ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY v. ROGERS et al

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
ALLSTATE VEHICLE AND PROPERTY
INSURANCE COMPANY,
Plaintiff,
vs.
SARAH COLEMAN ROGERS and DENNIS
C. THOMPSON, IV,
Defendants.
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CASE NO. 4:23-cv-156
O R D E R
This declaratory judgment action arises from a lawsuit filed
in 	a 	Georgia 	Superior 	Court 	by 	Sarah 	Coleman 	Rogers 	against
Defendant 	Dennis 	C. 	Thompson, 	IV.1 	In 	that 	suit, 	Rogers 	alleges
that Thompson invaded her privacy and caused her severe emotional
distress by installing hidden cameras in bathrooms and filming her
undressed, 	without 	her 	knowledge 	or 	consent. 	Plaintiff 	Allstate
Vehicle and Property Insurance Company asks this Court to declare
as 	a 	matter 	of 	law 	that 	it 	owes 	no 	duty 	to 	defend 	or 	indemnify
Thompson in the underlying tort suit. 	Thompson, on the other hand,
moves for a judgment that Allstate is obligated to defend him and
that Allstate’s request for a declaration on its duty to indemnify
1 	Plaintiff 	Allstate 	labeled 	its 	operative 	pleading 	a 	“Petition” 	and
refers 	to 	itself 	as 	the 	“Petitioner” 	and 	the 	opposing 	parties 	as
“Respondents.” 	Because the Federal Declaratory Judgment Act, 28 U.S.C.
§ 2201, does not mandate deviating from the usual “Plaintiff/Defendant”
designations, the Court retains those designations in this Order.
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should 	be 	dismissed 	as 	unripe. 	As 	explained 	in 	the 	remainder 	of
this Order, Allstate’s motion for summary judgment (ECF No. 32) is
granted to the extent that Allstate has no obligation to defend or
indemnify Defendant Thompson for the incident allegedly occurring
at 	his 	Sue 	Mack 	Drive 	residence. 	Defendant’s 	motion 	for 	summary
judgment 	(ECF 	No. 	33) 	is 	denied. 	Allstate’s 	claim 	seeking 	a
declaration of no coverage as to incidents allegedly occurring at
The Animal Farm restaurant is dismissed as having been abandoned.
SUMMARY JUDGMENT STANDARD
Summary 	judgment 	may 	be 	granted 	only 	“if 	the 	movant 	shows
that 	there 	is 	no 	genuine 	dispute 	as 	to 	any 	material 	fact 	and 	the
movant is entitled to judgment as a matter of law.” 	Fed. R. Civ.
P. 56(a). 	In 	determining 	whether 	a 	genuine 	dispute 	of 	material
fact exists to defeat a motion for summary judgment, the evidence
is viewed in the light most favorable to the party opposing summary
judgment, 	drawing 	all 	justifiable 	inferences 	in 	the 	opposing
party’s favor. 	Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). 	A fact is material if it is relevant or necessary to the
outcome of the suit. 	Id. at 248. 	A factual dispute is genuine if
the evidence would allow a reasonable jury to return a verdict for
the nonmoving party. 	Id.
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FACTUAL BACKGROUND
I. 	The Insurance Policy
Plaintiff 	Allstate 	Vehicle 	and 	Property 	Insurance 	Company
issued Defendant Dennis C. Thompson a homeowner’s insurance policy
covering his residence at 2822 Sue Mack Drive in Columbus, Georgia.
The 	Policy 	provided 	Family 	Liability 	Protection 	coverage 	with
limits 	of 	$300,000 	per 	occurrence 	and 	Guest 	Medical 	Protection
coverage 	with 	limits 	of 	$5,000 	per 	person. 	The 	Policy 	included
the following insuring agreements:
Losses We Cover Under [Family Liability Protection]:
Subject to the terms, conditions and limitations of this
policy, 	we 	will 	pay 	damages 	which 	an 	insured 	person
becomes 	legally 	obligated 	to 	pay 	because 	of 	bodily
injury or property damage arising from an occurrence to
which 	this 	policy 	applies, 	and 	is 	covered 	by 	this 	part
of the policy.
We 	may 	investigate 	or 	settle 	any 	claim 	or 	suit 	for
covered damages against an insured person. If an insured
person 	is 	sued 	for 	these 	damages, 	we 	will 	provide 	a
defense 	with 	counsel 	of 	our 	choice, 	even 	if 	the
allegations are groundless, false or fraudulent. . . .
Losses We Cover Under [Guest Medical Protection]:
We 	will 	pay 	the 	reasonable 	expenses 	incurred 	for
necessary medical, surgical, X-ray and dental services,
ambulance, 	hospital, 	licensed 	nursing 	and 	funeral
services, 	and 	prosthetic 	devices, 	eye 	glasses, 	hearing
aids, 	and 	pharmaceuticals. 	These 	expenses 	must 	be
incurred 	and 	the 	services 	performed 	within 	three 	years
from the date of an occurrence causing bodily injury to
which 	this 	policy 	applies, 	and 	is 	covered 	by 	this 	part
of the policy.
Pet. Ex. A, Policy 17, 19, ECF No. 1-1 at 35, 37. 	The Policy
defines “bodily injury” and “occurrence” as follows:
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Bodily 	injury 	– 	means 	physical 	harm 	to 	the 	body,
including 	sickness 	or 	disease, 	and 	resulting 	death,
except that bodily injury does not include:
a) any venereal disease;
b) herpes;
c) Acquired Immune Deficiency Syndrome (AIDS);
d) AIDS Related Complex (ARC);
e) Human Immunodeficiency Virus (HIV);
or any resulting symptom, effect, condition, disease, or
illness related to a) through e) listed above. . . .
* * *
Occurrence – means an accident, including continuous or
repeated 	exposure 	to 	substantially 	the 	same 	general
harmful 	conditions 	during 	the 	policy 	period, 	resulting
in bodily injury or property damage.
Id. 	at 	3, 	ECF 	No. 	1-1 	at 	21. 	The 	Policy 	also 	contains 	the
following intentional and criminal acts exclusion:
We 	do 	not 	cover 	any 	bodily 	injury 	or 	property 	damage
intended 	by, 	or 	which 	may 	reasonably 	be 	expected 	to
result 	from 	the 	intentional 	or 	criminal 	acts 	or
omissions of, any insured person. This exclusion applies
even if:
a) such 	insured 	person 	lacks 	the 	mental 	capacity 	to
govern his or her conduct;
b) such 	bodily 	injury 	or 	property 	damage 	is 	of 	a
different 	kind 	or 	degree 	than 	intended 	or 	reasonably
expected; or
c) such bodily injury or property damage is sustained by
a 	different 	person 	than 	intended 	or 	reasonably
expected.
This 	exclusion 	applies 	regardless 	of 	whether 	such
insured 	person 	is 	actually 	charged 	with, 	or 	convicted
of, a crime.
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Id. at 17-18, ECF No. 1-1 at 35-36.2
II. 	State Criminal Proceedings
In 	2022, 	Thompson 	was 	arrested 	after 	his 	business 	partner,
with 	whom 	he 	co-owned 	a 	restaurant 	called 	The 	Animal 	Farm 	in
Columbus, Georgia, contacted the Columbus police to alert them of
potential 	criminal 	activity. 	Following 	his 	arrest, 	Thompson 	was
charged in Harris County Superior Court with two counts of invasion
of privacy and two counts of photographing an individual’s clothing
and 	in 	Muscogee 	County 	Superior 	Court 	with 	thirty 	counts 	of
unlawful 	surveillance 	and 	six 	counts 	of 	sexual 	exploitation 	of
children. 	Thompson 	maintains 	his 	innocence 	as 	to 	these 	charges,
which remain pending.
III. The Rogers Lawsuit
On 	December 	14, 	2022, 	Thompson’s 	counsel 	forwarded 	a 	letter
to 	Allstate 	from 	an 	attorney 	representing 	Sarah 	Coleman 	Rogers.
The 	letter 	stated 	that 	Rogers 	was 	“secretly 	recorded 	in 	the
bathroom” 	of 	Thompson’s 	residence 	at 	Sue 	Mack 	Drive 	and 	that 	she
“intend[ed] 	to 	seek 	damages 	pursuant 	to 	Georgia 	law 	against 	all
responsible parties.” 	Pl.’s Mot. Summ. J. Ex. D, Rogers’s Attorney
Letter 1 (Oct. 18, 2022), ECF No. 32-6 at 8. 	Several months later,
on 	April 	11, 	2023, 	Rogers’s 	attorney 	sent 	a 	second 	letter 	to
2 	Although 	the 	Court 	cites 	only 	the 	exclusion 	for 	Family 	Liability
Protection coverage, the exclusion is identical in all material respects
to that for Guest Medical Protection coverage. 	Id. at 19, ECF No. 1-1
at 37.
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Thompson, 	this 	time 	disclosing 	that 	Rogers 	was 	secretly 	recorded
by Thompson in a bathroom at his father’s residence in addition to
the 	Sue 	Mack 	Drive 	home 	and 	demanded 	that 	Thompson 	pay 	Rogers
$200,000 	as 	a 	settlement 	for 	any 	claims 	she 	might 	bring 	against
him. 	The letter was forwarded to Allstate the same day along with
a 	cover 	page 	specifying 	that 	the 	“Date 	of 	Incident(s)” 	was 	“June
2022.” 	Pl.’s Mot. Summ. J. Ex. E, Demand Letter, ECF No. 32-7 at
2.
On 	June 	7, 	2023, 	Rogers 	filed 	a 	lawsuit 	against 	Thompson 	in
the Superior Court of Harris County, alleging claims for invasion
of 	privacy, 	intrusion 	upon 	seclusion, 	and 	intentional 	infliction
of emotional distress. 	In Count I of her complaint, Rogers alleges
that 	she 	spent 	the 	night 	at 	Thompson’s 	Sue 	Mack 	Drive 	residence
while 	working 	as 	his 	dog 	sitter, 	that 	she 	“disrobed 	and 	showered
in 	the 	bathroom 	in 	which 	[Thompson] 	designated 	her 	to 	use,” 	and
that Thompson “installed hidden cameras in said bathroom and filmed
[Rogers] undressed” without her knowledge or consent. 	Pl.’s Mot.
Summ. 	J. 	Ex. 	F, 	Rogers 	Compl. 	¶¶ 	8-11, 	ECF 	No. 	32-8. 	Rogers
further 	alleges 	that 	when 	law 	enforcement 	informed 	her 	she 	was
“secretly 	recorded” 	by 	Thompson, 	she 	endured 	“severe 	emotional
distress, pain and anguish and still does so.” 	Id. ¶ 14. 	Although
the Complaint does not specify the amount of compensatory damages
sought, 	it 	notes 	that 	Rogers 	“incurred 	approximately 	$300.00 	in
expenses” for counseling sessions and asserts a claim for punitive
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damages. 	Id. 	¶¶ 	15, 	17. 	Thompson 	denies 	Rogers’s 	allegations,
and her suit against him remains pending.
DISCUSSION
Allstate 	filed 	this 	action 	seeking 	a 	declaration 	that 	the
Policy provides no coverage to Thompson for Rogers’s claims arising
from the incidents at Sue Mack Drive or any claims arising out of
alleged 	incidents 	of 	illegal 	surveillance 	at 	The 	Animal 	Farm
Restaurant.3 	Currently 	before 	the 	Court 	are 	the 	parties’ 	cross-
motions for summary judgment. 	In its motion, Allstate argues that
it 	has 	no 	duty 	to 	defend 	or 	indemnify 	Thompson 	under 	the 	Policy.
Thompson, on the other hand, seeks summary judgment in his favor,
contending that (1) the Court lacks subject matter jurisdiction to
hear this action, (2) Allstate’s duty to indemnify is unripe, (3)
the 	Court 	should 	abstain 	from 	exercising 	jurisdiction 	over 	this
action, 	(4) 	Rogers’s 	tort 	claims 	are 	covered 	by 	the 	Policy, 	and
(5) 	Allstate 	cannot 	prevail 	on 	its 	claims 	involving 	The 	Animal
Farm 	because 	it 	did 	not 	join 	that 	entity 	as 	a 	party. 	The 	Court
addresses each argument below.
I. 	Jurisdiction
Thompson 	makes 	several 	arguments 	regarding 	whether 	this
action 	is 	justiciable, 	so 	the 	Court 	must 	address 	them 	at 	the
3 	Allstate 	also 	joined 	Rogers 	as 	a 	party 	to 	this 	suit 	and 	sought 	a
declaration 	that 	it 	owed 	her 	no 	coverage 	under 	the 	Policy. 	Rogers
subsequently 	consented 	to 	an 	entry 	of 	judgment 	on 	Allstate’s 	claims
against her (ECF No. 13).
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outset. 	Specifically, Thompson argues that (1) this action fails
for 	lack 	of 	subject 	matter 	jurisdiction 	under 	28 	U.S.C. 	§ 	1332
because 	the 	amount 	in 	controversy 	is 	not 	met 	and 	(2) 	the 	Court
should decline to exercise jurisdiction over this action in light
of the civil and criminal proceedings pending in state court. 	The
Court takes each argument in turn.
A. 	Does the Court Have Subject Matter Jurisdiction?
“An action under the Declaratory Judgment Act, ‘does not, of
itself, 	confer 	jurisdiction 	upon 	the 	federal 	courts’; 	therefore,
‘a 	suit 	brought 	under 	the 	Act 	must 	state 	some 	independent 	source
of 	jurisdiction, 	such 	as 	the 	existence 	of 	diversity 	or 	the
presentation of a federal question.’” 	Sellers v. Nationwide Mut.
Fire Ins. Co., 968 F.3d 1267, 1273 (11th Cir. 2020) (quoting Borden
v. 	Katzman, 	881 	F.2d 	1035, 	1037 	(11th 	Cir. 	1989)). 	Allstate
brought 	this 	declaratory 	judgment 	action 	asserting 	jurisdiction
under 28 U.S.C. § 1332. 	Subject matter jurisdiction exists under
that 	statute 	if 	the 	action 	(1) 	is 	between 	citizens 	of 	different
states and (2) the amount in controversy exceeds $75,000, exclusive
of 	interests 	and 	costs. 	It 	is 	undisputed 	that 	diversity 	of
citizenship 	exists. 	Thompson 	contends, 	however, 	that 	the 	amount
in controversy does not exceed $75,000 because Rogers’s complaint
does not specify the amount of damages she seeks.
“When a plaintiff seeks . . . declaratory relief, the amount
in 	controversy 	is 	the 	monetary 	value 	of 	the 	object 	of 	the
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litigation from the plaintiff’s perspective.” 	Federated Mut. Ins.
Co. 	v. 	McKinnon 	Motors, 	LLC, 	329 	F.3d 	805, 	807 	(11th 	Cir. 	2003)
(quoting Cohen v. Off. Depot, Inc., 204 F.3d 1069, 1077 (11th Cir.
2000)). 	And 	when 	an 	insurer 	seeks 	a 	judgment 	declaring 	that 	its
policy 	affords 	no 	coverage, 	that 	value 	includes 	the 	costs
associated 	with 	defending 	an 	underlying 	action 	against 	the
insured. 	See Stonewall Ins. Co. v. Lopez, 544 F.2d 198, 199 (5th
Cir. 	1976) 	(“The 	pecuniary 	value 	of 	the 	obligation 	to 	defend 	the
separate 	lawsuit 	is 	properly 	considered 	in 	determining 	the
existence of the jurisdictional amount.”) (per curiam).4
Here, 	Allstate 	placed 	evidence 	in 	the 	record 	that 	it 	has
incurred 	over 	$49,317.10 	in 	connection 	with 	the 	defense 	of 	the
Rogers 	suit 	since 	its 	inception 	in 	2023 	and 	anticipates 	further
costs 	of 	$35,000-$50,000 	if 	it 	is 	found 	to 	owe 	a 	duty 	to 	defend
and 	the 	Rogers 	case 	proceeds 	to 	trial. 	Ferguson 	Decl. 	¶ 	3, 	ECF
No. 	39-1. 	As 	such, 	it 	is 	reasonable 	to 	deduce 	that 	the 	entire
cost 	of 	defending 	that 	suit 	would 	exceed 	$75,000. 	See 	Roe 	v.
Michelin 	N. 	Am., 	Inc., 	613 	F.3d 	1058, 	1061-62 	(11th 	Cir. 	2010)
(noting 	that 	district 	courts 	are 	permitted 	to 	make 	“reasonable
deductions, 	reasonable 	inferences, 	or 	other 	reasonable
extrapolations” 	in 	determining 	the 	amount 	in 	controversy). 	The
4 	In 	Bonner 	v. City 	of 	Prichard, 	661 F.2d 	1206, 	1207 (11th 	Cir. 	1981)
(en 	banc), 	the 	Eleventh 	Circuit 	adopted 	as 	binding 	precedent 	all
decisions of the former Fifth Circuit handed down prior to the close of
business on September 30, 1981.
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Court accordingly finds that the amount in controversy is met and
will not dismiss this action for lack of diversity jurisdiction.
B. 	Should the Court Exercise Jurisdiction over This Action?
Having 	determined 	that 	it 	has 	subject 	matter 	jurisdiction
over Allstate’s claims, the Court next must decide whether it will
exercise that jurisdiction. 	“[D]istrict courts possess discretion
in 	determining 	whether 	and 	when 	to 	entertain 	an 	action 	under 	the
Declaratory 	Judgment 	Act, 	even 	when 	the 	suit 	otherwise 	satisfies
subject 	matter 	jurisdictional 	prerequisites.” 	Wilton 	v. 	Seven
Falls 	Co., 	515 	U.S. 	277, 	282 	(1995); 	see 	28 	U.S.C. 	§ 	2201(a)
(providing that “any court of the United States . . . may declare
the 	rights 	and 	other 	legal 	relations 	of 	any 	interested 	party
seeking 	such 	declaration.”) 	(emphasis 	added). 	Thompson 	argues
that 	the 	Court 	should 	refuse 	to 	exercise 	jurisdiction 	over 	this
action in light of the pending state civil and criminal proceedings
against him.
In 	Ameritas 	Variable 	Life 	Ins. 	Co. 	v. 	Roach, 	the 	Eleventh
Circuit provided a list of factors for district courts to consider
when 	determining 	whether 	to 	exercise 	jurisdiction 	over 	a
declaratory 	judgment 	action 	where 	another 	action 	is 	concurrently
pending in state court:
(1) 	the 	strength 	of 	the 	state’s 	interest 	in 	having 	the
issues raised in the federal declaratory action decided
in the state courts;
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(2) 	whether 	the 	judgment 	in 	the 	federal 	declaratory
action would settle the controversy;
(3) 	whether 	the 	federal 	declaratory 	action 	would 	serve
a 	useful 	purpose 	in 	clarifying 	the 	legal 	relations 	at
issue;
(4) whether the declaratory remedy is being used merely
for 	the 	purpose 	of 	“procedural 	fencing”—that 	is, 	to
provide 	an 	arena 	for 	a 	race 	for 	res 	judicata 	or 	to
achieve 	a 	federal 	hearing 	in 	a 	case 	otherwise 	not
removable;
(5) 	whether 	the 	use 	of 	a 	declaratory 	action 	would
increase 	the 	friction 	between 	our 	federal 	and 	state
courts and improperly encroach on state jurisdiction;
(6) whether there is an alternative remedy that is better
or more effective;
(7) whether the underlying factual issues are important
to an informed resolution of the case;
(8) whether the state trial court is in a better position
to 	evaluate 	those 	factual 	issues 	than 	is 	the 	federal
court; and
(9) whether there is a close nexus between the underlying
factual 	and 	legal 	issues 	and 	state 	law 	and/or 	public
policy, 	or 	whether 	federal 	common 	or 	statutory 	law
dictates 	a 	resolution 	of 	the 	declaratory 	judgment
action.
411 	F.3d 	1328, 	1331 	(11th 	Cir. 	2005) 	(per 	curiam). 	The 	list 	is
non-exhaustive, and no one factor is controlling. 	Id.; see James
River 	Ins. 	Co. 	v. 	Rich 	Bon 	Corp., 	34 	F.4th 	1054, 	1060 	(11th 	Cir.
2022) 	(explaining 	that 	an 	inquiry 	under 	Ameritas 	functions 	as 	a
“totality-of-the-circumstances 	analysis” 	in 	which 	a 	Court 	must
“capture 	the 	breadth 	of 	the 	competing 	interests” 	and 	“properly
balance them”).
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Pointing 	to 	factor 	one, 	Thompson 	argues 	that 	Georgia 	has 	an
interest in deciding the issues in this declaratory judgment action
because Rogers and Thompson are residents of Georgia and the civil
and 	criminal 	proceedings 	brought 	against 	Thompson 	under 	Georgia
law are pending in that state’s courts. 	Thompson further reasons
that, 	under 	factor 	six, 	Allstate 	could 	refile 	its 	declaratory
judgment action in a Georgia state court and request consolidation
of 	it 	with 	Rogers’s 	tort 	suit. 	Invoking 	factors 	five 	and 	nine,
Thompson 	also 	notes 	that 	Georgia 	courts 	have 	not 	ruled 	in 	a 	case
factually analogous to the current action.
The 	Court 	finds 	that 	this 	action 	is 	a 	routine 	insurance
coverage 	case 	and 	thus 	does 	not 	involve 	a 	novel 	and 	unresolved
question 	of 	state 	law. 	Cf. 	Nat'l 	Tr. 	Ins. 	Co. 	v. 	S. 	Heating
Cooling 	Inc., 	12 	F.4th 	1278, 	1289 	(11th 	Cir. 	2021) 	(affirming
district court’s decision to dismiss a declaratory judgment action
where it involved “an unresolved issue” under the state’s contract
law 	of 	“whether 	carbon 	monoxide 	qualified 	as 	a 	pollutant”). 	As
such, the Court concludes that Georgia’s interest in entertaining
this 	action 	is 	outweighed 	by 	the 	interest 	in 	achieving 	a 	prompt
liability 	determination 	in 	the 	present 	forum. 	“[A]llowing 	a
declaratory 	action 	by 	an 	insurer 	to 	establish 	nonliability 	under
casualty insurance was one of the prime purposes of the Declaratory
Judgment 	Act,” 	and 	insurers 	like 	Allstate 	“reasonably 	expect 	the
federal 	courts 	to 	resolve 	run-of-the-mill 	disputes 	about 	their
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duties to defend and indemnify against claims made in an underlying
tort 	action.” 	Nautilus 	Ins. 	Co. 	v. 	Captain 	Pip's 	Holdings, 	LLC,
No. 	24-12440, 	2025 	WL 	2111805, 	at 	*2 	(11th 	Cir. 	July 	29, 	2025)
(per curiam) (quoting James River, 34 F.4th at 1062)(Brasher, J.,
concurring). 	The Court further finds that it would be uneconomical
to 	dismiss 	this 	action, 	especially 	where 	the 	parties 	have 	spent
the 	last 	two 	years 	litigating 	the 	issue 	of 	Allstate’s 	liability.
See James River, 34 F.4th at 1058-1062 (noting the “valuable role”
declaratory 	judgments 	play 	in 	“clarifying 	insurance 	companies’
liability quickly and directly” and 	instructing the district court
on remand to consider “efficiency interests in the balance against
[] federalism and comity interests”).
As 	for 	factors 	two 	and 	three, 	a 	declaration 	in 	this 	action
would 	settle 	the 	question 	regarding 	Allstate’s 	duties 	to 	defend
and 	indemnify 	Thompson 	in 	the 	underlying 	tort 	suit, 	thereby
clarifying the legal relations between the parties. 	And although
Thompson 	contends 	in 	pointing 	to 	factors 	seven 	and 	eight 	that 	a
state court would have better access to any facts which may develop
in 	the 	ongoing 	civil 	and 	criminal 	proceedings, 	further 	factual
development 	at 	this 	stage 	is 	irrelevant 	since, 	as 	discussed 	more
fully below, “[a]n insurer’s duty to defend” under Georgia law is
determined by “comparing the allegations of the complaint with the
provision of the policy.” 	Cont'l Cas. Co. v. Winder Lab'ys, LLC,
73 	F.4th 	934, 	941 	(11th 	Cir. 	2023) 	(quoting 	Pilz 	v. 	Monticello
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Ins. 	Co., 	599 	S.E.2d 	220, 	221 	(Ga. 	Ct. 	App. 	2004)). 	Thus, 	the
Court finds that the present circumstances do not justify a refusal
to 	exercise 	jurisdiction 	in 	this 	action.5 	Thompson’s 	motion 	to
dismiss on Ameritas grounds is accordingly denied.
II. 	Allstate’s Claims
A. 	Duty to Defend
The 	parties 	do 	not 	dispute 	that 	this 	diversity 	action 	is
governed 	by 	Georgia 	law. 	In 	Georgia, 	“[a]n 	insurer’s 	duty 	to
defend is determined by ‘comparing the allegations of the complaint
with 	the 	provision 	of 	the 	policy.’” 	Cont’l 	Cas. 	Co.,73 	F.4th 	at
941 	(quoting 	Pilz, 	599 	S.E.2d 	at 	221). 	“Thus, 	the 	issue 	is 	not
whether 	the 	insured 	is 	actually 	liable 	to 	the 	plaintiff[] 	in 	the
underlying action; the issue is whether a claim has been asserted
which 	falls 	within 	the 	policy 	coverage 	and 	which 	the 	insurer 	has
a 	duty 	to 	defend.” 	Bituminous 	Cas. 	Corp. 	v. 	N. 	Ins. 	Co. 	of 	N.Y.,
548 S.E.2d 495, 497 (Ga. Ct. App. 2001). 	“If the facts as alleged
in 	the 	complaint 	even 	arguably 	bring 	the 	occurrence 	within 	the
policy’s 	coverage, 	the 	insurer 	has 	a 	duty 	to 	defend 	the 	action.”
City 	of 	Atlanta 	v. 	St. 	Paul 	Fire 	& 	Marine 	Ins. 	Co., 	498 	S.E.2d
782, 784 (Ga. Ct. App. 1998).
5 Thompson concedes that factor four, whether “the declaratory remedy is
being used merely 	for the purpose 	of 	‘procedural fencing,’” is not 	at
issue. 	Ameritas Variable Life Ins. Co. v. Roach, 411 F.3d 1328, 1331
(11th Cir. 2005) (per curiam).
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The Policy provides that it covers “damages which an insured
person 	becomes 	legally 	obligated 	to 	pay 	because 	of 	bodily 	injury
or 	property 	damage 	arising 	from 	an 	occurrence.”6 	Policy 	17, 	ECF
No. 	1-1 	at 	35. 	“Bodily 	injury” 	is 	defined 	in 	the 	Policy 	as
“physical 	harm 	to 	the 	body, 	including 	sickness 	or 	disease, 	and
resulting 	death.” 	Id. 	at 	3, 	ECF 	No. 	1-1 	at 	21. 	In 	Georgia,
“bodily 	injury” 	as 	used 	in 	insurance 	contracts 	means 	“physical
injury 	to 	the 	body.” 	Presidential 	Hotel 	v. 	Canal 	Ins. 	Co., 	373
S.E.2d 	671, 	672 	(Ga. 	Ct. 	App. 	1988). 	Bodily 	injury 	“does 	not
include 	non-physical, 	emotional 	or 	mental 	harm” 	and 	“cannot 	be
equated with the broader term ‘personal injury.’” 	Id. 	Therefore,
Rogers’s 	complaint 	must 	allege 	that 	she 	suffered 	some 	kind 	of
physical injury to her person to trigger Allstate’s duty to defend.
Rogers’s complaint, however, does not allege that Rogers suffered
from 	any 	bodily 	injury 	but 	rather 	that 	she 	“endured 	severe
emotional distress, pain and anguish.” 	Rogers Compl. ¶ 14.
Thompson 	argues, 	first, 	that 	“[t]he 	Policy 	does 	not 	specify
that 	actual 	physical 	injury 	or 	trauma 	is 	required 	to 	trigger
[Allstate]’s duty to defend,” and second, that “the type of conduct
alleged” 	in 	Rogers’s 	complaint 	“could 	result 	in 	‘sickness 	or
disease’ in a somatic or psychological form.” Def.’s Mot. Summ. J.
6 Neither party argues that Thompson’s alleged actions at the Sue Mack
Drive residence resulted in property damage.
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7, ECF No. 33-1.7 	Thompson’s arguments effectively ask the Court
to 	rewrite 	both 	the 	Policy 	and 	the 	Complaint. 	“If 	a 	policy’s
language 	is 	unambiguous, 	the 	contract’s 	plain 	terms 	must 	be
enforced.” 	Auto-Owners 	Ins. 	Co. 	v. 	Ovation 	Condo. 	Ass'n, 	Inc.,
No. 	23-13111, 	2024 	WL 	2723192, 	at 	*2 	(11th 	Cir. 	May 	28, 	2024)
(applying Georgia law). 	Again, the Policy plainly states that it
covers 	damages 	that 	Thompson 	“becomes 	legally 	obligated 	to 	pay
because 	of 	bodily 	injury 	. 	. 	. 	arising 	from 	an 	occurrence,” 	and
the Policy defines “bodily injury” as “physical harm to the body.”
Policy 	3, 	17, 	ECF 	No. 	1-1 	at 	21, 	35 	(emphasis 	added). 	The 	Court
may not “strain the construction of the policy” to makes its terms
ambiguous 	when 	they 	are 	not. 	State 	Farm 	Mut. 	Auto. 	Ins. 	Co. 	v.
Staton, 	685 	S.E.2d 	263, 	266-67 	(Ga. 	Ct. 	App. 	2009). 	As 	for 	the
Complaint, 	Rogers 	does 	not 	allege 	that 	she 	suffered 	“sickness 	or
disease” as a result of her emotional distress, and the Court may
not 	redraft 	the 	Complaint 	to 	include 	any 	such 	allegation. 	Thus,
because Rogers has not alleged any physical injury to her person,
the 	Policy 	provides 	no 	coverage 	for 	Allstate 	to 	defend 	the
underlying tort suit.
7 Thompson also argues that the Court should dismiss this action because
Allstate did not include Rogers’s complaint with its initial Petition.
Allstate, 	however, 	attached 	the 	Complaint 	as 	an 	exhibit 	to 	its 	motion
for summary judgment, and Thompson did not specify how he was prejudiced
by this later inclusion of a complaint that was against him. 	Thus, the
Court will not dismiss this action on that basis.
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Even if Rogers had alleged a bodily injury, that injury must
“aris[e] 	from 	an 	‘occurrence.’” 	Policy 	17, 	ECF 	No. 	1-1 	at 	35.
The Policy defines “occurrence” as “an accident . . . resulting in
bodily injury.” 	Id. at 3, ECF No. 1-1 at 21. 	Although “accident”
is not defined in the Policy, Georgia law defines that word as “an
event which takes place without one’s foresight or expectation or
design.” 	O.C.G.A. § 1-3-3(2). 	“The question of whether an event
took place without one’s foresight, expectation or design must be
asked from the viewpoint of the insured.” 	Rucker v. Columbia Nat.
Ins. 	Co., 	705 	S.E.2d 	270, 	273–74 	(Ga. 	Ct. 	App. 	2010). 	Thompson
argues that Rogers’s complaint does not allege any facts “showing
intentional conduct by Thompson.” 	Def.’s Resp. to Pet. Mot. Summ.
J. 	16, 	ECF 	No. 	36. 	But 	Rogers 	alleges 	that 	she 	“disrobed 	and
showered 	in 	the 	bathroom 	[Thompson] 	designated 	her 	to 	use,” 	that
Thompson 	“installed 	hidden 	cameras 	in 	said 	bathroom 	and 	filmed
[Rogers] 	undressed,” 	and 	that 	Thompson’s 	conduct 	was
“intentional.” 	Rogers 	Compl. 	¶¶ 	10-11, 	18. 	Rogers 	thus 	alleges
that 	Thompson 	expected 	to 	film 	Rogers 	undressed 	because 	he
intentionally placed a camera in a bathroom that he designated for
her 	use. 	Cf. 	Rucker, 	705 	S.E.2d 	at 	273-74. 	Therefore, 	even 	if
Rogers 	had 	alleged 	a 	“bodily 	injury” 	under 	the 	Policy 	(which 	she
did not), such injury does not arise from an “accident.”
For similar reasons, coverage is excluded under the Policy’s
intentional and criminal acts exclusion. 	That exclusion provides
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that 	the 	Policy 	does 	not 	cover 	“any 	bodily 	injury 	or 	property
damage intended by, or which may reasonably be expected to result
from the intentional or criminal acts or omissions of, any insured
person.” 	Policy 	17, 	ECF 	No. 	1-1 	at 	35. 	The 	exclusion 	applies
“regardless 	of 	whether 	such 	insured 	person 	is 	actually 	charged
with, or convicted of, a crime.” 	Id. at 18, ECF No. 1-1 at 36.
Once again, Rogers alleges that Thompson filmed her undressed
“[w]ithout her knowledge or consent.” 	Rogers Complaint ¶¶ 10-11.
Rogers alleges that Thompson’s actions were “intentional.” 	Id. ¶
18. 	Rogers 	asserts 	claims 	against 	Thompson 	for 	invasion 	of
privacy, 	intrusion 	upon 	seclusion, 	and 	intentional 	infliction 	of
emotional distress. 	These alleged acts are clearly not accidental
or 	negligent, 	and 	although 	Thompson 	argues 	that 	he 	has 	not 	been
“convicted” 	for 	any 	of 	the 	conduct 	Rogers 	alleges, 	the 	Policy’s
plain 	terms 	provide 	that 	the 	exclusion 	applies 	“regardless 	of
whether” 	Thompson 	is 	convicted 	of 	a 	crime. 	Def.’s 	Mot. 	Summ. 	J.
8, 	ECF 	No. 	33-1; 	Policy 	18, 	ECF 	No. 	1-1 	at 	36; 	see 	Cont'l 	Cas.
Co., 73 F.4th at 941 (quoting Fid. Nat’l Title Ins. Co. of N.Y. v.
OHIC 	Ins. 	Co., 	619 	S.E.2d 	704, 	706 	(Ga. 	Ct. 	App. 	2005)) 	(“[A]n
exclusion that is ‘plain and unambiguous binds the parties to its
terms and must be given effect.’”). 	Accordingly, Allstate is not
obligated 	under 	the 	Policy 	to 	defend 	Thompson 	in 	the 	underlying
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tort suit, and Allstate’s motion for summary judgment on that claim
is granted.8
B. 	Duty to Indemnify
Thompson 	argues 	that 	Allstate’s 	duty 	to 	indemnify 	claim
should 	be 	dismissed 	as 	unripe, 	since 	“there 	are 	fact 	questions
still to be developed” in Rogers’s pending suit against him. Def.’s
Reply 	to 	Pl.’s 	Mot. 	Summ. 	J. 	at 	7, 	ECF 	No. 	37; 	see 	Tex. 	v. 	U.S.,
523 	U.S. 	296, 	300 	(1998) 	(quoting 	Thomas 	v. 	Union 	Carbide 	Agr.
Prods. Co., 473 U.S. 568, 580-81 (1985)) (A “claim is not ripe for
adjudication 	if 	it 	rests 	upon 	‘contingent 	future 	events 	that 	may
not 	occur 	as 	anticipated, 	or 	indeed 	may 	not 	occur 	at 	all.’”).
Nevertheless, 	“[t]he 	duty 	to 	indemnify 	can, 	under 	some
circumstances, 	be 	decided 	before 	the 	underlying 	case 	reaches
judgment.” 	Snell 	v. 	United 	Specialty 	Ins. 	Co., 	102 	F.4th 	1208,
1218 (11th Cir. 2024) (applying Alabama law). 	Such circumstances
are present here, because Rogers’s complaint “forecloses any duty
to 	indemnify 	for 	the 	same 	reason[s] 	it 	forecloses 	any 	duty 	to
defend”: Rogers alleges that Thompson committed intentional torts,
and 	she 	does 	not 	allege 	that 	those 	actions 	caused 	her 	bodily
injury. 	Id. at 1219. 	Accordingly, the Policy imposes no duty on
8 Having found that the Policy does not provide coverage because Rogers
does 	not 	allege 	she 	suffered 	“bodily 	injury” 	which 	arose 	from 	an
“occurrence” 	and 	because 	coverage 	is 	otherwise 	excluded 	under 	the
Policy’s 	intentional 	and 	criminal 	acts 	exclusion, 	the 	Court 	need 	not
additionally consider Allstate’s argument that Thompson failed to give
proper notice under the Policy.
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Allstate 	to 	indemnify 	Thompson 	in 	the 	underlying 	suit, 	and
Allstate’s motion for summary judgment on that claim is granted.
III. Claim as to The Animal Farm Restaurant
Count 	V 	of 	Allstate’s 	Petition 	requests 	a 	declaration 	that
Allstate 	has 	no 	duty 	to 	provide 	coverage 	for 	any 	incidents 	of
alleged 	illegal 	surveillance 	by 	Thompson 	which 	occurred 	at 	The
Animal Farm restaurant. 	Pet. ¶¶ 43-49. 	Thompson argues that this
claim must be dismissed for failure to join The Animal Farm as an
indispensable 	party 	under 	Federal 	Rule 	of 	Civil 	Procedure 	19.
Because 	Allstate 	did 	not 	respond 	to 	Thompson’s 	argument,
Allstate’s 	claim 	with 	respect 	to 	The 	Animal 	Farm 	is 	deemed
abandoned. 	Resol. 	Tr. 	Corp. 	v. 	Dunmar 	Corp., 	43 	F.3d 	587, 	599
(11th 	Cir. 	1995) 	(en 	banc) 	(“[G]rounds 	alleged 	in 	the 	[petition]
but 	not 	relied 	upon 	in 	summary 	judgment 	are 	deemed 	abandoned.”).
Accordingly, that claim is dismissed.
CONCLUSION
For 	the 	foregoing 	reasons, 	Allstate’s 	motion 	for 	summary
judgment 	(ECF 	No. 	32) 	is 	granted 	as 	follows: 	The 	Court 	grants
Allstate’s request for a declaratory judgment that it has no duty
to 	defend 	and 	no 	duty 	to 	indemnify 	Thompson 	in 	the 	underlying
action 	brought 	by 	Rogers 	arising 	out 	of 	the 	alleged 	incident 	at
Thompson’s Sue Mack Drive residence. 	Thompson’s motion for summary
judgment 	(ECF 	No. 	33) 	is 	denied. 	The 	Court 	dismisses 	Allstate’s
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claim for a declaration regarding alleged unlawful surveillance at
The Animal Farm as abandoned.
IT IS SO ORDERED, this 13th day of January, 2026.
S/Clay D. Land
CLAY D. LAND
U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
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