Opinion
Civil Action No. 1:21-cv-01132-VMC
2022-07-14
RAM HOTEL MANAGEMENT, LLC, Niravana Hospitality, LLC, Columbus Hospitality, LLC, RAM Alpharetta Hospitality, LLC and RajAbhinand Hotel, LLC, Plaintiff, v. HARTFORD FIRE INSURANCE COMPANY and Marsh McLennan Agency, LLC, Defendants.
Alston E. Lyle, W. Donald Morgan, Jr., Morgan & Lyle, P.C., Columbus, GA, Clyde O'Neal Westbrook, III, Pro Hac Vice, Harris & Harris, LLP, Birmingham, AL, James Addison Harris, III, Pro Hac Vice, Watkins and Eager PLLC, Birmingham, AL, Phillip Ted Colquett, Pro Hac Vice, Colquett Law, LLC, Birmingham, AL, Raymond Matt Glover, Prince Glover Law, Tuscaloosa, AL, for Plaintiff. Caleb C. Wolanek, Pro Hac Vice, Christopher C. Frost, Maynard Cooper & Gale, P.C., Birmingham, AL, Sarah D. Gordon, Pro Hac Vice, William Lee Drake, Pro Hac Vice, Steptoe & Johnson, Washington, DC, Jason Alloy, Robbins Alloy Belinfante Littlefield LLC, Atlanta, GA, for Defendant Hartford Fire Insurance Company. Roger S. Sumrall, Bendin, Sumrall & Ladner, LLC, Atlanta, GA, for Defendant Marsh McLennan Agency, LLC.
Alston E. Lyle, W. Donald Morgan, Jr., Morgan & Lyle, P.C., Columbus, GA, Clyde O'Neal Westbrook, III, Pro Hac Vice, Harris & Harris, LLP, Birmingham, AL, James Addison Harris, III, Pro Hac Vice, Watkins and Eager PLLC, Birmingham, AL, Phillip Ted Colquett, Pro Hac Vice, Colquett Law, LLC, Birmingham, AL, Raymond Matt Glover, Prince Glover Law, Tuscaloosa, AL, for Plaintiff.
Caleb C. Wolanek, Pro Hac Vice, Christopher C. Frost, Maynard Cooper & Gale, P.C., Birmingham, AL, Sarah D. Gordon, Pro Hac Vice, William Lee Drake, Pro Hac Vice, Steptoe & Johnson, Washington, DC, Jason Alloy, Robbins Alloy Belinfante Littlefield LLC, Atlanta, GA, for Defendant Hartford Fire Insurance Company.
Roger S. Sumrall, Bendin, Sumrall & Ladner, LLC, Atlanta, GA, for Defendant Marsh McLennan Agency, LLC.
ORDER
Victoria Marie Calvert, United States District Judge
Before the Court are the Motions, under Federal Rule of Civil Procedure 12(b)(6), of Defendants Hartford Fire Insurance Company ("Hartford") and Marsh McLennan Agency, LLC ("Marsh") to dismiss the Second Amended Complaint of Plaintiffs RAM Hotel Management, LLC, Niravana Hospitality, LLC, Columbus Hospitality, LLC, RAM Alpharetta Hospitality, LLC, and RajAbhinand Hotel, LLC (respectively, "Hartford Motion," Doc. 81, and "Marsh Motion," Doc. 82 ). Plaintiffs filed Responses to the Marsh Motion and the Hartford Motion (Docs. 89, 90). Marsh and Hartford filed Replies in Support of the Marsh Motion and the Hartford Motion (Docs. 91, 93). Hartford also filed a Notice of Supplemental Authority after briefing was concluded (Doc. 95).
Marsh filed an Amended Motion to Dismiss which clarified that it was filed both on its own behalf and on behalf of an improperly named defendant, "Marsh McLennan." Because Marsh was substituted for that improperly named defendant, see supra note 1, the Amended Motion to Dismiss is now moot.
Having reviewed the foregoing briefs and all matters properly of record, the Court will grant the Hartford Motion and the Marsh Motion and dismiss this civil action with prejudice.
BACKGROUND
Because this case is before the Court on a Motion to Dismiss, the following facts are drawn from Plaintiff's Complaint and are accepted as true. Cooper v. Pate , 378 U.S. 546, 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964).
I. The Policies
Plaintiffs are four single entity limited liability companies which own a hotel each and their management company, RAM Hotel Management, LLC. (2d Am. Compl. ¶ 1, Doc. 69). Defendant Hartford is an insurance company that issued certain policies to Plaintiffs (the "Policies") (Id. ¶¶ 2, 9–11). Defendant Marsh brokered the purchase of the Policies. (Id. ¶¶ 9, 11). The Policies refer to the hotels owned by each Plaintiff and the RAM Hotel Management, LLC corporate offices as the "Scheduled Premises." (Id. ¶ 10).
The Policies contained an insuring agreement which provided:
We will pay up to the Business Income and Extra Expense Limit of insurance stated in the Property Choice – Schedule of Premises and Coverages for the actual loss of Business Income you sustain and the actual, necessary and reasonable Extra Expense you incur due to the necessary interruption of your business operations during the Period of Restoration due to direct physical loss of or direct physical damage to property caused by or resulting from a Covered Cause of Loss at "Scheduled Premises" where a limit of insurance is shown for Business Income and Extra Expense.
(Id. ¶ 12). "Covered Cause of Loss" is defined as
The Policies define Business Income, Extra Expense, and Period of Restoration, but these definitions have no bearing on the Motions to Dismiss, which concern the scope rather than the amount of coverage under the Policies.
direct physical loss or direct physical damage that occurs during the Policy Period and in the Coverage Territory unless the loss or damage is excluded or limited in this policy.
The Policies define Policy Period and Coverage Territory, but no party has asserted that Plaintiffs’ alleged claims fall outside of the Policy Period or Coverage territory.
The Policies contain the following coverage relating to acts of civil authorities:
A.2. Civil Authority
A.2.a. This insurance is intended to apply to the actual loss of Business Income you sustain and the actual, necessary
and reasonable Extra Expense you incur when access to your "Scheduled Premises" is specifically prohibited by order of a civil authority as the direct result of a Covered Cause of Loss to property in the immediate area of your "Scheduled Premises."
(Id. ; see also Hartford Motion Ex. A at 77, Doc. 81-3; Ex. B at 86, Doc. 81-4.).
Hartford attaches copies of the relevant Policies to its Motion to Dismiss. Ordinarily, the evidence the Court considers on a motion to dismiss should be limited to the four corners of the complaint because otherwise the motion would be converted to a motion for summary judgment. See 5C Charles Allen Wright et al., Federal Practice and Procedure § 1366 (3d ed. 1998) (noting that "whenever outside matters are presented to and not excluded by the court, the matter will be considered by the appellate court as one for summary judgment"). But the Eleventh Circuit has recognized an exception to this general rule when "the plaintiff refers to certain documents in the complaint and those documents are central to the plaintiff's claim." Brooks v. Blue Cross & Blue Shield of Fla., Inc. , 116 F.3d 1364, 1369 (11th Cir. 1997). In such circumstances, "the Court may consider the documents part of the pleadings for purposes of Rule 12(b)(6) dismissal," meaning that "the defendant's attaching such documents to the motion to dismiss will not require conversion of the motion into a motion for summary judgment." Id. This exception applies when the materials cited are both (1) "central to the plaintiff's claim" and (2) "undisputed." Horsley v. Feldt , 304 F.3d 1125, 1134 (11th Cir. 2002). Here, the Policies are central to Plaintiffs’ Claims, which concern whether certain losses were covered by the Policies, and the authenticity of the attached Policies are undisputed.
The Policies contain an exclusion for " ‘Fungus,’ Wet Rot, Dry Rot, Bacteria or Virus," which specifies that Hartford "will not pay for loss or damage caused directly or indirectly by any of the following.... Presence, growth, proliferation, spread or any activity of ... [a] virus...." (Hartford Motion Ex. A at 98–99, Doc. 81-3; Ex. B at 107–08, Doc. 81-4). However, "[t]his Exclusion does not apply: (1) When ‘fungus,’ wet rot, dry rot, bacteria or virus results from fire or lightning; or (2) To the extent that coverage is provided in the Additional Coverage(s) – ‘Fungus,’ Wet Rot, Dry Rot, Bacteria or Virus – Limited Coverage with respect to loss or damage by a cause of loss other than fire or lightning." (2d Am. Compl. ¶ 12, Doc. 69; Hartford Motion Ex. A at 99, Doc. 81-3; Ex. B at 107–08, Doc. 81-4.).
The additional, limited coverage for " ‘Fungus,’ Wet Rot, Dry Rot, Bacteria and Virus" ("Virus Endorsement") is as follows:
a. The coverage described below only applies when the "fungus", wet or dry rot, bacteria or virus is the result of one or more of the following causes that occurs during the policy period and only if all reasonable means were used to save and preserve the property from further damage at the time of and after that occurrence.
(1) A "specified cause of loss" other than fire or lightning;
(2) Equipment Breakdown Accident occurs to Equipment Breakdown Property, if Equipment Breakdown applies to the affected premises; or
(3) Flood, if the Causes of Loss Flood endorsement applies to the affected premises.
b. We will pay for loss or damage by "fungus", wet rot, dry rot, bacteria and virus. As used in this Limited Coverage, the term loss or damage means:
(1) Direct physical loss or direct physical damage to Covered Property caused by "fungus", wet rot, dry rot, bacteria or virus, including the cost of removal of the "fungus", wet rot, dry rot, bacteria or virus;
(2) The cost to tear out and replace any part of the building or other property as needed to gain access to the "fungus", wet rot, dry rot, bacteria or virus; and
(3) The cost of testing performed after removal, repair, replacement or restoration of the damaged property is completed, provided there is a reason to believe that "fungus", wet rot, dry rot, bacteria or virus are present.
(2d Am. Compl. ¶ 12, Doc. 69; Hartford Motion Ex. A at 53, Doc. 81-3; Ex. B at 61, Doc. 81-4).
Lastly, "Specified Causes of Loss" means "fire; lightning; explosion; windstorm or hail; smoke; aircraft or vehicles; riot or civil commotion; vandalism; "Sinkhole Collapse"; "Volcanic Action"; falling objects; weight of snow, ice or sleet; water damage, "Sprinkler Leakage"; "Theft"; or "Building Glass" breakage." (2d Am. Compl. ¶ 12, Doc. 69).
II. Plaintiffs’ Claims
Plaintiffs suffered losses due to the COVID-19 pandemic, including "by extraordinary ... cleaning and disinfecting of every conceivable surface or thing one might find in a hotel." (Id. ¶ 36). Plaintiffs also allege an unspecified "loss in business income and extra expense." (Id. ¶ 38).
Hartford received Plaintiffs’ notice of claim on May 1, 2020 and denied it five business days later on May 8, 2020. (Id. ¶ 28). Hartford cited several reasons, including that any damage from a virus "is excluded from the policy" and that "the limited coverage available for losses caused by virus does not apply to the facts of your loss." (Id. )
Plaintiffs commenced this civil action in the Superior Court of Fulton County on February 11, 2021 against Hartford, Marsh, and the City of Alpharetta. (Doc. 1-2). Defendants Hartford and Marsh removed the case to this Court on March 19, 2021. (Doc. 1). Plaintiffs later amended the Complaint to drop the City of Alpharetta as a party. (Doc. 69). In Plaintiffs’ Second Amended Complaint, Plaintiffs allege five counts: Breach of Contract, Fraud, Bad Faith, "Institutional Bad Faith," and Broker Liability. Defendants move to dismiss all claims against them.
LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). For the purposes of a motion to dismiss, the court must accept all factual allegations in the complaint as true; however, the court is not bound to accept as true a legal conclusion couched as a factual allegation. Twombly , 550 U.S. at 555, 127 S.Ct. 1955. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937. Although the plaintiff is not required to provide "detailed factual allegations" to survive dismissal, "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678, 129 S.Ct. 1937 ; Twombly , 550 U.S. at 555, 127 S.Ct. 1955.
DISCUSSION
Defendants seek dismissal of all claims against them for at least three reasons: (i) Failure to allege any "direct physical loss of or physical damage to" their properties, which is required for all forms of coverage Plaintiffs seek; (ii) with respect to the civil authority coverage, failure to allege any government prohibition against public access to their hotels with respect to the civil authority coverage; and (iii) with respect to the Virus Endorsement coverage, failure to allege a specified cause of loss as defined by that coverage. In response, Plaintiffs assert that Defendants’ interpretation of the Policies would render coverage under the policy "illusory" in violation of state law.
The Court need only address Defendants’ first ground for dismissal. For the reasons that follow, the Court holds that it is bound by the Eleventh Circuit's authoritative interpretation of "direct physical loss of or damage to" under Georgia law in an analogous context, and consequently must find that the Policies do not provide coverage for the losses at issue. See Henry's La. Grill, Inc. v. Allied Ins. Co. of Am. , 35 F.4th 1318, 1319 (11th Cir. 2022). Moreover, the Court finds that the coverage provided by the Policies is not illusory despite a lack of coverage in this instance. Finally, the Court holds that Plaintiffs do not state claims for fraud or broker liability because the plain language of the Policies indicates that the losses in question are not covered.
The parties agree that Georgia law applies to this dispute. (Br. Supp. Hartford Motion at 7 n.2, Doc. 81-1; 2d. Am. Compl. ¶ 5, Doc. 69).
This Court is bound by the Eleventh Circuit's interpretation of Georgia law absent a subsequent state appellate court decision or statutory amendment. Great Am. E & S Ins. Co. v. Sadiki , 170 F. App'x 632, 634 (11th Cir. 2006) ("Once a panel of this Court has settled on the state law to be applied in a diversity case, the precedent should be followed by other panels ... absent a subsequent state court decision or statutory amendment which makes this Court's decision clearly wrong.") (quoting Lee v. Frozen Food Express, Inc. , 592 F.2d 271, 272 (5th Cir. 1979)).
I. The Meaning of "Direct Physical Loss of or Physical Damage"
Regardless of whether Plaintiffs seek coverage under the insuring agreement, the civil authority coverage, or the Virus Endorsement, Plaintiffs must show "direct physical loss of or damage" to property in order to demonstrate a covered loss. (2d Am. Compl. ¶ 12, Doc. 69) ("We will pay ... for the actual loss of Business Income you sustain and the actual, necessary and reasonable Extra Expense you incur due to the necessary interruption of your business operations during the Period of Restoration due to direct physical loss of or direct physical damage to property," "This insurance [applies when] ... access to your "Scheduled Premises" is specifically prohibited by order of a civil authority as the direct result of a Covered Cause of Loss [which is defined as "direct physical loss or direct physical damage that occurs during the Policy Period and in the Coverage Territory unless the loss or damage is excluded or limited in this policy]," "We will pay for loss or damage by "fungus", wet rot, dry rot, bacteria and virus. As used in this Limited Coverage, the term loss or damage means ... Direct physical loss or direct physical damage to Covered Property caused by "fungus", wet rot, dry rot, bacteria or virus, including the cost of removal of the "fungus", wet rot, dry rot, bacteria or virus ....").
Plaintiffs assert that this language creates an "all-risks" policy and has been historically understood as a "broad grant of coverage." (Pls.’ Resp. to Hartford Motion ¶ 16, Doc. 90-1). They point to a myriad of extrinsic evidence about the meaning of these words, including industry practices and extraneous statements by Hartford in other contexts (Id. ¶ 4), but the Eleventh Circuit has already foreclosed this sort of inquiry into the meaning of the Policies. Henry's La. Grill , 35 F.4th at 1320 ("We interpret the policy under Georgia law and ‘begin, as with any contract, with the text of the contract itself.’ ... We read the policy as a layman would read it.") (quoting Reed v. Auto-Owners Ins. Co. , 284 Ga. 286, 667 S.E.2d 90 (2008) and citing York Ins. Co. v. Williams Seafood of Albany, Inc. , 273 Ga. 710, 544 S.E.2d 156 (2001) ).
In Henry's Louisiana Grill , the Eleventh Circuit, faced with identical contract language, held that "under Georgia law, a ‘direct physical loss’ always involves a tangible change to a property." 35 F.4th at 1320–21. It therefore ruled that a policy which "insured against the ‘physical loss of or damage to’ ... property ... does not extend to the intangible harm caused by Covid-19 or by a declaration of public emergency issued in its wake." Id. at 1321. The Eleventh Circuit later clarified that Henry's Louisiana Grill stood for the proposition that "contamination of the covered premises by COVID-19 ... is not a tangible harm." AIKG, LLC v. Cincinnati Ins. Co. , No. 21-13506, 2022 WL 2252287, at *2 (11th Cir. June 23, 2022) (citing Henry's La. Grill , 35 F.4th at 1318 ).
Plaintiffs do not plausibly allege that the COVID-19 pandemic or the presence of the SARS-CoV-2 virus caused any tangible loss to the property. In footnote 5 of their Response to the Hartford Motion, Plaintiffs attempt to address this deficiency:
Hartford alleges that Plaintiffs have failed to allege direct physical loss or direct physical damage to property. The factual framework of the complaint detailed in paragraphs 14 through 31 represents an exhaustive review of why the COVID-19 novel coronavirus is considered to be a cause of physical loss or property damage. While Hartford may see the whole of the same to be a self-serving conclusion, the factual matter or framework is the product of an intensive review and reasonable thought process for the very purpose to ensure that it would not be conclusory and would not ask the Court to assume the allegations were drawn from factual thin air.
Moreover, in paragraph 37 of the amended complaint, Plaintiffs state they "did suffer ‘direct physical loss’ and ‘direct physical damage,’ " because they removed the virus – just as the endorsement allows – by extraordinary cleaning and disinfecting protocols of every conceivable surface or thing one might find in a hotel. This point cannot be made strongly enough: coverage is allowed by the virus endorsement for removal of a virus and the tearing out and replacing any part of a building necessary to gain access to a virus and the cost of testing performed after removal if there is reason to believe the virus remains present.
(Pls.’ Resp. to Hartford Motion ¶ 18, n.5, Doc. 90-1).
Plaintiffs’ point essentially boils down to an argument that removal of the virus constitutes direct physical loss or damage. But the Eleventh Circuit has already made clear that "increased cleaning and sanitation costs" do not "constitute ‘direct loss to property at premises.’ " AIKG, LLC , No. 21-13506, 2022 WL 2252287, at *2. Accordingly, the Policies, including the Virus Endorsement, do not provide coverage for the losses at issue. Having arrived at this interpretation of the Policies, the Court next considers whether this renders coverage under the Policies illusory.
Plaintiffs point out that the Virus Endorsement specifically covers "the cost of removal of the ‘fungus’, wet rot, dry rot, bacteria or virus" and therefore anticipates that the presence of the virus can be a tangible physical loss. However, in context, the Virus Endorsement provides
We will pay for loss or damage by "fungus", wet rot, dry rot, bacteria and virus. As used in this Limited Coverage, the term loss or damage means: ....
Direct physical loss or direct physical damage to Covered Property caused by "fungus", wet rot, dry rot, bacteria or virus, including the cost of removal of the "fungus", wet rot, dry rot, bacteria or virus ....
(2d Am. Compl. ¶ 12, Doc. 69) (emphasis added). The Policies’ use of "including" after "[d]irect physical loss or direct physical damage" indicates that coverage for costs of removal goes part and parcel with the requirement of a tangible physical harm because "[t]o ‘include’ is to ‘contain’ or ‘comprise as part of a whole.’ " Chickasaw Nation v. United States , 534 U.S. 84, 89, 122 S.Ct. 528, 151 L.Ed.2d 474 (2001).
The Virus Endorsement also covers "[t]he cost to tear out and replace any part of the building or other property as needed to gain access to the "fungus", wet rot, dry rot, bacteria or virus; and ... "[t]he cost of testing performed after removal, repair, replacement or restoration of the damaged property is completed, provided there is a reason to believe that ‘fungus’, wet rot, dry rot, bacteria or virus are present," but Plaintiffs have made no allegations that they have torn out and replaced any party of the building or engaged in any form of testing of the property.
II. Application of Illusory Coverage Doctrine
Plaintiffs argue that they purchased the Virus Endorsement specifically for coverage for virus-related injuries, but that the policy as written and interpreted would not actually cover any viral harm, in defiance of the reasonable expectations of the policyholders. (Pls.’ Resp. to Hartford Motion ¶ 3, Doc. 90-1). Plaintiffs argue that this renders the Policies and Virus Endorsement impermissibly illusory.
"[U]nder Georgia law, an insurance policy may not purport to offer coverage that inevitably will be defeated by one of the policy's exclusions—in other words, the policy may not offer coverage that is chimerical." Cynergy, LLC v. First Am. Title Ins. Co. , 706 F.3d 1321, 1327 (11th Cir. 2013) (citations omitted). "[A]n insurance policy is only illusory when it results in a complete lack of any policy coverage." G&A Fam. Enters. v. Am. Fam. Ins. Co. , No. 1:20-cv-3192-JPB, 2021 WL 1947180, at *6 (N.D. Ga. May 13, 2021).
The parties focused their briefing on the illusory coverage issue on the requirement under the Virus Endorsement that the "fungus", wet or dry rot, bacteria or virus be the result of a "specified cause of loss" other than fire or lightning. As noted above, the Policies define "Specified Causes of Loss" to mean "fire; lightning; explosion; windstorm or hail; smoke; aircraft or vehicles; riot or civil commotion; vandalism; "Sinkhole Collapse"; "Volcanic Action"; falling objects; weight of snow, ice or sleet; water damage, "Sprinkler Leakage"; "Theft"; or "Building Glass" breakage." (2d Am. Compl. ¶ 12, Doc. 69). However, the parties’ arguments regarding the impossibility of a virus being caused by a "specified cause of loss" map neatly onto the similar argument that a virus is unlikely to cause tangible physical harm to property.
First, as Hartford points out, the endorsement also covers "fungus", wet or dry rot in addition to bacteria or virus damage. The Court does not struggle to envision a scenario where water damage or sprinkler leakage could lead to wet rot that physically damages the building and requires removal, and Plaintiffs cannot seriously dispute that some formulation of the endorsement provides coverage in some circumstances. As another judge in this district observed, [e]xcluding one potential cause of loss does not render coverage illusory when other potential covered causes still exist." G&A Fam. Enters. , No. 1:20-CV-3192-JPB, 2021 WL 1947180, at *6.
But even assuming without deciding that a policy could be illusory as to one category of covered loss, Plaintiffs failed to respond to Hartford's proffered case regarding an example of a virus-related loss that would be covered under the Virus Endorsement. See Curtis O. Griess & Sons, Inc. v. Farm Bureau Ins. Co. of Nebraska , 247 Neb. 526, 528 N.W.2d 329, 333 (1995). That case, which reads like a law school examination, involved a tornado that cut through a swine quarantine and into a policyholder's farm, infecting the farmer's pigs with a virus which caused death or damage to the pigs. Id. at 331. Courts around the country have pointed to this case as the seminal example of a covered viral loss. (See Reply Supp. Hartford Motion at 12 n.3, Doc. 93) (identifying cases). The Court acknowledges that this is not a particularly palpable example to point to in the context of the Greater Atlanta Metropolitan area, but Plaintiffs cannot simply leave Hartford's argument unanswered. Consequently, the Court cannot say that the Virus Endorsement "results in a complete lack of any policy coverage," and therefore must grant Hartford's motion as to Plaintiff's breach of contract claim. G&A Fam. Enters. , No. 1:20-cv-3192-JPB, 2021 WL 1947180, at *6.
III. Plaintiff's Remaining Claims
Having ruled that Plaintiffs’ losses were not covered under the plain language of the Policies, the Court can quickly dispose of the remainder of Plaintiffs’ claims. Plaintiffs’ bad faith claims fail because such claims only are available "[i]n the event of a loss which is covered by a policy of insurance." O.C.G.A. § 33-4-6(a). Plaintiffs’ fraud claim fails because "[t]he unambiguous terms of the insurance policy preclude [Plaintiffs] from claiming justifiable reliance on the alleged misrepresentations." C&C Fam. Tr. 04/04/05 v. AXA Equitable Life Ins. Co. , 654 F. App'x 429, 437 (11th Cir. 2016) (citing Raysoni v. Payless Auto Deals, LLC , 296 Ga. 156, 766 S.E.2d 24, 26 (2014) ). Plaintiffs’ broker liability claim similarly fails because "[w]here [an] insurance agent procures a requested policy and the insured fails to read it to determine what is covered, the agent is thereby insulated from liability." Martin v. Chasteen , 354 Ga.App. 518, 841 S.E.2d 157, 160 (2020) (citing Lavoi Corp. v. Nat. Fire Ins. of Hartford , 293 Ga.App. 142, 666 S.E.2d 387 (2008) ).
Plaintiffs essentially admit defeat on this count in footnote 5 of their response to the Marsh Motion when they purport to criticize Marsh's argument, writing: "The Marsh argument for all intents and purposes also says this: we knew the policy didn't provide coverage in the event of a viral pandemic and, if you – Plaintiffs – had bothered to read 600 pages rather than relying on our expertise, you would have known it too." (Pls.’ Resp. to Marsh Motion at 10 n.5, Doc. 89-1). Unfortunately, Marsh's argument accurately states Georgia law.
Conclusion
The Court must acknowledge that this is not an entirely satisfying outcome. Plaintiffs purchased a coverage endorsement for viruses that did not apply in a viral pandemic. Perhaps Plaintiffs’ policy arguments would prevail if addressed to the Georgia General Assembly.
For the reasons the Court gave above, it is
ORDERED that the Hartford Motion to Dismiss (Doc. 81) is GRANTED . It is
FURTHER ORDERED that the Marsh Motion to Dismiss (Doc. 82) is GRANTED and the Amended Marsh Motion to Dismiss (Doc. 84) is DENIED AS MOOT . It is
FURTHER ORDERED that this civil action be DISMISSED WITH PREJUDICE .
SO ORDERED this 14th day of July, 2022.