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Whiteside v. Infinity Cas. Ins. Co.

United States District Court for the Middle District of Georgia, Columbus Division

August 8, 2008, Decided; August 8, 2008, Filed

CASE NO: 4:07-CV-87 (CDL)

Opinion

ORDER

This case arises from the alleged failure of Defendant Infinity Casualty Insurance Company to settle a claim against its insured, Lucio Zeferino-Anaya. Presently pending before the Court are (1) Defendant's Motion for Summary Judgment (Doc. 75); (2) Plaintiff's Motion for Partial Summary Judgment (Doc. 76); (3) four motions in limine to exclude expert testimony (Docs. 98, 102, 103 & 104); (4) Defendant's Motion to Strike (Doc. 106); and (5) Defendant's Motion for Leave to File Amended Answer (Doc. 107). For the following reasons, the Court rules as set forth below.

BACKGROUND

I. The Underlying Accident

On July 15, 2000, Zeferino Lucio-Anaya was  [*2] driving a vehicle insured by Defendant Infinity Casualty Insurance Company ("ICIC"). Lucio-Anaya had been drinking, crossed the center line, and collided with the vehicle occupied by Vesta Majors and her daughter, Debra Hanson. Ms. Majors was killed in the collision, and Ms. Hanson was also seriously injured. 1 

Bicente Aguilera Moreno was riding in the passenger seat of the car driven by Lucio-Anaya. Moreno suffered permanent brain damage and was left in a coma. It is undisputed that the vehicle driven by Lucio-Anaya was insured by ICIC and provided bodily injury coverage with a limit of $ 15,000 per person and $ 30,000 per accident. (Pl.'s Statement of Undisputed Material Facts [hereinafter, Pl.'s SOMF] P 2; Def.'s Resp. to Pl.'s SOMF P 2.)

II. ICIC's Attempted Settlement Negotiations

ICIC litigation claims representative Shanda Barnes was assigned to the claims brought by the injured parties, including the claim brought by Moreno against Lucio-Anaya (the "Underlying Claim"). Barnes knew that Moreno's injuries were very serious; Ed Frerichs, an ICIC litigation manager, confirmed the seriousness of  [*3] Moreno's injuries and that ICIC's insured, Lucio-Anaya, was clearly liable for the collision. (Pl.'s SOMF PP 3, 4; Def.'s Resp. to Pl.'s SOMF PP 3, 4.) By mid-August of 2000, ICIC determined that the Underlying Claim should be settled by a payment of the policy limits, $ 15,000. (Pl.'s SOMF P 6; Def.'s Resp. to Pl.'s SOMF P 6.) Barnes also knew that because Moreno was in a coma, a Georgia Probate Court would have to appoint a guardian to handle his affairs. (Pl.'s SOMF P 7; Def.'s Resp. to Pl.'s SOMF P 7.)

On August 23, 2000, attorney Noah Rosner of the firm Perales, Fernandez and Rosner, LLP, wrote to Barnes requesting that ICIC tender the policy limits to settle any claim Moreno might have against Lucio-Anaya. Barnes agreed, and she requested that ICIC issue a $ 15,000 check made out to Elsa Ramirez, Moreno's presumptive guardian, and Rosner's law firm. (Pl.'s Ex. 10.) Barnes, however, held the check and noted in her claims file that she had to wait to conclude any settlement until Rosner provided Moreno's guardianship paperwork. (Pl.'s Ex. 2 at Whiteside 00192.) The file for the Underlying Claim languished for nearly a year and a half. 2 During this time, Rosner also left Perales,  [*4] Fernandez and Rosner.

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2008 U.S. Dist. LEXIS 60512 *; 77 Fed. R. Evid. Serv. (Callaghan) 289

FIFE M. WHITESIDE, Trustee in Bankruptcy, Plaintiff, vs. INFINITY CASUALTY INSURANCE CO., f/k/a ATLANTA CASUALTY CO., Defendant.

Prior History: Anaya v. Coello, 279 Ga. App. 578, 632 S.E.2d 425, 2006 Ga. App. LEXIS 644 (2006)

CORE TERMS

insurer, settlement, bad faith, summary judgment, expert testimony, contends, handling, policy limit, settle, affirmative defense, attorney's fees, Partially, plaintiff's claim, punitive damages, coverage, reliable, parties, failure to settle, breach of fiduciary duty, fiduciary duty, communications, message, material fact, lawyers, argues, notice, vicariously liable, insurance company, breach of duty, in limine