ¶ 1; [see also Doc. 7 at 24]. By August 2020, the Policy covered "a Rolex Oyster Perpetual Datejust II watch (the 'Rolex Watch')," "a diamond ring with a single 5.05 [carat] diamond and additional diamonds (the 'Diamond Ring')," and "a diamond band ring with approximately 4.50 [carat] diamonds" (the "Band Ring," collectively with the Rolex Watch and the Diamond Ring, the "Jewelry"). Def.'s SOMF ¶¶ 2, 5, 9.
Where Plaintiff does not dispute a fact, purports to dispute a fact but refers the Court to no evidence supporting that dispute, or disputes only immaterial portions of a fact, the Court cites only Defendant's SOMF and not Plaintiff's response.
The portion of the Policy labeled "CONDITIONS" provides in relevant part:
8. Examination Under Oath. You agree:
a. to be examined under oath and subscribe to the same as often as we reasonably require;
. . .
d. to produce such records as we may need to verify the claim and its amount, and to permit copies of such records to be made if needed.
9. Suit Against Us. No action will be brought unless:
See id. ¶¶ 13-14; [see also Doc. 7 at 32].a. there has been compliance with the policy provisions; and
b. the loss has become payable as specified in the CONDITION entitled "Loss Payment."
The Court bases its recitation of the events of September 6, 2020, on its own independent review of the transcript of Plaintiff's examination under oath, Defendant's SOMF, and Plaintiff's response to Defendant's SOMF.
On September 6, 2020, Plaintiff visited The Cheetah nightclub (or "the Club") in Atlanta, Georgia. See Def.'s SOMF ¶¶ 15, 18-19. During his visit to The Cheetah, Plaintiff placed the Jewelry in a "Louis Vuitton 'pouch,' " which he would "tie around [his] waist or . . . around [his] shoulder." See id. ¶¶ 18-19; Examination Under Oath of Lonnie Dale Love ("Love Exam.") at 43:16-18 [Doc. 20]. Plaintiff took the pouch with him into the Club and still had it upon exiting the Club. See Def.'s SOMF ¶¶ 18-19.
Plaintiff exited The Cheetah and waited with a friend while a valet pulled Plaintiff's "2020 Bentley Flying Spur" vehicle up to the Club's entrance. See id. ¶¶ 15, 19; see also Love Exam. at 25:21-26:5. While waiting for the valet to retrieve Plaintiff's vehicle, Plaintiff and his friend began talking to a woman they encountered outside the Club. See Love Exam. at 26:6-27:20. During this conversation, "somebody was . . . trying to get out of the parking lot in an SUV," but the exit to The Cheetah's parking lot was blocked. See id. at 26:6-11; see also Def.'s SOMF ¶ 20. The SUV's inability to exit the parking lot led someone, either the occupants of the SUV or individuals in another vehicle, to "honk the[ir] hor[n], and just stay[ ] on the horn[,]" which in turn led The Cheetah's "valet and . . . security people [to] start[ ] getting crazy." Love Exam. at 26:6-23. In an attempt to help settle this commotion, Plaintiff asked the person who was blocking the exit to The Cheetah's parking lot to "move so traffic could start flowing." See id. at 27:17-28:18. But after Plaintiff's remarks, the driver of the SUV did not exit the parking lot; instead, that driver "pulled over . . . right in front of the door of The Cheetah and jumped out with a gun[,]" either by himself or with two (2) other armed individuals. Id. at 28:12-20, 30:21-31:2.
Plaintiff and his friend reacted by getting into Plaintiff's vehicle, which the valet had since pulled around. See id. at 28:15-29:1, 29:23-30:12. Upon entering his vehicle, Plaintiff placed the pouch containing the Jewelry "on the side of the driver's seat." See Def.'s SOMF ¶ 19. Shortly thereafter, the woman with whom Plaintiff and his friend were speaking earlier "walked over to" Plaintiff's vehicle and "said hey, you might want to get out of your car because they got a lot of guns over there." See Love Exam. at 28:22-29:1; see also Def.'s SOMF ¶ 20. Because the exit to the parking lot was blocked and Plaintiff's vehicle was surrounded by other vehicles, Plaintiff and his friend exited Plaintiff's vehicle and took cover behind other cars. See Love Exam. at 28:21-29:13, 32:6-16; see also Def.'s SOMF ¶ 22. When Plaintiff did so, he left the pouch containing the Jewelry in his vehicle. See Def.'s SOMF ¶ 24. Though the armed individuals from the SUV "had their guns out with[out firing] . . . for about five minutes[,]" that group "started firing their guns" shortly after Plaintiff exited his vehicle. See Love Exam. at 32:9-22; see also Def.'s SOMF ¶ 20. One of the armed individuals then ran over to Plaintiff's vehicle and drove away in it. See Love Exam. at 32:23-33:4.
"Plaintiff's vehicle was [later] recovered and taken to a tow yard." Def.'s SOMF ¶ 29. "When Plaintiff examined his vehicle at the tow yard, he determined that certain items were taken out of" it, including a "CPAP machine and the Jewelry." Id. ¶ 30.
B. The Claim and Subsequent Coverage Correspondence
"On or about September 18, 2020, on behalf of Plaintiff . . . , Plaintiff's counsel, Jamie Hernan, submitted a claim under the Policy related to [the] alleged theft" described above (the "Claim"). Id. ¶ 32. On September 24, 2022, Plaintiff submitted a "Sworn Statement in Proof of Loss" in support of the Claim. See id. ¶ 39; see also Love Exam. Ex. 2.
On October 9, 2020, Defendant sent Plaintiff a reservation of rights letter that "advise[d]" Plaintiff "that there is a question as to whether" Defendant was obligated to pay the Claim because:
[1] [a] question exists as to whether there has been concealment and material misrepresentation made by [Plaintiff] following the loss[;][See Doc. 21-2 at 41].
[2] [t]here is a question as to whether the origin and cause of the loss was accidental in nature[; and]
[3] [Plaintiff] has failed to comply with the conditions of the policy requiring the assistance and cooperation in providing all records, receipts, and invoices, either certified copies or permitting us to make copies.
On November 2, 2020, Defendant, by a letter from its counsel, requested nine (9) categories of documents from Plaintiff, including financial records and other documents related to the Jewelry and the Claim; tax, bank, credit card, and phone records from the time around Plaintiff's purchase of the Jewelry and filing of the Claim; records reflecting Plaintiff's cell phone activity on September 6 and 7, 2020; documents that evidenced Plaintiff's then-"current residence"; and "a copy of the receipt for the Louis Vuitton bag that contained [the J]ewelry on September 6, 2020." See Love Exam. Ex. 3; see also Def.'s SOMF ¶ 41. Defendant requested that Plaintiff provide these documents prior to his Policy-required examination under oath, which was set to take place three (3) days later. Love Exam. Ex. 3.
Plaintiff sat for his examination under oath on November 5, 2020. Def.'s SOMF ¶ 41. During that examination and by a letter from his counsel dated November 10, 2020, Plaintiff asserted that the documents Defendant requested on November 2 were "either irrelevant, already in the possession of [Defendant,] or unnecessary for the processing of the Claim." [See Doc. 21-2 at 49-50]; see also, e.g., Love Exam. at 89:11-93:1.
On December 1, 2020, Defendant's counsel again wrote to Plaintiff (and his attorney) to request documents and information. [See Doc. 21-2 at 52-54]; Def.'s SOMF ¶ 43. It is unclear whether the requests made in Defendant's December 1, 2020 letter superseded or supplemented those made in its November 2, 2020 letter, but the two (2) sets of requests in the letters are different (though somewhat overlapping). [Compare Doc. 21-2 at 52-54] with, Love Exam. Ex. 3; [see also Doc. 21-2 at 56] (Plaintiff's counsel describing Defendant's "letter dated December 1, 2020" as "clarif[ying]" the document request[s Defendant] sent on November 2, 2020"). By its December 1, 2020 letter, Defendant requested financial records and other documents related to the Jewelry and the Claim, bank records from the time around Plaintiff's purchase of the Jewelry, bank records that "reflect all transaction detail for the period of 2 months before the purchase of" the Jewelry, the full name and contact information of the man from whom Plaintiff purchased the Band Ring, "a copy of the police inventory for the release of" Plaintiff's vehicle from the tow lot where it was stored after it was recovered, and information related to a flight Plaintiff took to Georgia before the theft of the Jewelry occurred. [See Doc. 21-2 at 52-54]; see also Def.'s SOMF ¶ 43-44. Defendant's December 1, 2020 letter also reminded Plaintiff to submit the errata form associated with his examination under oath. [See Doc. 21-2 at 54].
Plaintiff's counsel replied to Defendant the next day. [See id. at 52-54]; see also Def.'s SOMF ¶ 46. In his reply, Plaintiff's counsel stated that (1) Plaintiff provided information sufficient "to establish the appraised value of each piece of" the Jewelry at the time the Policy was issued; (2) "document[s] meant to establish the purchase price of the" Jewelry were irrelevant because Defendant indicated that it would pay Plaintiff for the "current appraised value" of the Jewelry as opposed to its "purchase price[;]" and (3) Plaintiff was "checking on the [requested] inventory for the vehicle[,]" though that "inventory obviously would not include the . . . [J]ewelry which w[as] taken from [Plaintiff's] vehicle by the" thief who stole the vehicle. [See Doc. 21-2 at 56-57].
On December 18, 2020, Defendant again wrote to Plaintiff and his counsel. [See id. at 59-60]; see also Def.'s SOMF ¶ 47. By its December 18, 2020 letter, Defendant again requested that Plaintiff provide Defendant with the documents requested in Defendant's December 1, 2020 letter and complete the errata form for Plaintiff's examination under oath. [See Doc. 21-2 at 56-57].
Plaintiff has provided Defendant with police reports related to the theft of his vehicle and the Jewelry. [See id. at 28-39, 44-47]. Plaintiff also appears to have submitted documents that were responsive to some of the requests in Defendant's December 1, 2020 letter when he first applied for the Policy. [See id. at 56]. But otherwise, Plaintiff has not submitted any of the documents that Defendant requested "or sign[ed] the errata sheet to his examination under oath." See Def.'s SOMF ¶ 49. Though Plaintiff does not appear to deny that he has failed to produce the majority of the documents Defendant requested,
Plaintiff denies that he failed to abide by the terms and conditions of the Policy in any material way, or that Plaintiff failed to submit sufficient documentation for Defendant to verify his [C]laim and determine its value. Rather, Plaintiff asserts that Defendant constructively denied the Claim by refusing to process the Claim in good faith and had no intention, from the outset of the Claim, of making payment on the Claim despite the Loss being compensable pursuant to the Policy.See Pl.'s Resp. to Def.'s SOMF ¶ 49.
II. Procedural History
On December 23, 2020, Plaintiff filed this action in the State Court of Fulton County, Georgia. See generally Compl. The Complaint does not set forth numbered Counts but appears to assert claims for: (1) breach of contract, (2) "unfair acts or practices in the business of insurance as set forth in O.C.G.A. § 33-6-4," (3) bad faith denial of an insurance claim pursuant to O.C.G.A. § 33-4-6, (4) attorney's fees pursuant to O.C.G.A. § 13-6-11, and (5) punitive damages. See id. ¶¶ 66-72.
On February 24, 2021, Defendant timely removed Plaintiff's action to this Court. See Notice of Removal [Doc. 1]. Discovery opened on March 26, 2021, and, pursuant to this district's Local Rules, was originally set to close on July 26, 2021. See LR 26.2(a), NDGa.; [see also Doc. 1-4 at 2]. By Orders dated June 25, 2021, and December 28, 2021, the Court extended the close of the discovery period until February 28, 2022. [See Docs. 18, 31]. Well before the close of discovery, on July 21, 2022, Defendant filed its "Motion for Summary Judgment," in which it asks the Court to enter judgment in its favor "on all the claims against it based upon Plaintiff's . . . failure to satisfy the conditions of the [P]olicy prior to filing suit." [See Doc. 21].
By a motion to remand dated March 25, 2021, Plaintiff challenged Defendant's removal as untimely. [See Doc. 6]. On March 31, 2022, the Court found Defendant's removal timely and denied Plaintiff's motion. [See Doc. 39].
Shortly before the close of discovery, on February 18, 2022, the Parties submitted a "Consolidated/Joint Discovery Statement" pursuant to the undersigned's Instructions for Civil Cases. [See Doc. 38]. The consolidated/joint statement advised the Court of discovery disputes between the Parties related to Plaintiff's refusal to: (1) produce certain categories of documents requested by Defendant, (2) identify certain "critical witnesses, including individuals with knowledge of the Jewelry," and (3) provide a privilege log pursuant to Federal Rule of Civil Procedure 26(b)(5)(A). [See generally id.] In response to the consolidated/joint statement, on February 23, 2022, the Court granted Defendant leave to file a motion to compel by March 16, 2022. [See Doc. 39]. The Court also stayed this action as to all Parties. [See id.] Defendant timely filed its motion to compel on March 16, 2022. [See Doc. 40].
Plaintiff opposes both Defendant's "Motion for Summary Judgment" and its "Motion to Compel Discovery." [See Docs. 24, 42]. Having been fully briefed, both motions are now ripe for the Court's resolution. [See Docs. 21-1, 24, 25, 40, 42, 44]. The Court begins its analysis of Defendant's summary judgment motion by setting forth the applicable legal standard.
III. Legal Standard
The Court may grant summary judgment only if the record shows "that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A factual dispute is genuine if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is material if resolving the factual issue might change the suit's outcome pursuant to the governing law. See id.
When ruling on a motion for summary judgment, the Court must view all evidence in the record in the light most favorable to the non-moving party and resolve all factual disputes in the non-moving party's favor. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The moving party need not positively disprove the opponent's case; rather, the moving party must show the lack of evidentiary support for the non-moving party's position. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
If the moving party meets this initial burden, the non-moving party must then present competent evidence beyond the pleadings to show that there is a genuine issue for trial in order to survive summary judgment. See id. at 324-26, 106 S.Ct. 2548. The essential question is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505. "The mere existence of a scintilla of evidence" supporting the non-movant's case is insufficient to defeat a motion for summary judgment. Id. at 252, 106 S.Ct. 2505. There must be evidence on which the jury could reasonably find for the non-moving party. See id.
IV. Discussion
Having set forth the relevant legal standard, the Court now applies it to Defendant's summary judgment motion. The Court analyzes Plaintiff's breach of contract claim and claims pursuant to O.C.G.A. §§ 33-4-6 and 33-6-4 individually before discussing his demands for attorney's fees pursuant to O.C.G.A. § 13-6-11 and punitive damages together.
A. Breach of Contract
"The elements for a breach of contract claim in Georgia are the (1) breach and the (2) resultant damages (3) to the party who has the right to complain about the contract being broken." McAlister v. Clifton, 313 Ga. 737, 873 S.E.2d 178, 183 (2022). Defendant argues that Plaintiff cannot establish there has been a breach of the Policy "because [Plaintiff] failed to comply with his duties under the Policy before filing suit." [See Doc. 21-1 at 11]. Specifically, Defendant contends that Plaintiff has not complied with a provision of the Policy that requires the insured "to produce such records as [Defendant] may need to verify the [C]laim and its amount, and to permit copies of such records to be made if needed." [See id. at 10-17] (quoting [Doc. 7 at 32]). Defendant asserts that the documents it requested are relevant and material to the Claim because Defendant suspects that the Claim may be fraudulent. [See id. at 13-15]. Without any citation to authority or evidence, Plaintiff argues that (1) Defendant's suspicion of fraud is unwarranted and (2) "Defendant's document requests were unreasonable" such that Plaintiff was not required to respond to them pursuant to the Policy. [See Doc. 24 at 18]. Plaintiff asserts that Defendant's document requests were unreasonable because, in Plaintiff's view, he "provided sufficient documents for Defendant to verify the [C]laim and determine its value[.]" [See id. at 17-18]. Accordingly, Plaintiff contends that Defendant's "document requests were made to burden, harass[,] and intimidate Plaintiff with the hopes that he would abandon the Claim." [See id. at 18].
Defendant appears to assume that Georgia law applies to the Policy's interpretation and therefore any breach of contract claim based upon it. [See Doc. at 3, 12, 16]. Because the Policy was delivered in Georgia, the Court agrees that it is governed by Georgia law. See Bradham v. Randolph Trucking Co., 775 F. Supp. 395, 397 (M.D. Ga. 1991) ("[U]nder Georgia choice-of-law rules the interpretation of insurance contracts is governed by the law of the place of making. Insurance contracts are made at the place they are delivered."); [see also Doc. 7 at 24] (indicating that the Policy was delivered in Georgia).
As an initial matter, provisions like that in the Policy requiring the production of documents that an insurer needs to verify a claim are enforceable, and an insured's failure to comply with such a provision constitutes a breach of contract that precludes his recovery under the policy. See Hines v. State Farm Fire & Cas. Co., 815 F.2d 648, 651 (11th Cir. 1987); Lucas v. State Farm Fire & Cas. Co., 864 F. Supp. 2d 1346, 1353 (M.D. Ga. 2012); Youhoing v. Travelers Prop. Cas. Ins. Co., Civil Action No. 1:09-CV-1785-CAP, 2010 WL 11500940, at *3 (N.D. Ga. Dec. 9, 2010); Farmer v. Allstate Ins. Co., 396 F. Supp. 2d 1379, 1382 (N.D. Ga. 2005); Halcome v. Cincinnati Ins. Co., 254 Ga. 742, 334 S.E.2d 155, 157 (1985). Plaintiff appears to contend that he complied with the provision at issue by producing some documents of his choosing that he believes are "sufficient . . . for Defendant to verify the [C]laim and determine its value[.]" [See Doc. 24 at 17-18]. However, this argument is misplaced. The Policy provides that Defendant—not Plaintiff—is the arbiter of what documentation is sufficient to "verify the [C]laim and its amount." [See Doc. 7 at 32] (emphasis in parenthetical added) ("You agree . . . to produce such records as we may need to verify the claim and its amount, and to permit copies of such records to be made if needed."). This reading of the Policy is consonant with the Georgia state and federal cases that have held that provisions like the one at issue here require an insured to produce "any material information called for under . . . the policy." Halcome, 334 S.E.2d at 157 (emphasis in original); accord, e.g., Youhoing, 2010 WL 11500940, at *2-3 (applying Halcome to policy language like that at issue here); see also Pittman v. State Farm Fire & Cas. Co., 868 F. Supp. 2d 1335, 1347 (M.D. Ala. 2012) (describing the exact policy language at issue here as requiring an "insured[ ] to provide documents reasonably requested by the insurer").
Having found that the Policy requires Plaintiff to provide any material information Defendant might need to verify the Claim and its amount, the next question for the Court to answer is whether the documents Defendant requested in this case are material to Defendant's ability to verify the Claim and its amount. [See Doc. 24 at 18] (framing the issue presented by Defendant's summary judgment motion as whether the documents Defendant requested are "required to be submitted pursuant to the Policy provisions"). "With respect to insurance claims, Georgia courts take 'a broad view of materiality.' " S. Realty Mgmt., Inc. v. Aspen Specialty Inc. Co., Civil Action No. 1:08-CV-0572-JOF, 2009 WL 1174661, at *4 (N.D. Ga. Apr. 28, 2009) (quoting Meyers v. State Farm Fire & Cas. Co., 801 F. Supp. 709, 716 (N.D. Ga. 1992)). Information is material in the insurance context where it would "influence a prudent insurer's decision to insure." Meyers, 801 F. Supp. at 715. And though "materiality is generally a mixed question of law and fact . . . , materiality can be properly decided as a matter of law by the court on summary judgment if 'reasonable minds could not differ on the question.' " S. Realty Mgmt., 2009 WL 1174661, at *4.
Here, the Court finds that "reasonable minds could not differ" as to whether Plaintiff has failed to provide material information required by section 8(d) of the Policy. See id. Defendant's December 1, 2020 letter requested the following from Plaintiff:
(1) Originals of all photographs of property, point of sale receipts, invoices, purchase orders, bills of sale, cancelled checks and bank statements, [and] charge account and merchant records which reflect the date of purchase, purchase price, place of purchase, and description of any and all property you claim to have been the subject of this loss.
. . .
(2) All appraisals, estimates, or valuations of any property which is the subject of this claim dated
within 12 months of the date of loss.[See Doc. 21-2 at 52-53].
. . .
(3) All bank statements, cancelled checks, charge account receipts, charge account statements, or other such documents which refer or relate to any item which is the subject of this claim.
. . .
(4) All bank statements related to any deposit account held in your name or jointly with another and which reflect all transaction detail for the period of 2 months before the purchase of any and all property you claim to have been the subject of this loss.
(5) All statements for each credit card held in your name or jointly with another and reflecting all transaction detail for all property you claim to have been the subject of this loss, if any.
(6) Please provide . . . [the] full name and . . . contact information [for the jeweler from whom you purchased the Band Ring]. Please provide your friend's name and contact information that introduced you to [this jeweler].
(7) Please provide a copy of the police inventory for the release of your vehicle.
(8) Please provide your flight information related to checking your luggage or carrying on your luggage for the flight to Georgia [Plaintiff took shortly before the Jewelry was stolen].
Upon review, the Court finds that each of these categories of documents is material to Defendant's ability to verify the Claim and its amount. All of the documents sought by items (1) and (2) in the December 1, 2020 letter go to the value of the Jewelry and thus the "amount" of the Claim. [See Doc. 7 at 32] (noting that the insured is required "to produce such records as Defendant may need to verify the . . . amount" of the Claim). Plaintiff appears to contend that documents reflecting the Jewelry's purchase price are not relevant to the "amount" of the Claim "because [Defendant] has indicated that it does not intend to reimburse [Plaintiff] for the purchase price of the items, but rather the current appraised value." [See Doc. 21-2 at 56]. However, even if Plaintiff is correct that the Claim's value will be based on the Jewelry's current appraised value, the price Plaintiff paid for the Jewelry is relevant to determining what that current appraised value is. See, e.g., Stricker v. Deutsche Bank Nat'l Tr. Co., No. SA-19-CV-01398-JKP, 2021 WL 3145666, at *4 (W.D. Tex. July 26, 2021) (explaining in a different context that "evidence of [the] price paid" for a certain piece of property "may be offered to support" the "valuation" of that property); Trackwell v. B & J P'ship, Ltd., 437 F. Supp. 2d 1052, 1053-54 (D. Neb. 2006) (describing "the purchase price" paid for a home as a "[f]act[ ] relevant to the value of th[at] home").
Materials responsive to items (3), (4), (5), and (6) in the December 1, 2020 letter are relevant for the same reason as those responsive to items (1) and (2)—to confirm the amounts Plaintiff paid for the Jewelry. They are also relevant to establish Plaintiff's ownership of the Jewelry, which is material to Defendant's ability "to verify the [C]laim." [See Doc. 7 at 32]. If Plaintiff did not own the Jewelry at the time of its theft, that could suggest the Claim was fraudulent. Where an insurer suspects that a claim may be fraudulent, pursuant to Georgia law, it "ha[s] the right to investigate the" circumstances surrounding the claim to decide whether it should be paid. See Lucas, 864 F. Supp. 2d at 1355. And the insured is "required to cooperate with the insurer in investigation and resolution of the claim." See id. (internal quotation marks omitted) (quoting Diamonds & Denims, Inc. v. First of Ga. Ins. Co., 203 Ga.App. 681, 417 S.E.2d 440, 441 (1992)). Here, Defendant had reason to think Plaintiff did not own at least one article of the Jewelry at the time of the theft. During his examination under oath, Plaintiff could not recall when and from whom he purchased the Band Ring. Def.'s SOMF ¶¶ 9-10. And an appraisal for the Band Ring Plaintiff provided to Defendant does not bear Plaintiff's name. See id. ¶ 11; [see also Doc. 20 at 43]. Accordingly, pursuant to the Policy, Defendant was entitled to request documents designed to allay that suspicion of fraud. [See Doc. 7 at 32] (giving Defendant the right to request such documents "as [it] may need to verify the [C]laim").
Plaintiff argues that Defendant's suspicion of fraud is unfounded. [See Doc. 24 at 7-8, 12-14, 17-18]. Defendant responds that its suspicion of fraud is justified because, among other things: (1) Plaintiff added the Band Ring to the Policy less than a month before the Jewelry was stolen, (2) Plaintiff failed to promptly report to the police that the Jewelry was in his stolen vehicle, and (3) there are purportedly inconsistencies between Plaintiff's testimony at his examination under oath and the narrative in a police report describing the theft of the Jewelry. [See Doc. 25 at 4-5]. Though it may well be true that the Claim is not fraudulent, the Court finds that Defendant's suspicion of fraud is not wholly unjustified.
Finally, the information sought by items (7) and (8) is relevant to determining whether Plaintiff had possession of the Jewelry shortly before and after the incident in which he claims the Jewelry was stolen. See Love Exam. at 21:20-22:2 (Plaintiff testifying that he had "just fl[o]w[n] in[to]" Atlanta from Los Angeles "a couple of days" prior to the theft of the Jewelry); [see also Doc. 21-2 at 57] (Plaintiff's counsel suggesting that the post-theft vehicle inventory would support Plaintiff's version of events because it "obviously would not include the items of [J]ewelry which were taken from the vehicle by the perpetrator"). Such information is material to whether the Claim is valid or fraudulent. And here Defendant has indicated it suspects fraud. [See Doc. 21-2 at 41]. Thus, Defendant was entitled to the information sought by items (7) and (8) pursuant to the Policy and governing Georgia law. [See Doc. 7 at 32]; see also Lucas, 864 F. Supp. 2d at 1355.
In short, the Court finds that "reasonable minds could not differ" as to whether the information sought by Defendant's December 1, 2020 letter was material to the Claim. See S. Realty Mgmt., 2009 WL 1174661, at *4. It is undisputed that Plaintiff has not provided any material responsive to at least items (3)-(8) in that letter. See Def.'s SOMF ¶ 49. Thus, it is undisputed that Plaintiff has failed to provide material information required by section 8(d) of the Policy. Therefore, as a matter of law, Plaintiff is not entitled to recovery for the Claim pursuant to the Policy. See Hines, 815 F.2d at 651; Lucas, 864 F. Supp. 2d at 1353; Youhoing, 2010 WL 11500940, at *3; Farmer, 396 F. Supp. 2d at 1382; Halcome, 334 S.E.2d at 157. Accordingly, the Court grants summary judgment in Defendant's favor on Plaintiff's breach of contract claim.
In correspondence with Defendant, Plaintiff appears to argue that he provided sufficient information in response to items (1) and (2) in Defendant's December 1, 2020 letter. [See Doc. 21-2 at 56]. The Court need not decide whether Plaintiff provided adequate material in response to items (1) and (2) because Plaintiff's undisputed failure to provide material responsive to items (3)-(8) precludes his contract claim. See Lucas, 864 F. Supp. 2d at 1353 (summarizing cases standing for the proposition that where an insured provides some requested documents but refuses without legitimate explanation to provide other categories of requested documents, the insured has breached the policy and may not recover pursuant to it); Halcome, 334 S.E.2d at 157 (emphasis omitted) ("If the [insureds] failed to provide any material information called for under . . . the policy, . . . they breached the insurance contract."). For this same reason, the Court does not consider whether Defendant's December 1, 2020 request for documents superseded or supplemented those Defendant made by its November 2020 letter or whether Plaintiff adequately responded to the November 2, 2020 document requests. See supra pp. 1315-17. Nor does the Court need to decide the legal effect of Plaintiff's undisputed failure to sign and return the errata form for his examination under oath. See Def.'s SOMF ¶ 49.
The undersigned notes that Plaintiff repeatedly refers to the issue on which the Court evaluates his breach of contract claim as a "technicality." [See Doc. 24 at 2, 11, 15, 19]. However, as Defendant points out, Plaintiff's position is contrary to the Georgia law which holds that "the conditions set out in the policy contract," like section 8(d) of the Policy here, "are an essential part of the consideration for the insurer assuming the risk[.]" See Hill v. Safeco Ins. Co. of Am., 93 F. Supp. 2d 1375, 1379 (M.D. Ga. 1999) (internal quotation marks omitted) (quoting Buffalo Ins. Co. v. Star Photo Finishing Co., 120 Ga.App. 697, 172 S.E.2d 159, 167 (1969)).
B. Bad Faith Denial of An Insurance Claim Pursuant to O.C.G.A. § 33-4-6
In addition to his breach of contract claim, Plaintiff appears to assert a claim for "bad faith handling of the Claim" pursuant to O.C.G.A. § 33-4-6. See Compl. ¶ 68. Defendant asserts that Plaintiff "never makes a claim under Georgia's bad faith statute[,]" but does not explain the basis for this assertion. [See Docs. 21-1 at 19; 25 at 10]. In response to Defendant's motion for summary judgment, Plaintiff does not make any arguments in support of his bad faith claim. [See generally Doc. 24].
"To prevail on a bad-faith claim under O.C.G.A. § 33-4-6, an insured must show: (1) that a demand for payment was made against the insurer at least sixty days prior to filing suit, and (2) that the insurer's failure to pay was motivated by bad faith." SDT Stewart Grp., Inc. v. United Nat'l Ins. Co., Civil Action No. 1:17-CV-03371-MLB, 2019 WL 12522848, at *8 (N.D. Ga. Dec. 26, 2019).
Statutory penalties for bad faith refusal to pay a claim are not authorized where the insurance company has any reasonable ground to contest the claim. Where the insured has breached the contract by failing to satisfy a condition precedent to litigation, the insurer has reasonable grounds for refusing to pay the insured's claim.Youhoing, 2010 WL 11500940, at *5; accord Farmer, 396 F. Supp. 2d at 1383; Hill, 93 F. Supp. 2d at 1384-85.
Here, as a described in supra Section IV.A, Defendant had reasonable grounds to refuse to pay the Claim because Plaintiff did not comply with a condition precedent to such a payment. Plaintiff's bad faith denial claim thus fails as a matter of law. See Youhoing, 2010 WL 11500940, at *5. Accordingly, the Court grants summary judgment in Defendant's favor on that claim.
C. Unfair Acts or Practices in Violation of O.C.G.A. § 33-6-4
Plaintiff alleges that "the actions of Defendant constitute unfair acts or practices in the business of insurance as set forth in O.C.G.A. § 33-6-4." Compl. ¶ 69. Defendant argues that summary judgment in its favor is appropriate on this claim because "[t]he types of acts which constitute unfair trade practices in" violation of that statute "do not fit the circumstances of this case" and because the "Commissioner of Insurance is generally charged with enforcing O.C.G.A. § 33-6-4." [Doc. 21-1 at 17-18]. Additionally, to the extent Plaintiff uses this claim "to bring a claim for racial discrimination," Defendant contends "Plaintiff fails to allege any factual basis for" such a claim. [Id. at 16 n.1]. Similarly, Defendant argues that its investigation of the Claim "was based upon the facts of the" Jewelry's theft and not any racial discrimination. [Id.]. Plaintiff does not respond to these arguments. [See generally Doc. 24].
Defendant also makes arguments related to the Georgia Unfair Claims Settlement Practices Act. [See Doc. 21-1 at 18-19]. The Court does not address these arguments because, as far as it can discern, Plaintiff does not assert a claim pursuant to the Georgia Unfair Claims Settlement Practices Act. See generally Compl.
Defendant is correct that O.C.G.A. § 33-6-4 does not provide for a private right action to enforce most of its provisions. See Elder v. State Farm Fire & Cas. Co., Civil Action No. 1:19-CV-05077-SDG, 2020 WL 4530315, at *3-4 (N.D. Ga. May 15, 2020); Harrison v. Blackledge, Civil Action No. 1:19-CV-1811-MHC, 2019 WL 13212716, at *7 (N.D. Ga. Dec. 20, 2019). However, as this district has recognized, the text of one provision of O.C.G.A. § 33-6-4 does explicitly contain private right of action. See O.C.G.A. § 33-6-4(b)(8)(a)(iv)(I); see also Harrison, 2019 WL 13212716, at *7. That provision provides that:
in connection with any kind of insurance, it shall be an unfair and deceptive act or practice to refuse to insure or to refuse to continue to insure an individual; to limit the amount, extent, or kind of coverage available to an individual; or to charge an individual a different rate for the same coverage because of the race, color, or national or ethnic origin of that individual.See O.C.G.A. § 33-6-4(b)(8)(a)(iv)(I).
Here, Plaintiff bases his O.C.G.A. § 33-6-4 claim on the purportedly discriminatory way in which Defendant investigated the Claim. See id. ¶¶ 1, 32, 58-65, 67, 70. Assuming without deciding that this conduct is actionable pursuant to O.C.G.A. § 33-6-4, the Court finds that Plaintiff's O.C.G.A. § 33-6-4 claim cannot survive summary judgment. As detailed above, the undisputed evidence demonstrates that Defendant acted within its rights pursuant to the Policy in its investigation and handling of the Claim. See supra Section IV.A. There is no evidence in the record suggesting that Defendant chose to investigate the Claim in the way that it did "because of" Plaintiff's race. See id.; see also O.C.G.A. § 33-6-4(b)(8)(a)(iv)(I). Accordingly, the Court grants summary judgment in favor of Defendant on Plaintiff's O.C.G.A. § 33-6-4 claim.
D. Attorney's Fees Pursuant to O.C.G.A. § 13-6-11 and Punitive Damages
Finally, Plaintiff alleges that he is entitled to recover punitive damages and "his costs of litigation in this matter including, without limitation, attorney's fees pursuant to O.C.G.A. § 13-6-11." Compl. ¶¶ 72-72. Defendant argues that Plaintiff's claims for attorney's fees and punitive damages fail as a matter of law because "Georgia law is clear that O.C.G.A. § 33-4-6 is the sole manner by which an insured can recover extra-contractual damages in a first-party dispute over failure to pay insurance benefits." [See Doc. 21-1 at 19-20]. Plaintiff does not respond to this argument. [See generally Doc. 24].
Upon review, the Court agrees with Defendant that Plaintiff's claims for attorney's fees pursuant to O.C.G.A. § 13-6-11 and punitive damages are barred as matter of law. As this district has previously observed:
Georgia courts have held that O.C.G.A. § 33-4-6 is the exclusive remedy for bad faith denial of benefits unless other elements of damages are recoverable. Since the plaintiff's only viable claim for damages
is predicated on the defendant's failure to pay benefits under the Policy, there is no claim for damages that will support an award [of attorney's fees] under O.C.G.A. § 13-6-11.Est. of Thornton ex rel. Thornton v. Unum Life Ins. Co. of Am., 445 F. Supp. 2d 1379, 1383 (N.D. Ga. 2006) (internal citation omitted). The Georgia Court of Appeals has found that the reasoning of cases like Estate of Thornton applies to claims for punitive damages in addition to claims for attorney's fees. See Great Sw. Exp. Co. v. Great Am. Ins. Co. of N.Y., 292 Ga.App. 757, 665 S.E.2d 878, 881 (2008). Accordingly, the Court grants summary judgment in Defendant's favor on Plaintiff's claims for attorney's fees pursuant to O.C.G.A. § 13-6-11 and punitive damages.
Because the Court enters summary judgment in Defendant's favor on all of Plaintiff's claims, the Court need reach Defendant's motion to compel [Doc. 40] and denies that motion as moot.
V. Conclusion
For the foregoing reasons, the Court GRANTS Defendant's "Motion for Summary Judgment" and ENTERS JUDGMENT in favor of Defendant. [Doc. 21]. Further, the Court DENIES AS MOOT Defendant's "Motion to Compel." [Doc. 40].
SO ORDERED, this 19th day of September, 2022.