OWNERS INSURANCE COMPANY v. WILLIAMS et al

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
OWNERS INSURANCE COMPANY,
Plaintiff,
v.
ERICA WILLIAMS, as Administrator of the
Estate of Cameron Williams, deceased, and
C. BURTON HOLDINGS, LLC,
Defendants.
CIVIL ACTION NO.
5:25-cv-00007-TES
ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT
This is a declaratory-judgment action brought pursuant to Federal Rule of Civil
Procedure 57 and 28 U.S.C. § 2201. [Doc. 1, ¶ 7]. Through the legal standards that guide
summary judgment, Plaintiff Owners Insurance Company (“Owners”) seeks a ruling
that it doesn’t have a duty to defend or indemnify Defendant C. Burton Holdings, LLC,
in a lawsuit filed against it in the State Court of Bibb County, Georgia. [Id. at ¶ 5].
BACKGROUND
In that underlying lawsuit, Defendant Erica Williams, acting as the administrator
for her late son’s estate, sues a 24-hour, self-service car wash owned and operated by C.
Burton Holdings, LLC (hereinafter “Burton”), at 1975 Millerfield Road in Macon,
Georgia. [Doc. 1-1, ¶¶ 1–3]; [Doc. 22-2, ¶ 18]. Ms. Williams asserts that on September 30,
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2023, her son, Cameron Williams, “was present at” the car wash “for the purpose of
being a customer of the business” only to fall victim to a drive-by shooting stemming
from gang-related violence. [Doc. 1-1, ¶¶ 5–6, 35–36]. The drive-by shooters killed Ms.
Williams’ son. [Id. at ¶ 6]. To recover damages against Burton for negligence-based
claims, Ms. Williams sued it in state court on September 6, 2024. [Id. at ¶¶ 10–41].
On January 7, 2025, Owners filed a Complaint [Doc. 1] in federal court against
Ms. Williams and Burton initiating proceedings to dispel any duty that it must defend
or indemnify Burton in the underlying lawsuit. [Doc. 1, ¶ 35]. Why? Well, according to
Owners, Burton didn’t give them notice of the shooting “as soon as practicable” as
required under its commercial insurance policy. [Id. at ¶¶ 17–20, 35]. Owners
characterizes this declaratory-judgment action as “a straightforward late-notice case.”
[Doc. 22-1, p. 1]. Ms. Williams and Burton disagree. They contend that Burton’s notice
to Owners was not, as a matter of law, late, and that even if it was, “notice” is not a
condition precedent to coverage. See generally [Doc. 23]; see also [Doc. 26, pp. 5–10].
LEGAL STANDARD
A court must grant summary judgment “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). A factual dispute is not genuine unless, based on
the evidence presented, “‘a reasonable jury could return a verdict for the nonmoving
party.’” Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002)
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(quoting United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991));
see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “The moving party bears
the initial responsibility of informing the court of the basis for its motion.” Four Parcels,
941 F.2d at 1437. The movant may cite to particular parts of materials in the record,
including, “‘the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any,’ which it believes demonstrate the absence of a
genuine issue of material fact.” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)); Fed. R. Civ. P. 56(c)(1)(A).1 “When the nonmoving party has the burden of proof
at trial, the moving party is not required to ‘support its motion with affidavits or other
similar material negating the opponent’s claim[]’ in order to discharge this ‘initial
responsibility.’” Four Parcels, 941 F.2d at 1437–38 (quoting Celotex, 477 U.S. at 323).
Rather, “the moving party simply may show—that is, point out to the district court—
that there is an absence of evidence to support the nonmoving party’s case.” Id.
(quoting Celotex, 477 U.S. at 324) (cleaned up). Alternatively, the movant may provide
“affirmative evidence demonstrating that the nonmoving party will be unable to prove
its case at trial.” Id.
If this initial burden is satisfied, the burden then shifts to the nonmoving party,
who must rebut the movant’s showing “by producing . . . relevant and admissible
1 Courts may consider all materials in the record, not just those cited by the parties. Fed. R. Civ. P.
56(c)(3).
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evidence beyond the pleadings.” Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d
1292, 1315 (11th Cir. 2011) (citing Celotex, 477 U.S. at 324). The nonmoving party does
not satisfy its burden “if the rebuttal evidence ‘is merely colorable or[] is not
significantly probative’ of a disputed fact.” Id. (quoting Anderson, 477 U.S. at 249–50). “A
mere scintilla of evidence supporting the [nonmoving] party’s position will not suffice.”
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).
Further, where a party fails to address another party’s assertion of fact as
required by Federal Rule of Civil Procedure 56(c), the Court may consider the fact
undisputed for purposes of the motion. Fed. R. Civ. P. 56(e)(2); see also n.2, infra.
However, “credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge.” Anderson,
477 U.S. at 255. Succinctly put,
[s]ummary judgment is not a time for fact-finding; that task is reserved for
trial. Rather, on summary judgment, the district court must accept as fact
all allegations the [nonmoving] party makes, provided they are sufficiently
supported by evidence of record. So[,] when competing narratives emerge
on key events, courts are not at liberty to pick which side they think is more
credible. Indeed, if “the only issue is one of credibility,” the issue is factual,
and a court cannot grant summary judgment.
Sconiers v. Lockhart, 946 F.3d 1256, 1263 (11th Cir. 2020) (internal citations omitted).
Stated differently, “the judge’s function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249. The nonmovant’s evidence is to be believed, and “all
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justifiable inferences are to be drawn in his favor.” Id. at 255. “[I]f a reasonable jury
could make more than one inference from the facts, and one of those permissible
inferences creates a genuine issue of material fact, a court cannot grant summary
judgment.” Sconiers, 946 F.3d at 1263. It “must hold a trial to get to the bottom of the
matter.” Id.
APPLICABLE LAW
Easily enough, the parties agree that Georgia law on construction and
interpretation of contracts governs the outcome of this declaratory-judgment action.
[Doc. 22-1, p 5]; [Doc. 23, p. 4]; [Doc. 26, p. 2]. Under Georgia law, when interpreting an
insurance policy, the “cardinal rule” is “to determine and carry out the intent of the
parties.” Nat’l Cas. Co. v. Ga. Sch. Bds. Ass’n-Risk Mgmt. Fund, 818 S.E.2d 250, 253 (Ga.
2018). The policy is to be read “as a layman would,” and “not as it might be analyzed by
an insurance expert or an attorney.” State Farm Mut. Auto. Ins. Co. v. Staton, 685 S.E.2d
263, 265 (Ga. 2009). “The test is not what the insurer intended its words to mean, but
what a reasonable person in the position of the insured would understand them to
mean.” Owners Ins. Co. v. Jones, No. 5:23-cv-92, 2025 WL 1839951, at *3 (S.D. Ga. July 3,
2025) (quoting U.S. Fire Ins. Co. v. Cap. Ford Truck Sales, 355 S.E.2d 428, 429 (Ga. 1987)).
If a policy’s language is unambiguous, the contract’s plain terms must be
enforced. Staton, 685 S.E.2d at 266. But if the policy is found to be ambiguous, then its
provisions are “construed liberally against the insurer and most favorably for the
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insured.” Id. at 265. Georgia courts find an insurance contract ambiguous “only if its
terms are subject to more than one reasonable interpretation.” Id. Courts may not
“strain the construction of the policy so as to discover an ambiguity.” Id. at 265–66. “In
other words, the rule of liberal construction of an insurance policy cannot be used to
create an ambiguity where none, in fact, exists.” Id. at 266. If “the language fixing the
extent of liability of an insurer is unambiguous and but one reasonable construction is
possible, [courts] must expound the contract as made.” Id.
POLICY LANGUAGE
Unless otherwise noted, the following is taken from Owners’ Statement of
Material Facts [Doc. 22-4].2 The effective period for the commercial general liability
insurance policy covering Burton spanned from November 18, 2022, to November 18,
2023. [Doc. 22-4, ¶ 1]. So, the date of the shooting from the underlying lawsuit,
September 30, 2023, falls within that period. [Id. at ¶ 7]. Included in the policy is a CGL
Form—a Commercial General Liability Coverage Form—stating:
Various provisions in this policy restrict coverage. Read the entire policy
carefully to determine rights, duties and what is and is not covered.
Throughout this policy the words “you” and “your” refer to the Named
2 By operation of Local Rule 56, these facts are deemed admitted by Ms. Williams since she has not
“specifically controverted [them] by specific citation to particular parts of materials in the record.” LR 56,
MDGa; see also Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008) (discussing consequences for a failure
to follow a court’s local rules); Hall-Gordon v. Bibb Cnty. Sch. Dist., No. 5:21-cv-00143-TES, 2022 WL
3704917, at *1 (M.D. Ga. Aug. 27, 2022) (discussing consequences for a failure to follow Local Rule 56);
aff’d Gordon v. Bibb Cnty. Sch. Dist., No. 22-13286, 2023 WL 8253881, at *1–2 (11th Cir. Nov. 29, 2023);
Mathews v. Walmart, Inc., No. 5:22-cv-00397-TES, 2024 WL 3905815, at *2–3 (M.D. Ga. Aug. 22, 2024)
(same); NEIS Acquisitions AUXGA, LLC v. Target Corp., No. 5:25-cv-00114-TES, 2025 WL 2898972, at *1 n.1
(M.D. Ga. Oct. 10, 2025) (same).
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Insured shown in the Declarations, and any other person or organization
qualifying as a Named Insured under this policy. The words “we”, “us”
and “our” refer to the company providing this insurance. The word
“insured” means any person or organization qualifying as such under
Section II – Who Is An Insured. Other words and phrases that appear in
quotation marks have special meaning. Refer to Section V – Definitions.
SECTION I – COVERAGES
COVERAGE A – BODILY INJURY AND PROPERTY
DAMAGE LIABILITY
1. 	Insuring Agreement
a. 	We will pay those sums that the insured becomes legally
obligated to pay as damages because of “bodily injury” or
“property damage” to which this insurance applies. We will
have the right and duty to defend the insured against any
“suit” seeking those damages. However, we will have no
duty 	to 	defend 	the 	insured 	against 	any 	“suit” 	seeking
damages for “bodily injury” or “property damage” to which
this insurance does not apply.
[Id. at ¶ 2 (emphasis added)]; [Doc. 1-2, p. 150 (emphasis added)].
Section IV of the CGL Form discusses “Conditions.”3 [Doc. 22-4, ¶ 3]; [Doc. 1-2,
pp. 158–59]. There, the policy requires the insured to provide timely notice of any
“occurrence” that may result in a claim. [Doc. 22-4, ¶ 3].
2. 	Duties In The Event Of Occurrence, Offense, Claim or Suit
a. 	You must see to it that we are notified as soon as practicable
of an “occurrence” or an offense which may result in a claim.
To the extent possible, notice should include:
(1) How, when and where the “occurrence” or offense
took place;
(2) The names and addresses of any injured persons
3 With respect to this factual assertion by Owners, Burton “does not dispute the policy language quoted
in this paragraph.” [Doc. 26-1, ¶ 3]. Burton does, however, dispute Owner’s “statement that the quoted
‘conditions’ is a ‘condition precedent’” to coverage. [Id.]. In its Response [Doc. 26-1] to Owners’ Statement
of Material Facts, Burton argues that “‘[c]ondition precedent’ is a legal conclusion asserted by [Owners],
and the phrase ‘condition precedent’ is not contained in the policy.” [Id.].
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and witnesses; and
(3) The nature and location of any injury or damage
arising out of the “occurrence” or offense.
b. 	If a claim is made or “suit” is brought against any insured,
you must:
(1) Immediately record the specifics of the claim or
“suit” and the date received; and
(2) Notify us as soon as practicable.
You must see to it that we receive written notice of the
claim or “suit” as soon as practicable.
c. 	You and any other involved insured must:
(1) Immediately send 	us copies of 	any demands,
notices, 	summonses 	or 	legal 	papers 	received 	in
connection with the claim or “suit”;
(2) Authorize us to obtain records and other
information;
(3) Cooperate with us in the investigation or settlement
of the claim or defense against the “suit”; and
(4) Assist us, upon our request, in the enforcement of
any right against any person or organization which
may be liable to the insured because of injury or
damage to which this insurance may also apply.
d. 	No insured will, except at that insured’s own cost, voluntarily
make 	a 	payment, 	assume 	any 	obligation, 	or 	incur 	any
expense, other than for first aid, without our consent.
3. Legal Action Against Us
No person or organization has a right under this Coverage Part:
a. 	To join us as a party or otherwise bring us into a “suit” asking
for damages from an insured; or
b. 	To sue us on this Coverage Part unless all of its terms have
been fully complied with.
[Id.]; [Doc. 1-2, p. 159].
Then, under Section V of the CGL Form, the policy supplies “Definitions” for
two of those “ words and phrases that [just] appear[ed] in quotation marks.” [Doc. 22-4, ¶¶ 2
(emphasis added), 4]; [Doc. 1-2, p. 160]. Relevant here, are three definitions.
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3. 	“Bodily injury” means bodily injury, sickness or disease sustained
by a person, including death resulting from any of these at any time.
[ . . . ]
13. 	“Occurrence” means an accident, including continuous or repeated
exposure to substantially the same general harmful conditions.
[ . . . ]
18. 	“Suit” means a civil proceeding in which damages because of ‘bodily
injury,’ ‘property damage,’ or ‘personal and advertising injury’ to
which this insurance applies are alleged.
[Doc. 22-4, ¶ 4]; [Doc. 1-2, pp. 160 (“Bodily injury”); 162 (“Occurrence”); 163 (“Suit”)].
DISCUSSION
When it comes to the overarching question of notice, the policy states that Burton
“must see to it that [Owners is] notified as soon as practicable of an ‘occurrence’ or an
offense which may result in a claim.” [Doc. 22-4, ¶ 3]; [Doc. 1-2, p. 159]. It also states
that “[i]f a claim is made or ‘suit’ is brought against [Burton], [Burton] must . . .
[i]mmediately record the specifics of the claim or ‘suit’ and the date received; and . . .
[n]otify [Owners] as soon as practicable.” [Doc. 22-4, ¶ 3]; [Doc. 1-2, p. 159]. According
to Owners, when an insurance policy requires an insured to provide timely notice of an
occurrence, and the notice provision is “coupled with a general provision that no action
will lie against the insurer unless the insured has fully complied with the terms of the
policy, compliance with the notice provision is deemed a condition precedent to
coverage.” [Doc. 22-1, pp. 6–7 (citing Progressive Mountain Ins. Co. v. Bishop, 790 S.E.2d
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91, 93–94 (Ga. Ct. App. 2016))].
Notably, however, no one is bringing an action against Owners—as far as this
case is concerned. See [Doc. 26, p. 5]. In this declaratory-judgment action, Owners sues
Burton and Ms. Williams, and in the underlying lawsuit, Ms. Williams only sues
Burton. See [id.]. So, relying on Owners Insurance Company v. Magic City Builders, Inc., No.
1:14-CV-3210-TWT, 2025 WL 3291968, at *4 (N.D. Ga. Nov. 25, 2025), Ms. Williams and
Burton assert that Owners’ argument is incorrect. [Doc. 23, pp. 7–13]; [Doc. 26, pp. 5–8].
That argument, put a little more simply, is that when an insurance policy (1) requires
timely notice and (2) further provides a provision that no action will lie against the insurer
“unless” the insured has complied with all policy terms, then timely notice is a
condition precedent to coverage.4 [Doc. 22, pp. 6–7]; [Doc. 27, p. 2]. Let’s start first with
the general rule in Georgia.
4 While Owners points to the policy language stating: “No person or organization has a right under this
Coverage Part . . . [t]o sue us . . . unless all of its terms have been fully complied with,” Owners “is the
plaintiff[] in this case.” [Doc. 1-2, p. 159 (emphasis added)]; [Doc. 22-4, ¶ 3 (emphasis added)]; [Doc. 26, p.
5]. Rest assured, the Court understands Owners’ argument that a “timely notice” provision “coupled
with” a “no action will lie against the insurer” provision creates a condition precent to coverage, but its
reliance on Harp v. Fireman’s Fund Insurance Company, 61 S.E. 704 (Ga. 1908), somewhat clouds the real
issue. [Doc. 22-1, p. 6]; [Doc. 27, pp. 2–3]. Harp dealt with a suit against an insurance company. 61 S.E. at
704–05. That’s not at all what’s going on here. Nevertheless, “[t]he meaning of the provision . . . referred
to” in Harp was “that no suit could be commenced” against the insurance company “until there was a
compliance with the requirement as to furnishing proofs of loss.” Id. at 705 (emphasis added). In Harp, the
Georgia Supreme Court also stated that “the policy would not be forfeited because of the [insured’s]
failure to furnish [proofs] within 60 days after the [loss].” Id. “Under this provision[,] time [was] not of
the essence . . . as to the furnishing of proofs of loss.” Id. The policy in Hart did “not provide that no suit
can be maintained [against the insurance company] unless there is a full compliance with its
requirements”—it did, however, “provide that no suit can be maintained [against the insurance
company] until after a full compliance.” Id. (emphasis added). Thus, Harp is irrelevant to Owners’
“condition precedent” argument. If Owners was somehow being sued because of the drive-by shooting in
this case, then Harp would come into play.
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A. 	Magic City Builders and Conditions Precedent
The Georgia Court of Appeals holds:
[T]he general rule is that a notice provision in an insurance policy is only
considered a condition precedent to coverage if “it expressly states that a
failure to provide such notice will result in a forfeiture of the insured’s
rights or uses language which otherwise clearly expresses the intention that
the notice provision be treated as a condition precedent.”
Plantation Pipeline Co. v. Stonewall Ins. Co., 780 S.E.2d 501, 511 (Ga. Ct. App. 2015)
(quoting Res. Life Ins. Co. v. Buckner, 698 S.E.2d 19, 27 (Ga. Ct. App. 2010)). “This rule
reflects the desire of the law to avoid forfeitures of an insured’s rights.” Buckner, 698
S.E.2d at 27 (citation omitted). So, under Georgia law, when policy language “does
nothing more than require the insured to give notice of a particular event, [that
language] is insufficient to create a condition precedent.” Id. at 27–28 (citing Canal Ins.
Co. v. Savannah Bank and Tr. Co., 352 S.E.2d 835, 837–38 (Ga. Ct. App. 1987)).
Magic City Builders says just that. 2025 WL 3291968, at *4 (quoting Buckner, 698
S.E.2d at 27). Magic City Builders also says, “determining whether a notice provision is a
condition precedent is not such a simple task” as courts applying Georgia law “appear
to point in opposite directions.” Id. In Magic City Builders, the court painstakingly
analyzed several competing precedents. The plaintiff in Magic City Builders, which is
coincidentally the same plaintiff in this case, Owners, pointed to two Georgia Court of
Appeals decisions for the “position that the language of the notice provisions ‘is
sufficient, by itself, to state a valid condition precedent to coverage.’” 2025 WL 3291968,
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at *4 (discussing Kay-Lex Co. v. Essex Ins. Co., 649 S.E.2d 602, 607–07 (Ga. Ct. App. 2007);
and Forshee v. Emps. Mut. Cas. Co., 711 S.E.2d 28, 31 (Ga. Ct. App. 2011)). The Magic City
Builders court also mentioned an unpublished opinion where the Eleventh Circuit
aligned with Owners’ contention—that the notice provisions were intended to be
treated as conditions precedent to coverage. Id. (discussing State Farm Fire & Cas. Co. v.
LeBlanc, 494 F. App’x 17, 21 (11th Cir. 2012)). Of course, the law is never easy, and the
defendants in Magic City Builders pointed to a separate line of cases holding just the
opposite. Id. at *5.
In Magic City Builders, the defendants—like Ms. Williams and Burton—point to
Plantation Pipeline and Buckner for the same “general rule” laid out above, where that
court found the defendants’ “case law [to be] the better [understanding]” of that rule. Id.
(quoting Plantation Pipeline, 780 S.E.2d at 511); Buckner, 698 S.E.2d at 27–28; see also [Doc.
23, pp. 8–9]; [Doc. 26, p. 6]. The court, in Magic City Builders, explained that the rule
from Plantation Pipeline
is traceable to a line of older insurance cases that held that violating an
insurance provision cannot cause forfeiture of coverage unless coverage is
expressly conditioned on compliance with that particular provision—i.e.,
the mere requirement that the insured provide certain notice is not
sufficient to establish a condition precedent.
Magic City Builders, 2025 WL 3291968, at *5 (citing Parris v. Great Cent. Ins. Co., 251 S.E.2d
109, 109–10 (Ga. Ct. App. 1978)); see also Progressive Mut. Ins. Co. v. Burrell Motors, Inc.,
143 S.E.2d 757, 759 (Ga. Ct. App. 1965); Savannah Bank and Tr. Co., 352 S.E.2d at 837–38
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(“[A] mere failure to furnish [to the insurer] proper proofs of loss [within the period
specified in the policy] will not work a forfeiture of the policy unless there is an express
stipulation to that effect.”). According to the court in Magic City Builders, the Georgia
Court of Appeals, in these “older . . . cases,” “required provision-specific conditional
language based on the principle that ‘[f]orfeitures are not favored by the law.’” 2025 WL
3291968, at *5 (citing Burrell Motors, Inc., 143 S.E.2d at 758); Buckner, 698 S.E.2d at 27
(citation omitted) (noting “the desire of the law to avoid forfeitures”); see also Savannah
Bank and Tr. Co., 352 S.E.2d at 837–38 (“There was no such express stipulation in the
instant policy.”).
So, in layman’s terms, what does that mean? It means that the court in Magic City
Builders ruled in favor of coverage. Specifically, the Magic City Builders court held where
an insurance policy, no different than the one Owners issued to Burton in this case,
merely requires notice in a “conditions” section—absent any express intention that
“giving notice” will be a condition precedent to coverage—failure to give notice will not
forfeit coverage. 2025 WL 3291968, at *5; see, e.g., [Doc. 1-2, p. 159]. Now, whether Magic
City Builders was correctly decided is a question for the Eleventh Circuit—and
ultimately the Georgia Supreme Court. Magic City Builders is currently on appeal, and
the “conditions precedent” issue—an issue about which “there are no clear controlling
precedents in the appellate court decisions” from the State of Georgia—is perfectly
primed for certification to the Georgia Supreme Court. See King v. King, 888 S.E.2d 166,
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170 (Ga. 2023) (Warren, J., dissenting in part) (first quoting Georgia Supreme Court Rule
46; and then citing Ga. Const. of 1983, Art. VI, Sec. VI, Par. IV); see also Magic City
Builders, 2025 WL 3291968, appeal docketed, No. 25-14277 (11th Cir. Dec. 8, 2025). Be it
through certification by the Eleventh Circuit via Magic City Builders or via an appeal
within a state-court case, what Georgia law requires for insurance policies regarding an
insurer’s and an insured’s unambiguous intention to include a condition precedent in
an insurance contract needs to be ironed out by Georgia’s appellate courts.
Unless or until that happens, though, this Court will follow how the Eleventh
Circuit interprets similar cases from Georgia’s appellate courts. Owners’ policy issued
to Burton states: “You must see to it that we are notified as soon as practicable of an
‘occurrence’ or an offense which may result in a claim.” [Doc. 22-4, ¶ 3 (emphasis
added)]; [Doc. 1-2, p. 159 (emphasis added)]. In Mt. Hawley Insurance Company v. East
Perimeter Pointe Apartments and LeBlanc, the Eleventh Circuit, applying Georgia law,
held that notice provisions nearly identical to the one from the policy for this case
triggered a condition precedent. See, e.g., Mt. Hawley Ins. Co., 861 F. App’x 270, 278 (11th
Cir. 2021) (discussing policy language, “You must see to it that we are notified as soon
as practicable of an ‘occurrence’ that may result in a claim or ‘suit’ under this policy”);
LeBlanc, 494 F. App’x at 20 (discussing policy language, “If a claim is made or suit is
brought against any insured, you must see to it that we receive prompt written notice of
the claim or suit”). Contrary to the court’s thorough analysis in Magic City Builders, the
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Eleventh Circuit has noted that Georgia’s appellate courts treat “you must see to it”
language—standing alone—as a condition precedent. LeBlanc, 494 F. App’x at 21 (first
citing Forshee, 711 S.E.2d at 30–31; and then citing Kay-Lex, 649 S.E.2d at 607–07). So,
unless or until the Eleventh Circuit gets some guidance from the Georgia Supreme
Court and the Georgia Supreme Court tells us differently, “[t]his language”—based on
current Eleventh Circuit interpretations of Georgia case law—“clearly expresses the
intention” that the policy’s notice provision be treated as condition precedent to
coverage. Id.
B. 	“Occurrence” and Notice
“It is settled under Georgia law that, when an insurance policy includes a notice
requirement as a condition precedent to coverage, and when the insured unreasonably
fails to timely comply with the notice requirement, the insurer is not obligated to
provide a defense or coverage.” Forshee, 711 S.E.2d at 31 (citing Federated Mut. Ins. Co. v.
Ownbey Enters., Inc., 627 S.E.2d 917, 919 (Ga. Ct. App. 2006)). Thus, summary judgment
in favor of Owners is proper if (1) the drive-by shooting was an “occurrence” or “an
offense which may result in a claim” and (2) Burton’s delay in giving notice of the
occurrence to Owners was “unjustified and unreasonable as a matter of law,” thereby
excusing Owners’ duty to defend and provide coverage. See State Farm Fire and Cas. Co.
v. Walnut Ave. Partners, LLC, 675 S.E.2d 534, 538 (Ga. Ct. App. 2009); [Doc. 22-4, ¶ 3];
[Doc. 1-2, p. 159].
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To begin, Burton argues that the drive-by shooting was not an “occurrence” that
triggered its duty to provide notice. [Doc. 26, p. 4]. Again, the policy defines an
“occurrence” as an “accident, including continuous or repeated exposure to
substantially the same general harmful conditions.” [Doc. 22-4, ¶ 4]; [Doc. 1-2, p. 162].
So, the policy says an occurrence is an “accident”—period. [Doc. 22-4, ¶ 4]; [Doc. 1-2, p.
162]. And, an “accident” can be one that concerns “continuous or repeated exposure to
substantially the same general harmful conditions.” [Doc. 22-4, ¶ 4]; [Doc. 1-2, p. 162].
But, if Burton is correct that the drive-by shooting wasn’t an “occurrence” because it
was an “isolated incident” involving “intentional conduct,” then the shooting is not an
“occurrence,” and there is no resulting duty to defend or indemnify since the policy
only covers “occurrences.” [Doc. 26, p. 5].
Courts routinely recognize that a shooting, similar to the one here, is an
occurrence. See, e.g., Mt. Hawley Ins. Co., 861 F. App’x at 278 (rejecting the argument that
the insured’s “delay in providing notice was justified because it ‘was not aware of the
existence of coverage’” after a shooting on the insured’s premises); Owners Ins. Co. v.
Hawkins, No. 1:22-CV-01265-JPB, 2023 WL 5733838, at *6 (N.D. Ga. Sept. 1, 2023)
(rejecting the insured’s argument “that it did not view the shooting as an ‘occurrence’
that required notice until . . . it received the letter of representation”); Brit UW Ltd. v.
Hallister Prop. Dev., LLC, 6 F. Supp. 3d 1321, 1329 (N.D. Ga. 2014) (interpreting identical
language and finding that the policy “expressly requires notice of any occurrence that
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‘may result in a claim’”); Nationwide Prop. & Cas. Ins. Co. v. Sewell Vault & Monument,
Inc., No. 3:11-CV-92, 2012 WL 13028694, at *5 (N.D. Ga. Feb. 13, 2012) (“[A]s a condition
precedent to coverage, the policy required [the insured] to notify [the insurer] ‘as soon
as practicable of an “occurrence” . . . which may result in a claim.’”). Like these other
courts, this one too, concludes that the policy language surrounding “occurrence” and
when notice must be given for an “occurrence” is unambiguous. Hawkins, 2023 WL
5733838, at *6.
Next, when it comes to notice provisions, “[Georgia] law only requires an
insured ‘to act reasonably under the circumstances.’” Forshee, 711 S.E.2d at 31 (quoting
Guar. Nat. Ins. Co. v. Brock, 474 S.E.2d 46, 48 (Ga. Ct. App. 1996)). In other words,
notwithstanding the existence of a condition precedent, compliance with that condition
may be excused if a court can determine as a matter of law that an insured’s “actions”
following an “occurrence” were reasonable. See id.
“Notice provisions . . . must be complied with” unless the insured can justify its
noncompliance. Mt. Hawley Ins. Co., 861 F. App’x at 277 (quoting Plantation Pipeline, 537
S.E.2d at 169). Long story short, that’s what this case hinges on: Can Burton justify the
fact that it did not provide Owners with notice of the drive-by shooting “as soon as
practicable?” [Doc. 1-2, p. 159]; [Doc. 22-4, ¶ 3]. “[I]f a reasonable and ordinarily
prudent person would conclude that an event forms no basis for a possible claim, the
failure of the insured to give notice of the event is justified and [there is] no bar to
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coverage.” Forshee, 711 S.E.2d at 31 (citing Brock, 474 S.E.2d at 48). “Whether [an] excuse
or justification [is] sufficient and whether the insured acted diligently in giving the
notice ‘are generally questions of fact, to be determined by [a] jury, according to the
nature and circumstances of each individual case.’” Plantation Pipeline, 537 S.E.2d at 167.
In the context of this case, Ms. Williams’ son died on September 30, 2023, when
“occupants of a white Ford F-150 drove by the [car wash] and began shooting, killing
[him].” [Doc. 1, ¶ 12 (citing [Doc. 1-1, ¶ 6])]; [Doc. 22-4, ¶ 7]. Burton admits that it “first
learned” of the shooting on the day it “had taken place.” [Doc. 22-4, ¶ 7]; [Doc. 22-2, ¶
10]; [Doc. 22-3, ¶ 8]. Ms. Williams filed the underlying “suit” on September 6, 2024.
[Doc. 1-1, p. 2]; [Doc. 22-4, ¶ 5]. After being served with the underlying lawsuit on
October 19, 2024, Burton notified Owners about the shooting on October 23, 2024—389
days (or one year and 23 days) from the date of the shooting, but only four days after it
received the underlying lawsuit.5 [Doc. 22-2, ¶ 11]; [Doc. 22-4, ¶ 8]. When Owners asked
Burton the all-important question of why it didn’t provide notice of the shooting until
one year and 23 days after it happened, Burton replied:
The shooting occurred in the public roadway, Millerfield Road, Macon,
Georgia, not on [its] property, 1975 Millerfield Road. Because the shooting
took place in the public roadway and not on [Burton’s] property, and there
was no prior history of substantially similar criminal activity, [Burton] did
not believe that it was or could be held liable until it was served with the
[underlying] lawsuit by [Ms.] Williams.
5 On November 12, 2024, Owners issued a reservation of rights letter to Burton and is currently defending
Burton in the underlying lawsuit subject to a complete reservation of rights. [Doc. 22-4, ¶ 9].
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[Doc. 22-2, ¶ 13]; [Doc. 22-3, ¶ 9 (Burton’s denial of its awareness of “substantially
similar criminal activity occurring at or near the premises prior to September 30,
2023”)]. Essentially arguing that this “excuse” doesn’t cure Burton’s late notice, Owners
says it now has no duty to defend or indemnify Burton in the underlying lawsuit.
“Sometimes an event is so trivial or inconsequential that a court properly may
conclude as a matter of law that no reasonable person would think that a claim could
arise from the event and, therefore, that no notice of the event is required.” Forshee, 711
S.E.2d at 31 (citing S. Guar. Ins. Co. v. Miller, 358 S.E.2d 611, 612 (Ga. Ct. App. 1987)). The
Eleventh Circuit, however, has already decided that incidents involving “[m]urder and
brutal assaults . . . are neither trivial nor inconsequential.” Mt. Hawley Ins. Co., 861 F.
App’x at 268 (quoting Forshee, 711 S.E.2d at 31). Notwithstanding the Eleventh Circuit’s
seemingly automatic take on murders and brutal assaults, the Court recognizes the
Georgia Court of Appeals insistence that courts look to “the nature and circumstances
of ‘the accident’ or ‘the incident’ and the immediate conclusions an ordinarily prudent
and reasonable person would draw therefrom that determine whether an insured has
reasonably justified [its] decision not to notify the insurer.” Forshee, 711 S.E.2d at 31
(citing Miller, 358 S.E.2d at 612) (emphasis added). In other words, the relevant inquiry
is not necessarily one of “how severe the injury turned out to be.” See id. at 32. Instead,
the question is “how severe it would have appeared to a reasonable person in the
position of the [insured].” Id. (emphasis added). In cases like this one, courts “must
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make every effort to eliminate the distorting effects of hindsight and to evaluate the
conduct of the insured from the perspective of a reasonable person in the same
circumstances as those in which the insured found [it]self.” Id.
At first glance, it seems as if the answer to the summary-judgment question
before the Court can easily be found in a 1996 decision from the Georgia Court of
Appeals with just a few simple substitutions related to the party’s name, the type of
accident, and the legal theory asserted by the underlying lawsuit. See Brock, 474 S.E.2d
at 48. In Brock, three students, who were “alleged to be injured” in a collision involving
a school bus, filed separate lawsuits. Id. at 47. Each of their lawsuits named the bus
driver, the school district, and Brock—the school district’s transportation supervisor—
as defendants. Id. Here is what the Georgia Court of Appeals said in Brock, and when
the Court changes the name, accident, and legal theory to fit this case, the answer seems
quite apparent.
Under Miller, [Burton] was not required to foresee every possible claim, no
matter how remote, that could have arisen from the [drive-by shooting].
Rather, 	[Burton] 	was 	only 	required 	to 	act 	reasonably 	under 	the
circumstances. Because [Burton] was not directly involved in the [drive-by
shooting], we find that the trial court did not err in holding as a matter of
law that it was not unreasonable for [Burton] to fail to foresee that he might
be named in [the underlying] lawsuit[] arising from the [drive-by shooting]
under a theory of negligent [security].
Id. (citing Miller, 358 S.E.2d at 612); see also [Doc. 1-1, pp. 4–10 (asserting causes of action
for “negligent security,” “maintaining a nuisance,” “injuries as a result of gang-related
violence,” and “premises liability”)]. Over time, however, case law develops. Enter
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Forshee from 2011 where the Georgia Court of Appeals gave pretty clear guidance on
what to look for when determining whether an insured is justified in its failure to give
notice “as soon as practicable.” 711 S.E.2d at 28; [Doc. 22-4, ¶ 3]; [Doc. 1-2, p. 159].
As briefly discussed above, Forshee first tells courts to look to “the nature and
circumstances” of the incident. 711 S.E.2d at 31. Here, that’s a death from a drive-by
shooting at a car wash. [Doc. 22-4, ¶ 6]. Along with the nature of the incident, the
Georgia Court of Appeals, in Forshee, says that “the immediate conclusions an
ordinarily prudent and reasonable person would draw” from the incident must also be
considered by courts when determining whether an insured’s failure to give timely
notice is justified. 711 S.E.2d at 31. Recent case law, however, has foreclosed much of the
debate about shootings. Be they drive-by or on premises, shootings have been held to
“invariably lead an ordinary policyholder to foresee the possibility of a claim
warranting notice to [an] insurer.” Hawkins, 2023 WL 5733838, at *7; see also Jones, 2025
WL 1839951, at *6 (holding that “[t]he nature of a shooting . . . warrant[s] notice to the
insurer”); Mt. Hawley Ins. Co., 861 F. App’x at 278 (holding that murder as a result of a
shooting is “neither trivial nor inconsequential”). “Thus, the serious nature of [a drive-
by shooting at a business] suggests that [an] insured would not be reasonably justified
in failing to notify [its] insurer.” Jones, 2025 WL 1839951, at *6.
Forshee also says that it’s proper for courts to consider whether the person injured
gave any “indication that [s]he intended to hold the insured responsible for the event
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and resulting injuries and the extent to which the insured acknowledged the likelihood
that a claim could arise from the event, either by offering compensation to the injured
person or asking [her] to sign a release.” 711 S.E.2d at 31–32. To be sure, until Ms.
Williams served Burton with the underlying lawsuit, there was no “ indication that
[anyone] intended to hold [Burton] responsible for the [drive-by shooting] and resulting
[death].” Id.; [Doc. 22-2, ¶ 11]. And, as far as the evidence shows, there’s nothing to
indicate that Burton offered any compensation to Ms. Williams following her son’s
death. Aside from “the nature and circumstances” of the incident and “the immediate
conclusions an ordinarily prudent and reasonable person would draw” from the
incident, the fact that there’s no evidence of any offered compensation to Ms. Williams
is the only consideration from Forshee that weighs in favor of Burton being justified in
failing to give timely notice. 711 S.E.2d at 31–32.
However, “an insured cannot avoid the notice requirement by relying on its
subjective belief that it has no liability.” Jones, 2025 WL 1839951, at *7 (quoting Allstate
Ins. Co. v. Airport Mini Mall, LLC, 265 F. Supp. 3d 1356, 1379 (N.D. Ga. 2017)). An
insured may not withhold notice “based on its unilateral assessment of the liability
issues arising from an occurrence.” Hawkins, 2023 WL 5733838, at *8 (citing Brit UW Ltd.,
6 F. Supp. 3d at 1329). Georgia law is clear. “Justification for failure to give notice as
soon as practicable . . . may not include the insured’s conclusion that [it] was free of
fault and that there was no liability to the other party.” Richmond v. Ga. Farm Bureau
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Mut. Ins. Co., 231 S.E.2d 245, 249 (Ga. Ct. App. 1976). “That is the very issue.” Id.
Insurance companies “must have [the] reasonable opportunity to investigate with
promptness, and [that] requires . . . prompt notice of the occurrence”—or “as soon as
practicable” as is the case here. Id. (citing Bituminous Cas. Corp. v. J. B. Forrest Etc., Inc.,
20. S.E.2d 6, 9 (Ga. Ct. App. 1974)); [Doc. 22-4, ¶ 3]; [Doc. 1-2, pp. 159]. As Owners
contends,
[t]he purpose of [a notice] requirement is obvious: to enable the insurer to
begin immediately an investigation of the facts and circumstances for
determining whether liability might be present and whether a settlement of
the claim should be attempted; to get the facts while they [are] fresh and
available in the minds of the parties and such witnesses as might be
available; [and] to obtain pictures . . . which might assist in showing how
the occurrence happened and the extent of any physical damage done.
[Doc. 27, pp. 6–7 (citing Bituminous Cas. Corp., 20 S.E.2d at 8–9)].
Here, Burton is adamant that it “did not believe that it was or could be held
liable [for the drive-by shooting] until it was served with the [underlying] lawsuit by
[Ms.] Williams.” [Doc. 22-2, ¶ 13]; [Doc. 22-3, ¶ 9 (Burton’s denial of its awareness of
“substantially similar criminal activity occurring at or near the premises prior to
September 30, 2023”)]. But, misplaced confidence that an insured won’t have any
liability never excuses its contractual obligations under an insurance policy. Mt. Hawley
Ins. Co. v. E. Perimeter Pointe Apartments, LP, 409 F. Supp. 3d 1319, 1331 (N.D. Ga. 2019)
(quoting Allstate Ins. Co. v. Walker, 562 S.E.2d 267, 268 (Ga. Ct. App. 2002)), aff’d, 861 F.
App’x at 278; Bituminous Cas. Corp., 20 S.E.2d at 8 (“The insured was bound by the
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contract provisions of the policy to give ‘written notice . . . and this he was required to
do ‘as soon as practicable.’”).
An insured’s duty to provide notice to the insurer is triggered when the insured
actually knew or should have known of the possibility that it might be held liable for
the offense in question. Forshee, 711 S.E.2d at 31. Considering the nature of the incident
and “the immediate conclusions an ordinarily prudent and reasonable person would
draw” from it, current and relevant case law lends to the conclusion that Burton
“should have known of the possibility that it might be held liable” since a customer at
its car wash died on its property as a result of a drive-by shooting. Id.; Jones, 2025 WL
1839951, at *6 (discussing that even when considering the circumstances as a drive-by
shooting, “the ‘ordinary policyholder’ would recognize that the shooting death of an
individual on the property owned or managed by the policyholder could possibly lead
to a claim”) (citing Hawkins, 2023 WL 5733838, at *7).
Since the length of delay in this case—one year and 23 days—is unreasonable as
a matter of law, the undisputed facts show that Burton breached a condition precedent
to coverage by failing to provide notice “as soon as practicable.” LeBlanc, 494 F. App’x at
23 (“Georgia courts have held that a delay of as little as three months between the filing
of a lawsuit and notice to the insurer is unreasonable as a matter of law.”) (citing Diggs
v. S. Ins. Co., 321 S.E.2d 792, 793 (Ga. Ct. App. 1984)); [Doc. 22-4, ¶ 3]; [Doc. 1-2, p. 159].
“Georgia case law is quite settled.” Mt. Hawley Ins. Co., 861 F. App’x at 275. “Insurance
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companies aren’t obligated to defend an insured or provide coverage if the insured
unreasonably failed to comply with a conditional notice requirement.” Id.
CONCLUSION
For the reasons discussed above, the Court GRANTS Owners’ Motion for
Summary Judgment [Doc. 22], and it DECLARES that Owners has no duty to defend or
indemnify Burton in the underlying lawsuit or any claim or judgment arising
therefrom. The Court DIRECTS the Clerk of Court to ENTER judgment accordingly
and CLOSE this case.
SO ORDERED, this 15th day of January, 2026.
S/ Tilman E. Self, III
TILMAN E. SELF, III
UNITED STATES DISTRICT JUDGE
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