Case: 15-11352 Date Filed: 10/16/2015 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-11352
Non-Argument Calendar
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D.C. Docket No. 1:13-cv-01130-SCJ
JOHNSON LANDSCAPES, INC.,
Plaintiff - Appellant,
versus
FCCI INSURANCE COMPANY,
Defendant - Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(October 16, 2015)
Before WILSON, JORDAN, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Case: 15-11352 Date Filed: 10/16/2015 Page: 2 of 3
Appellant Johnson Landscapes, Inc. (Johnson Landscapes) appeals the
district court’s order granting summary judgment in favor of Appellee FCCI
Insurance Company (FCCI) in an action for declaratory relief and for damages
arising from FCCI’s alleged bad-faith refusal to provide coverage and defend.
Johnson Landscapes initially filed suit under O.C.G.A. § 9-4-2 and O.C.G.A. § 33-
4-6 after FCCI refused to extend coverage and defend against claims stemming
from the collapse of several retaining walls built by Johnson Landscapes at a
shopping mall. 1 The wall failures began in 2007 and continued until 2011.
On appeal, Johnson Landscapes contends that disputed issues of fact exist as
to whether timely notice of its insurance claims was provided to FCCI via Johnson
Landscapes’s independent insurance agent, Yates Insurance Agency (Yates).
Moreover, Johnson Landscapes contends that notice to Yates was sufficient to
constitute notice to FCCI since Yates served as a dual agent for both Johnson
Landscapes and FCCI. Finally, Johnson Landscapes contends that even if notice to
Yates was insufficient to constitute notice to FCCI, its delay in directly notifying
FCCI in 2011 is excusable because under the circumstances, such a delay was
reasonable and justified.
After consideration of the parties’ briefs and upon thorough review of the
record, we agree with the district court that notice was a condition precedent under
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Johnson Landscapes also asserted a claim pursuant to O.C.G.A. § 13-6-11 for attorney’s
fees and costs.
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Case: 15-11352 Date Filed: 10/16/2015 Page: 3 of 3
the policy; that “Yates was not a dual agent acting on behalf of both Johnson
Landscapes and FCCI”; and that, under the circumstances, “a four year delay
clearly is not prompt notice and Johnson Landscape’s 2011 notice was untimely.”
Thus, Johnson Landscapes’s failure to provide prompt notice relieved FCCI of any
duty to defend or provide coverage pursuant to the insurance policy between it and
Johnson Landscapes. Accordingly, summary judgment was properly entered, and
we affirm the order of the district court.
AFFIRMED.
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