Terry Gilmour v. American Nat'l Red Cross

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-12025 September 23, 2004
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________

D. C. Docket No. 02-00125-CV-WTM-2

TERRY GILMOUR,

Plaintiff-Appellant,

versus

AMERICAN NATIONAL RED CROSS,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Southern District of Georgia
_________________________

(September 23, 2004)

Before CARNES, HULL and GODBOLD, Circuit Judges.

PER CURIAM:
 This case overlaps factually with Gilmour v. Gates, McDonald & Co., __

F.3d __ (11th Cir. 2004), which was dismissed on a summary judgment order for

Gates and affirmed by this court. The central issue in this case is the

reasonableness of Terry Gilmour’s actions in response to oral and written

assertions by the American National Red Cross to pay her medical expenses. The

district court determined her actions were unreasonable as a matter of law. We

agree.

Following the tragic events of September 11, 2001 in New York City,

Gilmour traveled from Georgia to New York City to volunteer for Red Cross and

assist with the disaster relief effort. Shortly after her arrival, Gilmour contracted

Legionnaire’s Disease and as a result endured a series of medical complications

that ultimately ended her tenure with Red Cross. At the time of her illness Gilmour

had served as a volunteer for well over a year, working for nearly three months as a

paid employee.

To protect its staff against such unforeseen events Red Cross made available

$10,000 worth of supplemental insurance coverage as well as a procedure to apply

to the national headquarters for additional insurance coverage. Red Cross manuals

provide that this additional coverage is available at the discretion of the director of

the relief operation for workers with insufficient resources for immediate care.

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Longer term care requires approval through national headquarters. These manuals

require volunteers to maintain and utilize their own health insurance.

Gilmour’s health insurance coverage was set to expire on the day of her

admission to the hospital in New Jersey. She announced this fact to her supervisor,

Rita Brookshire, and offered to forgo having a phone in her room. Brookshire told

Gilmour, “Red Cross will end up paying anything your insurance doesn’t pay.”

After her admission Red Cross arranged for Gilmour’s father, Jim Wynn, to travel

to New Jersey to comfort his daughter. Wynn was also concerned about the

medical expenses and was told by Red Cross representatives that Red Cross

“would take care of all her expenses, that they had a $10,000 policy, but would

take care of all her expenses.” Red Cross also assisted Gilmour in extending her

health insurance through a post-employment insurance plan mandated by federal

law after her regular insurance coverage lapsed. As a result all of Gilmour’s

covered medical expenses were paid under her own insurance policy through

February 2002.

Gilmour eventually was transferred to a hospital in Georgia where she

underwent rehabilitation and therapy. After her release she continued to volunteer

for Red Cross near her home. Meanwhile Brookshire continued to seek assistance

from Red Cross on Gilmour’s behalf. With Brookshire’s support, in January 2002

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Gilmour drafted a letter to Red Cross requesting additional aid and notifying Red

Cross of her escalating medical costs as well as her desire to cancel her own

insurance policy. Gilmour also overheard Brookshire explain to a Red Cross

representative that she “did not need further assistance with medical bills because

Red Cross had already agreed to pay for these.” Shortly after submitting this letter,

Brookshire advised Gilmour that the “board” had met and determined that she was

eligible for additional assistance, “but they did not know the amount.”

In March 2002 Gilmour’s post-employment federally mandated insurance

policy lapsed because she could not afford the monthly premium and understood

that Red Cross would pay her medical expenses. In July after Red Cross failed to

cover her medical costs she filed suit alleging (1) breach of contract, (2) negligent

misrepresentation, (3) promissory estoppel, and (4) attorney’s fees. Afterwards

Red Cross tendered $10,000 pursuant to its supplemental insurance policy.

After discovery commenced, Red Cross moved for summary judgment

which was granted on all counts. The contract claim failed for lack of

consideration. The claim of negligent misrepresentation failed because speakers

who made the statements lacked a pecuniary interest in whether Gilmour’s

insurance was supplemented by Red Cross and because Gilmour’s reliance on

statements made to her was unreasonable. The promissory estoppel claim failed

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because Gilmour’s reliance on the written Red Cross manuals and the oral

statements was unreasonable as a matter of law and the written statements lacked

mutuality. Gilmour was not entitled to attorney’s fees because she had no

underlying claim. Gilmour appealed the ruling on the negligent misrepresentation,

promissory estoppel, and attorney’s fees issues. We affirm.

We review de novo a district court’s order granting motion for summary

judgment and construe “all reasonable doubts about the facts in favor of the non-

movant.” Browning v. Peyton, 918 F.2d 1516, 1520 (11th Cir. 1990).

Under Georgia law the doctrine of promissory estoppel allows a party who

has reasonably relied on the promise of another to bring an action to enforce the

promise so long as the reliance was reasonably expected. See O.C.G.A. § 13-3-

44(a). The question of whether a party reasonably relied on the promise of another

is ordinarily a factual inquiry for a jury to resolve. See Ambrose v. Sheppard, 241

Ga. App. 835, 837 (2000). However a determination of reasonableness can be

made as a matter of law if a prior disclaimer or disclosure prevents justifiable

reliance on the representation. See W.R. Grace & Co.- Conn. v. Taco Tico

Acquisition Corp., 216 Ga. App. 423, 426 (1995).

Taken together the oral and written statements preclude a finding of

reasonable reliance as a matter of law. The written statements in the Red Cross

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manuals never promised to do anything more than Red Cross did. The manuals

state that funds were available to compensate volunteers who were injured in

connection with their volunteer work. These funds were available and $10,000

was paid to Gilmour to aid in paying her medical expenses. The fact that

additional funding for long term care was available through national headquarters

with approval of Red Cross is inconsequential. Before her trip to New Jersey Red

Cross never promised to provide Gilmour with any additional funding. After she

became ill Red Cross followed the procedure set forth in the manuals and Gilmour

was denied additional insurance coverage. Because these statements did not

promise to do anything over and above what was done we need not decide whether

these statements lacked mutuality.

Against this background, Gilmour’s reliance on any additional medical

coverage based on the oral statements is unreasonable as a matter of law. When

the oral statements were made to Gilmour she knew through her tenure with Red

Cross that the only coverage provided was set forth in clear written terms in the

Red Cross manuals she received and reviewed. Thus when Brookshire and other

representatives made oral representations that she would be taken care of these

representations must be viewed in context of the written statements contained in

the Red Cross manuals. See, e.g., Gerdes v. Russell Rowe Communications, Inc.,

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232 Ga. App. 534, 536 (1998) (plaintiff could not reasonably rely on oral promise

for higher compensation when earlier binding agreement specifically stated

alterations must be in writing). Moreover the Red Cross manuals (and many of the

oral statements themselves) clearly referenced the $10,000 supplemental policy

limit and procedure for obtaining additional coverage. The Red Cross manuals

also made clear that employees were to have their own insurance coverage. When

Brookshire advised Gilmour that the “board” had met and determined Gilmour was

eligible for assistance but did not specify an amount, Gilmour had no reason to

believe any amount over the $10,000 was forthcoming. Gilmour mistakes

Brookshire’s general concern for her well-being for a promise that she could

justifiably rely upon. Both Brookshire and Gilmour knew the context in which

these representations were made.

Viewed in this light, Gilmour’s reliance on the oral statements was

unreasonable as a matter of law. Without notice of the insurance framework set

forth in the Red Cross manuals, the facts of this case would vaguely resemble those

in Folks, Inc. v. Dobbs, 181 Ga. App. 311(1987). In Dobbs the court held that the

reasonableness of a restaurant patron’s reliance on the owner’s statement that he

would pay her expenses after she slipped and fell was a question for the jury. See

id. at 314. Considering these written statements however the result in this case is

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governed by our decision in Doll v. Grand Union Co., 925 F.2d 1363, 1373 (11th

Cir. 1991) where we held that a development partnership’s reliance on a

supermarket chain’s intention to lease shopping space was unreasonable in the

context of documents that stated the chain was not bound until the final draft of a

lease was executed. Moreover unlike the patron in Doll who had no preexisting

relationship with the restaurant owner or notice of any reimbursement procedure

Gilmour had served Red Cross for over a year and was familiar with its policies

and procedures for injured volunteers.

DPLM, Ltd v. J.H. Harvey Co., 241 Ga. App. 219 (1999) confirms this

distinction. In DPLM the Court held that unlike Doll the parties did not make the

requirement of a final agreement explicit before engaging in negotiations to expand

a tenant’s store – there was no preexisting agreement which made the parties

reliance unreasonable. See id. at 223-24. Consequently under Georgia law the

written statements notifying Gilmour of the $10,000 supplemental insurance

coverage and the additional coverage available at the discretion of the national

headquarters of Red Cross mandate our finding that Gilmour’s reliance on oral

promises of additional insurance coverage was unreasonable as a matter of law.

Moreover Gilmour’s claim of additional medical reimbursement over the

$10,000 potentially exposes Red Cross to potentially unlimited reimbursement

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costs. Given this exposure it is questionable whether the statements were

sufficiently definite for Gilmour to rely upon as required by Georgia law. See,

e.g., Mooney v. Mooney, 245 Ga. App. 780, 783-84 (2000) (estranged husband’s

promise to “help [wife]” too vague); DeLong Equip. Co. v. Washington Mills

Abrasive Co., 887 F.2d 1499, 1518 (11th Cir. 1989) (indefinite oral distributorship

agreement cannot support promissory estoppel claim). For instance Brookshire’s

response that Red Cross would cover expenses that Gilmour’s insurance does not

pay was in response to her query concerning a telephone in her room. This

statement could be construed to refer only to cover additional expenses for the

phone in the room. Gilmour concedes this indefiniteness in her letter to Red Cross

inquiring into the status of the national board’s decision to extend additional

coverage. This issue was not decided by the district court and we need not decide

it here. What is clear to us however is that Gilmour’s reliance on the oral

representations made by Red Cross personnel was unreasonable as a matter of law.

Gilmour’s claim for negligent misrepresentation is fatally flawed. The

Georgia standard for a negligent misrepresentation claim tracks the Restatement

(Second) of Torts § 552 (1977) and provides:

[O]ne who, in the course of his business, profession or
employment, or in any other transaction in which he has
a pecuniary interest, supplies false information for the
guidance of others in their business transactions, is

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 subject to liability for pecuniary loss caused to them by
their justifiable reliance upon the information, if he fails
to exercise reasonable care or competence in obtaining or
communicating the information. Robert & Co. Assocs.
v. Rhodes-Haverty P’ship., 250 Ga. 680, 681 n.1 (1983)
(citing Restatement (Second) of Torts, § 552 (1977))
(emphasis added).

Gilmour urges an awkward construction of the Restatement that excises pecuniary

interest from the beginning of the sentence so that the statement may be made

during the course of business, profession, or employment or a transaction with a

pecuniary interest. This reading is supported by neither logic nor the Restatement

itself. To state a claim for negligent misrepresentation under Georgia law the

speaker must have a pecuniary interest. See Restatement (Second) of Torts, § 552

cmt. c (1977). This reading avoids imposing liability on a speaker who provides

gratuitous information when the speaker is not obligated to speak. See id.

Brookshire and other Red Cross personnel had no pecuniary interest in

whether Gilmour received supplemental insurance coverage from Red Cross. They

were merely attempting to care for a fallen colleague. Moreover, even assuming

Brookshire and other Red Cross personnel who made statements to Gilmour had a

pecuniary interest in Gilmour’s reimbursement, our finding of Gilmour’s reliance

as unreasonable as a matter of law forecloses a claim based on negligent

misrepresentation. See Robert & Co. Assoc. at 681 n.1. Accordingly Gilmour has

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no claim for negligent misrepresentation.

Finally we agree with the district court that Gilmour has no claim for

attorney’s fees. We decided in Gilmour v. Gates, McDonald & Co., __ F.3d __

(11th Cir. 2004) that a claim for an attorney’s fees under the Georgia statute

invoked by Gilmour, O.C.G.A. Section 13-6-11, requires an underlying claim. As

in that case Gilmour has no underlying claim to support an attorney’s fee award

here.

AFFIRMED.

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