[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
______________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-13155 December 22, 2003
______________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 01-01042-CV-MHS-1
ADMIRAL INSURANCE COMPANY,
Plaintiff-Counter-
Defendant-Appellee,
versus
CRESENT HILLS APARTMENTS,
Defendant-Counter-
Claimant-Cross-
Defendant-Cross-
Claimant-Appellant,
BAUER AGENCY, INC.,
Defendant-Counter-
Claimant-Cross-
Claimant-Cross-
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 22, 2003)
Before ANDERSON and WILSON, Circuit Judges, and OWENS*, District Judge.
OWENS, District Judge:
We now revisit this case upon its return from the Supreme Court of Georgia to
which this court certified two questions regarding the cancellation of insurance
policies under Georgia law. See Admiral Ins. Co. v. Cresent Hills Apts., 328 F.3d
1310 (11th Cir. 2003). Although the facts are more fully set forth in this court’s
previous opinion, for purposes of this opinion a brief outline of the facts are set forth
below.
Admiral Insurance Company issued a commercial property insurance policy
covering the Cresent Hills Apartment complex in Atlanta. Admiral eventually
decided to cancel the policy after it was reported the apartments were in deplorable
condition. An Admiral underwriting assistant prepared an undated cancellation
notice for Cresent stating the policy would be cancelled effective November 8, 2000.
The notice was to be sent by certified mail. According to an Admiral employee, she
taped the envelope containing the notice of cancellation to the outside of the mailbox
in the lobby of their office building on October 5, 2000. Attached to the envelope
was a note asking the letter carrier to date and sign or postmark the certified mail
*
Honorable Wilbur D. Owens, Jr., United States District Judge for the Middle District of
Georgia, sitting by designation.
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receipt with the date it was picked up for delivery. The receipt was returned to
Admiral, undated and without a postmark. The notice was delivered to Cresent via
certified mail on October 11, 2000. A Cresent employee signed the receipt, returned
the receipt to Admiral and placed the envelope on the desk of the president and sole
shareholder of the corporation that owns Cresent Apartments. The president did not
open the envelope until December 29, 2000. In the interim, a fire destroyed five
apartment units on December 27. When Cresent’s insurance agent, Bauer Agency,
Inc., reported the fire to Admiral, Admiral informed Bauer that the insurance policy
covering the apartments had been cancelled effective November 8. No notice of
cancellation was sent to First Savings Bank, Cresent’s lienholder.
Admiral filed a motion for declaratory judgment in the United States District
Court for the Northern District of Georgia, seeking a judicial declaration that Admiral
was not obligated to pay Cresent’s claim because Admiral had cancelled the policy.
Cresent contended the cancellation was ineffective because it was not in compliance
with O.C.G.A. § 33-24-44(b)1 since the lienholder had not been notified and there
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“Written notice stating the time when the cancellation will be effective, which shall not be less than
30 days from the date of mailing or delivery in person of such notice of cancellation or such other specific
longer period as may be provided in the contract or by statute, shall be delivered in person or by depositing
the notice in the United States mails to be dispatched by at least first-class mail to the last address of record
of the insured and of any lienholder, where applicable, and receiving the receipt provided by the United
States Postal Service or such other evidence of mailing as prescribed or accepted by the United States Postal
Service.”
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was no evidence the notice of cancellation had been mailed at least 30 days before the
date of the purported cancellation. The district court granted summary judgment in
Admiral’s favor finding Admiral had effectively cancelled the policy. Cresent
appealed to this court.
On appeal, this court determined that the law was unclear in Georgia whether
the means by which Admiral attempted to mail the cancellation of the policy was
effective. The court certified two questions to the Supreme Court of Georgia:
1. Did Admiral’s failure to notify the lienholder of the attempted
cancellation of Cresent’s policy affect in any way Cresent’s right to make a claim
under the policy?
2. Did Admiral comply with the requirements of O.C.G.A. § 33-24-44(b)
by affixing an envelope containing a notice of policy cancellation to the outside of
a United States postal mailbox with a request to the United States Postal Service to
receipt for the same and mail it via certified mail to Cresent?
As more thoroughly set out in the Supreme Court of Georgia’s opinion attached
herewith, the court answered the second question in the negative and found it
unnecessary to answer the first. Because the Supreme Court of Georgia found that
Admiral failed to follow the requirements of the statute in its attempt to cancel the
policy and thus failed to effectively cancel the policy, the district court’s grant of
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summary judgment in Admiral’s favor is VACATED and this case is REMANDED
for further proceedings.
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