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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11713
Non-Argument Calendar
________________________
D.C. Docket No. 1:17-cv-05541-WMR
NAUTILUS INSURANCE COMPANY,
Plaintiff-Appellant,
versus
CHRISTOPHER FLOR,
TAYONNA C. VOLINSKI,
DAISY DAVIS,
as guardian of Kevin Maull,
as next friend of Kevin Maull,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(February 11, 2020)
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Before WILLIAM PRYOR, JILL PRYOR, and TJOFLAT, Circuit Judges.
PER CURIAM:
This case is about whether Nautilus Insurance Company has a duty to defend
under an insurance policy issued to Christopher Flor. For an insurer to be excused
from its duty to defend its insured, the allegations in the underlying complaint must
“unambiguously exclude coverage under the policy.” HDI-Gerling Am. Ins. Co. v.
Morrison Homes, Inc.,
701 F.3d 662, 666 (11th Cir. 2012); see also Penn-Am. Ins.
Co. v. Disabled Am. Veterans, Inc.,
490 S.E.2d 374, 376 (Ga. 1997). “If the facts
as alleged in the complaint even arguably bring the occurrence within the policy’s
coverage, the insurer has a duty to defend the action.” Hoover v. Maxum Indem.
Co.,
730 S.E.2d 413, 418 (Ga. 2012). Nautilus argues that the District Court erred
in determining that it had a duty to defend named-insured Flor. Specifically,
Nautilus contends that it has no duty to defend because the alleged driver, Tayonna
Volinski, is not an “insured” under the contract and because the facts as alleged are
within the ambit of two exclusion provisions that bar coverage. Because the facts
as alleged in the underlying complaint arguably bring the occurrence within the
policy’s coverage, we affirm as to Nautilus’s duty to defend Flor.
In determining that Nautilus has a duty to defend Flor, the District Court
also sua sponte granted summary judgment for Volinski, finding that Nautilus has
a duty to defend Volinski. We conclude that whether Nautilus has a duty to defend
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Volinski rests on whether she is an “insured” within the meaning of the contract;
our analysis is subject to ordinary principles of contract interpretation. Because we
determine that genuine issues of material fact remain, we vacate the District
Court’s grant of summary judgment in favor of Volinski.
I.
This dispute arises from a car accident that occurred on November 23, 2016.
Volinski was allegedly driving a 2001 GMC Jimmy on Interstate 85 with her
boyfriend, Kevin Maull, as a passenger when she lost control of the vehicle. Both
occupants were ejected and suffered serious injuries. Maull was left in a
vegetative state and later died from his injuries. Volinski sustained a traumatic
brain injury and has no recollection of the incident.
The 2001 GMC Jimmy (the “vehicle”) was owned by Flor. Flor is the
president and owner of Peachstate Auto Insurance Agency, Inc. Flor carried a
primary, underlying insurance policy on the vehicle through Infinity Select
Insurance Company. Flor also had an umbrella policy through Nautilus.
Maull’s next of kin, Daisy Davis, sued Volinski, Flor, Peachstate, and others
in Dekalb County State Court, asserting claims for negligence and negligent
entrustment. Volinski answered and asserted a crossclaim against Flor for
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negligent maintenance. Infinity tendered its policy limit to resolve the claims
against Flor.
Nautilus then filed this federal action against Flor, Volinski, and Davis,
seeking a declaration of its coverage obligations under the policy. Nautilus and
Flor both moved for summary judgment. The District Court granted summary
judgment to Flor on Nautilus’s duty to defend because it determined that he met
the definition of “insured” under the policy and that no exclusion precluded a duty
to defend. Although Volinski had not moved for summary judgment, the Court
determined that its resolution of Nautilus’s duty to defend Flor also resolved
whether Nautilus has a duty to defend Volinski and granted summary judgment in
her favor. The Court did not rule on Nautilus’s duty to indemnify. Nautilus now
appeals.
II.
We review the District Court’s “disposition of cross-motions for summary
judgment de novo, applying the same legal standards used by the district court,
viewing the evidence and all factual inferences therefrom in the light most
favorable to the non-movant, and resolving all reasonable doubts about the facts in
favor of the non-moving party.” Am. Bankers Ins. Grp. v. United States,
408 F.3d
1328, 1331 (11th Cir. 2005). Summary judgment is proper if the evidence shows
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“that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
III.
The Nautilus policy states that Nautilus “shall defend any suit against the
‘insured.’” The policy defines “insured” as “you while using any automobile” and
“[a]ny person using [a covered vehicle] with your permission.” (internal quotations
omitted). The policy also includes two exclusions on coverage which Nautilus
argues preclude any duty to defend.
First, exclusion 7 states that coverage is excluded for:
“Bodily injury”, “property damage”, or “personal injury” arising out of:
a. “Business” pursuits of the “insured”; or
b. Property at or from which a “business” is conducted by the
“insured” and the damage is as a result of the “business.”
Business is defined as “any activity performed for economic gain, including
a trade, profession, or occupation, other than farming.”
Second, exclusion 18 states that coverage is excluded for “[a]ny liability
arising out of any ‘automobile’ provided by the employer of any ‘insured’, its
replacement or substitute unless ‘underlying insurance’ provides coverage for the
loss.” The Infinity policy is listed on the schedule of underlying insurance.
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According to the underlying complaint filed in the state court action,
Volinski “was operating the vehicle on behalf of” Peachstate and Flor at the time
of the incident. The vehicle was wrapped with Peachstate’s logo for the alleged
purpose of “promoting the business of” Peachstate. It was often parked at the
Peachstate Tucker branch. After Volinski began working at the Peachstate Tucker
branch in the summer of 2016, she found that she did not have reliable
transportation to and from work and asked Flor if she could use the vehicle. The
complaint alleges that Volinski was a permissive user of the vehicle.
The parties agree that Flor gave Volinski permission to use the vehicle but
disagree over the scope of that permission. Nautilus alleges that Volinski’s
permission to use the vehicle was limited to commuting to and from work.
Volinski claims that there were no limitations on her use of the vehicle.
In her deposition, Volinski testified that she called Flor and explained that
she was having trouble finding transportation to work and asked if she could use
the vehicle. She called Flor on the advice of her co-workers after they said that
others had used the vehicle before and recommended that she ask Flor if she could
use the vehicle. Volinski testified that she did not specifically ask Flor for
permission to drive the vehicle beyond commuting. She further testified that Flor
did not place any such restrictions on her use of the vehicle.
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Flor testified that Volinski called him to ask if she could occasionally
borrow the car because she was having trouble getting to and from work. He
claimed that he said it was okay for her to use the car “to and from work only.”
Flor testified that he learned she was using the vehicle more than just on the
occasional instances when she could not find a ride to or from work. He
“believe[d]” he had a second conversation with Volinksi in which he reiterated that
the vehicle was to be used for commuting “to and from work.” He could not recall
when the second conversation took place and did not document the conversation.
He testified that he was not aware that Volinski was using the vehicle for more
than commuting purposes after the purported second conversation. He also stated
that, hypothetically, had he learned that she was using the vehicle for more than
commuting to and from work after the second conversation, he would have
cancelled his permission. He did not know where she was living or how long her
commute took. When asked why he allowed her to use the car, he stated that he
was “doing it to help her out” rather than to promote the company.
Both Flor and Volinksi testified that another employee in the branch,
Joscelyn Reyes, had used the vehicle. Volinski testified that a different employee
had also used the vehicle to go get lunch, as the keys were left in the back office of
the Peachstate office. Flor testified that he was not aware of employees using the
vehicle to run errands.
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Approximately three weeks after Flor gave Volinski permission to use the
vehicle, she complained to Flor’s father (who is also a Peachstate employee) that
something seemed to be wrong with the brakes in the vehicle. Flor’s father, Bob
Flor, took the vehicle to a mechanic on October 27, 2016 and then returned the
vehicle to Volinski.
The parties agree that at the time of the incident the vehicle was being used
to transport Volinski and Maull from their shared residence to Maull’s place of
employment. 1 Volinski testified that she would use the vehicle for
“miscellaneous” activities beyond commuting to and from the Peachstate office,
such as going to the store. She also testified that she had used the vehicle to take
Maull to work on one or two prior occasions.
IV.
It is a well-settled principle of Georgia law that the duty to defend and the
duty to indemnify are different obligations. S. Tr. Ins. Co. v. Mountain Express Oil
Co.,
828 S.E.2d 455, 458 (Ga. App. 2019). “Although an insurer need not
indemnify an insured for a liability the insured incurs outside the terms of the
insurance contract, an insurer must provide a defense against any complaint that, if
successful, might potentially or arguably fall within the policy’s coverage.” Elan
1
There is some evidence that Maull may have been driving the vehicle on the night of the
incident, but Nautilus has not advanced this as a reason to defeat summary judgment on appeal.
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Pharm. Research Corp. v. Emp’rs Ins. of Wausau,
144 F.3d 1372, 1375 (11th Cir.
1998) (citing Penn-Am. Ins. Co.,
490 S.E.2d at 376). Courts compare the language
of the policy to the allegations of the complaint “to determine whether a liability
covered by the policy is asserted.” Fireman’s Fund Ins. Co. v. Univ. of Ga.
Athletic Ass’n,
654 S.E.2d 207, 209 (Ga. App. 2007) (quoting Penn-Am. Ins. Co.,
490 S.E.2d at 376). An insurer is obligated to defend even when the allegations
against the insured are ambiguous or incomplete with respect to the issue of
insurance coverage. Penn-Am. Ins. Co.,
490 S.E.2d at 376.
For an insurer to be excused from its duty to defend, the facts as alleged
must “unambiguously exclude coverage under the policy.” HDI-Gerling Am. Ins.
Co., 701 F.3d at 666; Penn-Am. Ins. Co.,
490 S.E.2d at 376. “If the facts as alleged
in the complaint even arguably bring the occurrence within the policy’s coverage,
the insurer has a duty to defend the action.” Hoover,
730 S.E.2d at 418. Any
doubts about the duty to defend should be resolved in favor of the insured.
Id.
Furthermore, any exclusion in the contract is to be strictly construed. Richards v.
Hanover Ins. Co.,
299 S.E.2d 561, 563 (Ga. 1983).
Although an insurer has no obligation to independently investigate claims
when a complaint alleges facts that unambiguously fall outside of coverage, if an
insured notifies the insurer of facts that would cause the claim to potentially fall
within coverage, the insurer still has a duty to defend if an investigation establishes
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potential coverage. See Colonial Oil Indus. v. Underwriters Subscribing to Policy
Nos. TO31504670 & TO31504671,
491 S.E.2d 337, 339 (Ga. 1997).
We affirm the District Court’s ruling that Nautilus has a duty to defend Flor.
According to the policy, Nautilus must defend any suit against an insured,
regardless of whether the allegations are “groundless, false, or fraudulent.” The
policy provides that Flor, as the named-insured policyholder, is covered “while
using any automobile.” The policy defines “using” as “maintaining, entrustment to
others, operating, loading, or unloading.” The underlying suit asserts claims
against Flor for negligent maintenance and negligent entrustment that arguably fall
within the policy’s coverage.
Neither exclusion 7 nor exclusion 18 function to “unambiguously exclude
coverage under the policy.” For exclusion 7—the business pursuits exception—the
District Court held that because Volinksi was driving her boyfriend, Maull, to
work, she was “arguably engaged in a personal errand, which is not a business
pursuit on behalf of Flor.” Nautilus argues that the vehicle was a “moving
billboard” for Flor’s company, Peachstate, and was only provided to Volinski to
help her work for Flor’s company, Peachstate.
We agree with the District Court. The facts as established by the parties still
indicate potential coverage. Volinski was employed by Peachstate—not by Flor
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directly. Peachstate did not own the vehicle. Flor did. Volinski was not driving
the vehicle on a business pursuit of Flor when she was driving her boyfriend to his
place of employment. Even assuming the promotional advertising qualifies as a
business pursuit, it was arguably a pursuit of Peachstate rather than of Flor and
therefore the claim potentially falls within the coverage provided by the Nautilus
policy.
For exclusion 18, the District Court determined that (1) the automobile was
not furnished to Volinski by her employer, but by Flor and (2) the underlying
Infinity policy provided coverage. We agree—if either of these are arguably true
then Nautilus has a duty to defend Flor. Since the automobile was owned by Flor
personally rather than by Peachstate, it is arguable that the vehicle was not
provided by Volinski’s employer. And as Infinity tendered its policy limits to
resolve the underlying suit, it is arguable that the loss was covered by an
underlying policy.
The District Court properly concluded that the allegations of the underlying
complaint, even viewing the evidence in Nautilus’s favor, were sufficient to assert
a claim against Flor that, at least arguably, was not unambiguously excluded by
either exclusion 7 or exclusion 18. Therefore, Nautilus has a duty to defend Flor
against all claims asserted.
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V.
The District Court sua sponte granted summary judgment for Volinski,
concluding that Nautilus’s duty to defend Flor resolved whether Nautilus has a
duty to defend Volinski.2 Nautilus argues that Volinski is not an insured under the
policy and as such, Nautilus has no duty to defend her.
The policy provides that “[a]ny person using [a covered automobile] with
your permission” is an “insured.” The only question is whether Volinksi had
Flor’s permission to drive the vehicle. 3
The policy does not define the phrase “with your permission.” Georgia
courts interpret the phrase “with your permission” to relate to the scope of the
purpose for which the permission was given, rather than to the manner of the
vehicle’s operation or to whom operates the vehicle. Allstate Ins. Co. v. Spillers,
555 S.E.2d 489, 491 (Ga. App. 2001). Georgia uses an objective inquiry test to
2
A district court may enter summary judgment sua sponte provided the losing party “was
on notice that she had to come forward with all of her evidence.” Burton v. City of Belle Glade,
178 F.3d 1175, 1203 (11th Cir. 1999). At the evidentiary hearing, the District Court stated that it
would provide Nautilus an opportunity to be heard regarding summary judgment for Volinksi.
The record does not contain any evidence that Nautilus requested a hearing or submitted written
objections to the District Court. Nautilus does not raise a failure to be heard as an error in this
appeal.
3
Although Georgia compares the allegations of the underlying complaint to determine
whether the insurer has a duty to defend an insured, it considers the true facts, rather than the
allegations of the underlying complaint, to determine who is an “insured.” See, e.g., Strickland
v. Ga. Cas. & Sur. Co.,
162 S.E.2d 421, 425 (Ga. 1968); Georgia Farm Bureau Mut. Ins. Co. v.
Allstate Ins. Co.,
379 S.E.2d 619, 620 (Ga. App. 1989).
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determine “whether a reasonable person could conclude under the circumstances
that the use of the [vehicle] fell within the scope of the permission granted by the
policyholder.” Id. at 491.
There is a genuine issue of material fact for whether Volinski was using the
vehicle within the scope of the permission granted by Flor. There is conflicting
testimony about whether any restriction was placed on Volinski’s use of the
vehicle, as Volinski testified that Flor did not place any limitations on her use of
the vehicle and Flor testified that he restricted Volinski’s use of the vehicle “to and
from work only.” Considering that the conversation was admittedly short, that
Volinski had access to a set of keys to the vehicle, that other employees had used
the vehicle for more than commuting purposes, that the vehicle was taken in for
repairs and given back to her to use, and that there was no timeframe placed on her
use of the vehicle or questions regarding her commute, a reasonable person could
conclude that Flor’s grant of permission encompassed more than just driving to
and from work.
Nautilus points to Clayton v. Southern General Insurance Co.,
702 S.E.2d
446, 448 (Ga. App. 2010), Conklin v. Acceptance Indemnity Insurance Co.,
702
S.E.2d 727, 729 (Ga. App. 2010), and Prudential Property & Casaulty Insurance
Co. v. Walker,
464 S.E.2d 230, 231 (Ga. App. 1995) as examples of cases where
the borrower exceeded the scope of permission. In those cases, the circumstances
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of the arrangement clearly indicated that there were prohibitions on usage. For
example, in Clayton, the owner of the vehicle “always demanded that no one else
drive the car and that [the driver] return it immediately after completing her
errands.” 702 S.E.2d at 448. In Conklin, the borrower “signed a vehicle test-drive
or use agreement agreeing that he would ‘not allow anyone to drive the vehicle
other than my spouse or myself.’” 702 S.E.2d at 729. In Prudential, the borrower
was told “not to loan the car to anybody, and he was expressly instructed not to go
to Florida, Savannah, or anywhere else.”
464 S.E.2d at 231. But here, unlike in
those cases, we do not have such clear evidence that Flor prohibited Volinski from
using the vehicle for a personal purpose. Therefore, implied permission to use the
vehicle for general transportation purposes, not inconsistent with Flor’s express
permission to use the vehicle for transportation “to and from work,” could exist.
Even if Flor did place restrictions on Volinski’s use of the vehicle, a
reasonable jury could conclude that Flor acquiesced to her use of the vehicle for
more than commuting when he decided not to take the keys back or to otherwise
cancel his permission after he learned that she was using the vehicle more
frequently than he had originally permitted. Because fact questions exist regarding
the scope of permission for Volinski’s use of Flor’s vehicle, we VACATE the
District Court’s grant of summary judgment on Nautilus’s duty to defend Volinski.
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SO ORDERED. AFFIRMED in part, VACATED in part, and
REMANDED for further proceedings.
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