Elizabeth Benton, et al. v. Zurich American Insurance Company, et al.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 19-13252
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D.C. Docket No. 1:16-cv-02932-LMM

ELIZABETH BENTON,
BRUCE W. BENTON, JR.,
individually and as the personal administrator
of the Estate of Chase Palmer Benton,

Plaintiffs - Appellants,

versus

ZURICH AMERICAN INSURANCE COMPANY,
a foreign insurance company,
NORTHERN INSURANCE COMPANY OF NEW YORK,
a foreign insurance company,
MARYLAND CASUALTY COMPANY,
a foreign insurance company,
STEVEN LANDRESS,
individually,
d.b.a. Landress Trucking,
JOHN DOES,

Defendants - Appellees.

Case: 19-13252 Date Filed: 08/17/2020 Page: 1 of 3

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Appeal from the United States District Court
for the Northern District of Georgia
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(August 17, 2020)
Before JORDAN, LAGOA, and BRASHER, Circuit Judges.

PER CURIAM:
Following oral argument, and a review of the record, we affirm the district
court’s grant of summary judgment in favor of Zurich American Insurance
Company. First, we agree with the district court that Kerby Grading was not
operating as a motor carrier under O.C.G.A. § 46-1-1(9)(A)-(B) (2004) at the time
it submitted its insurance application to Zurich. Second, even if the evidence created
an issue of fact as to whether Kerby was operating as a motor carrier, Zurich did not
know this status given the information Kerby provided. See Sapp v. Canal Ins. Co.,
706 S.E.2d 644, 650 (Ga. 2011) (“[W]hen a insurer purports to issue coverage to an
insured which it knows is a motor carrier, the insurer assumes responsibility to
indemnify the motoring public for injuries sustained by virtue of the carrier’s
negligence . . . .”) (emphasis added). Third, at the time of the accident Mr. Landress
was driving a dump truck owned by Landress Trucking (not by Kerby). Fourth,
Georgia courts have not extended the equitable reformation rationale of Sapp to a
scenario like the one here involving the cancellation of a policy for non-payment.
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AFFIRMED.
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