ACMG of Louisiana, Inc. v. Towers Perrin Inc. ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-15395 AUGUST 4, 2010
________________________ JOHN LEY
CLERK
D. C. Docket No. 04-01338-CV-RWS-1
ACMG OF LOUISIANA, INC.,
ACMG, INC.,
Plaintiffs-Appellants,
versus
TOWERS PERRIN INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 4, 2010)
Before DUBINA, Chief Judge, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
ACMG of Louisiana, Inc. and ACMG, Inc. (“ACMG”) appeal the district
court’s order granting defendant Towers Perrin, Inc. (“Towers Perrin”) summary
judgment on their breach of contract, indemnification, and contribution claims and
taxing against them the costs of the litigation. Towers Perrin prevailed on its
motion for summary judgment by arguing that ACMG’s breach of contract claim
was untimely and that the contribution and indemnity claims were legally deficient.
After reviewing the record, reading the parties’ briefs, and having the benefit of
oral argument, we affirm the district court’s grant of summary judgment and its
order awarding costs to Towers Perrin.
I. BACKGROUND
This dispute involves three primary entities: Vantage Health Plan of
Louisiana, Inc. (“Vantage”), a health insurance plan; ACMG, the administrator of
the insurance plan; and Towers Perrin, the consulting firm that provided ACMG
with the rate model used in calculating premiums for the plan. Amidst alleged
poor plan performance, Vantage terminated ACMG’s management agreement and
sued ACMG for breach of contract in Louisiana. ACMG settled the case by
relinquishing claims to future payment under the contract and surrendering
Vantage stock. In turn, Vantage assigned to ACMG its claims against Towers
Perrin for breach of contract.
ACMG sued Towers Perrin via a third party complaint in the Louisiana
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litigation. ACMG moved to amend the complaint on May 3, 2004, to add claims
against Towers Perrin, a motion the court granted on August 9, 2004. ACMG
never served Towers Perrin with the third party complaint, however, but
voluntarily dismissed the action immediately after filing the amended complaint on
August 9. Meanwhile, on May 13, 2004, ACMG commenced this action against
Towers Perrin in the Northern District of Georgia. ACMG asserted the breach of
contract claims assigned to it by Vantage as well as direct contribution and
indemnification claims against Towers Perrin, claiming that it was forced to settle
the Vantage suit because of Towers Perrin’s mistakes. After granting summary
judgment in favor of Towers Perrin, the district court ordered ACMG to pay
Towers Perrin’s litigation costs under 28 U.S.C. § 1920 (2006).
II. STANDARD OF REVIEW
We review a grant of summary judgment de novo. Fanin v. U.S. Dep’t of
Veterans Affairs, 572 F.3d 868, 871 (11th Cir. 2009). We review a district court’s
award of costs to the prevailing party for abuse of discretion. Chapman v. AI
Transp., 229 F.3d 1012, 1039 (11th Cir. 2000).
III. DISCUSSION
ACMG first objects to the district court’s determination that the Georgia
renewal statute did not save its time-barred breach of contract action because
ACMG did not serve Towers Perrin in the Louisiana suit before dismissal.
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Georgia law allows the recommencement of an otherwise untimely claim if it was
timely brought elsewhere:
When any case has been commenced in either a state or federal court
within the applicable statute of limitations and the plaintiff
discontinues or dismisses the same, it may be recommenced in a court
of this state or in a federal court either within the original applicable
period of limitations or within six months after the discontinuance or
dismissal, whichever is later . . . .
Ga. Code Ann. § 9-2-61(a) (2007).
ACMG contends that Georgia courts would interpret the statutory term
“commenced” with reference to the law of the state where the action was brought.
Cf. Walker v. Armco Steel Corp., 446 U.S. 740, 752–53, 100 S. Ct. 1978, 1986
(1980) (holding that a federal court in a diversity action must look to the law of the
forum state to determine when the action is commenced). We have no indication
that Georgia courts, however, would look outside the law of Georgia to determine
when an action is “commenced” under the renewal statute. E.g., Collins v. W. Am.
Ins. Co., 368 S.E.2d 772, 773 (Ga. Ct. App. 1988) (citing Georgia case law for the
proposition that an out of state action dismissed for lack of subject matter
jurisdiction was void and therefore had not been commenced). As a result,
ACMG’s unserved Louisiana lawsuit is ineligible for renewal because it was never
commenced. See Hobbs v. Arthur, 444 S.E.2d 322, 323 (Ga. 1994) (holding that a
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lawsuit “is void if service was never perfected”). We conclude from the record that
the district court correctly determined that the Georgia statute of limitations barred
the breach of contract claim asserted here.
ACMG next asserts error in the district court’s conclusion that it failed to
state a claim for either indemnity or contribution in the complaint. A claim for
indemnity arises only when a party pays damages on behalf of another. See
Restatement (Third) of Torts: Apportionment of Liability § 22 cmt. b (2000)
(“[A]n indemnitee must extinguish the liability of the indemnitor to collect
indemnity. The indemnitee may do so either by a settlement . . . or by satisfaction
of judgment that by operation of law discharges the indemnitor from liability.”);
see also Carr v. Nodvin, 342 S.E.2d 698, 702 (Ga. Ct. App. 1986) (noting that an
indemnitor “is entitled to restitution from the other for expenditures properly made
in the discharge of such liability” (internal quotation marks omitted)). The same is
true of contribution—a responsible party must pay some portion on behalf of
another before he has a right to recover that portion. Tenneco Oil Co. v. Templin,
410 S.E.2d 154, 159 (Ga. Ct. App. 1991) (noting that contribution is available only
when one tortfeasor has paid more than his fair share of the damages). Because
ACMG did not extinguish or mitigate Towers Perrin’s liability in its settlement
with Vantage, but rather received assignment of claims against Towers Perrin, no
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right of indemnity or contribution exists. We conclude therefore that the district
court correctly granted summary judgment on these claims.
ACMG finally raises a number of other objections to the costs taxed against
it, primarily arguing that the charges for data copying, duplication, transcripts, and
depositions were unreasonable. Its argument, however, raises no facts from which
we find an abuse of discretion on the part of the district court in awarding these
costs.
IV. CONCLUSION
We conclude that ACMG’s belated breach of contract claim is not saved by
Georgia’s renewal statute. Moreover, the district court correctly granted summary
judgment in favor of Towers Perrin on ACMG’s contribution and indemnity
claims. We also find no abuse of discretion in the district court’s award of costs.
AFFIRMED.
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