An insurance company is not responsible for premises liability damages after a man was shot and killed outside an Atlanta grocery store in 2019, thanks to unambiguous policy exclusions, a federal judge ruled Monday.
Colony Insurance Co., part of Argonaut Insurance and the Argo Group, asked the U.S. District Court for the Northern District of Georgia to declare that its policy for the food store clearly excluded coverage for injuries that arise from assaults and from the use of lethal weapons. Colony made the motion despite the fact that it is defending the property owners in the underlying negligence and premises liability lawsuit.
“The Court finds that the language of the assault and battery exclusion and the weapons exclusion is unambiguous and that the underlying claims fall within those exclusions,” U.S. District Judge Thomas Thrash wrote in the order.
The ruling, if it is not appealed or is upheld on appeal, could come as a relief to property insurers in the wake of several recent seven-figure verdicts over negligent security and premises liability at food stores and convenience stores in the South.
The case also shines a light on discovery proceedings in litigation, an insurance broker’s relationship with a carrier, and an insurer’s responsibility to insureds who may not understand the policy wording.
Lawyers for the widow of the 28-year-old killed in the shooting had argued that the policy exclusions were “unconscionable” because the owners of Henry Properties do not speak English. But the judge found that under Georgia law, parties to a contract are presumed to have read and understood the policy.
The property owners also argued that they needed discovery of Colony Insurance information about the broker, as well as the circumstances surrounding the issuance of the policy. But the judge said that while the general rule in litigation is for the court to hold off on summary judgment until discovery is complete, 11th Circuit, the federal appeals court for Georgia and parts of the Southeast, “has not adopted a blanket prohibition on the granting of summary judgment motions before discovery.”
And in this case, one discovery period closed in June and the defendant property owners did not provide evidence that further disclosure would rebut Colony’s motion that the court uphold the policy exclusions.
The property owners also provided no evidence showing that the insurance broker was a “dual agent” acting on behalf of the insurance carrier. Previous court rulings have held that brokers are considered agents of the insured unless the insurer granted authority to bind coverage on the insurer’s behalf. Henry Properties suggested that may be revealed in discovery, but the judge said that was insufficient grounds to deny summary judgment.
Three young men were charged with Holloway’s murder after the 2019 shooting.
The Colony Insurance case decision came eight months after a Georgia state appeals court upheld a $43 million premises liability verdict against the CVS Pharmacy chain, after a man was shot in the Atlanta store’s parking lot in 2012. That case and two other high-dollar verdicts in Georgia in the last three years have put a spotlight on properties’ and insurers’ responsibility to ensure safety for businesses in high-crime areas.
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