Partner Nik Makarenko and Associate Ashley Vest win Summary Judgment in Gwinnett County

August 17, 2020 – Partner Nikolai Makarenko and Associate Ashley Vest obtained Summary Judgment on behalf of their client in the State Court of Gwinnett County. In this case, Plaintiff claimed he sustained bodily injuries from a motor vehicle accident that occurred on July 11, 2016. Plaintiff filed his Complaint for damages on June 4, 2018. On September 20, 2019, Plaintiff served Mercury Indemnity Company of Georgia (“Mercury”), alleging he was entitled to underinsured motorist coverage as a resident relative pursuant to an auto policy in which neither he, nor the vehicle he was driving on July 11, 2016, was listed. Mercury had not received notice of the subject motor vehicle accident until August 27, 2019. The Mercury policy Plaintiff referred to provided, as a condition of coverage, that its insured must provide notice of any accident or loss within thirty (30) days of such occurrence.

Based upon the foregoing, Mr. Makarenko and Ms. Vest brought a Motion for Summary Judgment contending Plaintiff had failed to comply with a condition precedent to coverage and Mercury therefore was relieved of having to provide any uninsured/underinsured motorist coverage to the Plaintiff. Plaintiff and another putative excess underinsured motorist carrier, as an unnamed party in the case, filed separate responses alleging that Mercury’s policy did not expressly make notice a condition precedent to coverage. Plaintiff further argued that his failure to comply with the notice provision did not prejudice Mercury. Mercury replied, maintaining that the policy very clearly made notice within 30 days of a loss a condition precedent to coverage. The unnamed putative excess underinsured motorist carrier filed a reply arguing that Mercury’s policy language was ambiguous, and Mercury had failed to demonstrate prejudice from Plaintiff’s failure to comply with the notice provision.

Judge Pamela South of the State Court of Gwinnett County agreed that the notice provision was a condition precedent to coverage. But Plaintiff did not provide notice to Mercury until more than three (3) years after the accident or loss. Plaintiff’s failure to timely notify Mercury forfeited Plaintiff’s right to coverage. Further, Plaintiff’s 3-year delay in notifying Mercury was unexcused and unreasonable as a matter of law. Judge South Granted Summary Judgment to Mercury.

The Court’s Order can be viewed here.

The case is Mohmedrafik Shaikh v. Stephen Dorsey

State Court of Gwinnett County, CAFN: 18C-04149-S5