Interface Flooring Systems, Inc. v. Aetna Casualty and Surety Company, et al.

The plaintiff, Interface Flooring
Systems, Inc., appeals1 from the summary judgment
rendered by the trial court in favor of the defendants2 in
this action, contending that they were obligated under
certain insurance policies to reimburse the plaintiff for
expenses it had incurred in defending against a federal
lawsuit brought against it. On appeal, the plaintiff claims
that the trial court improperly concluded that: (1) the
law of Georgia rather than the law of Connecticut
applied to the substantive issues in the case;3 and (2)
the defendant had no obligation to reimburse the plaintiff
for the expenses that it had incurred without tendering
the defense of the lawsuit to the defendant (pretender
expenses). We conclude that the trial court properly
determined that the law of Georgia controlled, and
that the insurance policies did not cover the plaintiff's
pre-tender expenses. Accordingly, we affirm the judgment
of the trial court.

The following facts and procedural history are relevant
to our resolution of this appeal. The plaintiff, a
Georgia corporation, is an international manufacturer
and seller of carpet tiles. The defendant sold the plaintiff
five commercial general liability insurance policies
from July, 1986, to July, 1991. In March, 1990, Milliken
and Company (Milliken), a competitor of the plaintiff,
filed an action in federal court against the plaintiff for
alleged copyright infringement and unfair trade practices
in the design, manufacture and sale of certain
carpet tiles.4 The plaintiff defended the action aggressively,
employing experienced Georgia and New York
law firms, but never requested the defendant to provide
a defense to the action. In September, 1990, the plaintiff
and Milliken reached a nonmonetary settlement, with
each party agreeing to pay its own attorney's fees and
costs. The plaintiff's defense costs exceeded $330,000.
In March, 1991, six months after the settlement of the
federal action, the plaintiff contacted the defendant and
sought reimbursement for the defense costs. In November,
1991, the defendant rejected the plaintiff's claim
and the plaintiff thereafter initiated this action.

In the trial court, the plaintiff contended that, under
Connecticut law, it was entitled to reimbursement for
pre-tender expenses pursuant to the policies issued by
the defendant. The defendant countered that Georgia
law governed the dispute and that, under the law of
that state, the plaintiff was not entitled to recover pretender
expenses. The trial court concluded that Georgia
law governed the issue and that, on the basis of Georgia
case law interpreting similar policy language, the plaintiff
had forfeited its right to be reimbursed for pretender
expenses by failing to comply with certain policy
conditions requiring the plaintiff immediately to forward
all lawsuit papers to the defendant. Accordingly,
the trial court granted the defendant's motion for summary judgment. This appeal followed.

On appeal, the plaintiff claims that Connecticut law
should have been applied to the substantive issues in
this case and that the trial court improperly concluded
that it was barred from recovering pre-tender defense
costs. The defendant counters that the trial court was
correct in applying Georgia law to the issues in this
case and in concluding that ‘‘the policies here at issue
provide no coverage for the pre-tender expenses
incurred by [the plaintiff] in defending the Milliken lawsuit.''
We agree with the defendant.

We begin by setting forth the standard of review that
governs our resolution of this appeal. ‘‘The standard of
review of a trial court's decision to grant summary
judgment is well established. [W]e must decide whether
the trial court erred in determining that there was no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.'' (Internal
quotation marks omitted.) Hoskins v. Titan Value
Equities Group, Inc., 252 Conn. 789, 792, 749 A.2d 1144
(2000); see Practice Book § 17-49. The trial court, in
deciding a motion for summary judgment, must consider
the facts in the light most favorable to the nonmoving
party. Sherwood v. Danbury Hospital, 252 Conn.
193, 201, 746 A.2d 730 (2000); Serrano v. Burns, 248
Conn. 419, 424, 727 A.2d 1276 (1999). The party seeking
summary judgment bears the burden of showing the
lack of any issue of material fact. Home Ins. Co. v.
Aetna Life & Casualty Co., 235 Conn. 185, 202, 663
A.2d 1001 (1995). The opposing party must demonstrate
that there is a genuine issue of material fact; it is insufficient
for the opposing party merely to assert that a
disputed issue exists. Id.

I.

As a threshold matter, we must decide whether Georgia
or Connecticut law controls the substantive issue
in this appeal, namely, whether the defendant is liable
for the plaintiff's pre-tender expenses. We conclude that
the trial court properly applied Georgia law, although
we employ different reasoning in reaching our conclusion.

The following facts are relevant to the resolution of
this issue. The plaintiff is incorporated in the state of
Georgia, where it also is domiciled and maintains its
principal place of business. Although several of the
plaintiff's manufacturing facilities are located in Georgia,
the plaintiff markets and sells its products throughout
the United States and abroad. The insurance
policies at issue in this appeal were purchased in Georgia
from the plaintiff's Georgia insurance broker. The
action that gave rise to the present litigation was
brought by Milliken against the plaintiff in the United
States District Court for the Southern District of New
York. See footnote 4 of this opinion.

The trial court concluded that, pursuant to the
Restatement (Second) of Conflict of Laws (1971), Georgia
law should be applied in the present case. In reaching
this conclusion, the trial court looked to the
presumption contained in § 193 of the Restatement
(Second) of Conflict of Laws that, unless application
of the various factors set forth in § 6 of the Restatement
(Second) of Conflict of Laws indicates that some other
state has a more significant relationship to the transaction
and the parties, the law governing an insurance
liability contract should be that of the ‘‘ ‘principal location
of the insured risk . . . .' ''5 The trial court found
that location to be Georgia, the situs of the plaintiff's
corporate headquarters and, therefore, the source of
the plaintiff's marketing and advertising activities that
formed the basis of the Milliken lawsuit. Pursuant to
§ 193 of the Restatement (Second), the trial court then
evaluated the factors contained in § 6 (2) of the
Restatement (Second) in order to determine whether
Connecticut had a more significant nexus to the underlying
action.6 The trial court concluded that Connecticut
did not have a more significant relationship to the issues
in this case and that the presumption of § 193 of the
Restatement (Second), therefore, was properly applicable.
Accordingly, the trial court ruled that Georgia law
should govern the substantive issues in this case.

The plaintiff claims that the trial court improperly
determined that Georgia is the principal location of the
insured risk in this case. Specifically, the plaintiff claims
that because the Milliken action alleged copyright
infringement and unfair and anticompetitive trade practices
that occurred throughout the United States and
abroad in the course of the plaintiff's business, the
principal location of the insured risk is not located
in Georgia but, instead, is spread throughout all the
locations where the plaintiff conducts its business. We
conclude that, notwithstanding whether Georgia is the
principal location of the insured risk, the general presumption
for contracts contained in § 188 (3) of the
Restatement (Second) of Conflict of Laws (1971)7 compels
the same conclusion, namely, that Georgia law is
applicable to the substantive issue in this case.

In Reichhold Chemicals, Inc. v. Hartford Accident &
Indemnity Co., 243 Conn. 401, 413, 703 A.2d 1132
(1997), on appeal after remand, 252 Conn. 774, 750
A.2d 1051 (2000), we abandoned the ancient lex loci
contractus approach to choice of law, which looked
primarily to the law of the state in which the contract
was made. In its place, we adopted the ‘‘most significant
relationship'' approach of the Restatement (Second) of
Conflict of Laws, for analyzing choice of law issues8
involving contracts. Id.

The starting point under the ‘‘most significant relationship''
approach is § 188 of the Restatement (Second)
of the Conflict of Laws, which provides in relevant part: ‘‘(1) The rights and duties of the parties with
respect to an issue in contract are determined by the
local law of the state which, with respect to that issue,
has the most significant relationship to the transaction
and the parties under the principles stated in § 6.''

We stated in Reichhold Chemicals, Inc., that ‘‘[§] 6
(2) of the Restatement (Second) [of Conflict of Laws],
which is applicable to all substantive areas, sets forth
seven overarching considerations in determining which
state has the ‘most significant relationship': ‘(a) the
needs of the interstate and international systems, (b)
the relevant policies of the forum, (c) the relevant policies
of other interested states and the relative interests
of those states in the determination of the particular
issue, (d) the protection of justified expectations, (e)
the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law
to be applied.'

‘‘Section 188 (2) [of the Restatement (Second) of
Conflict of Laws] lists five contacts to be considered
in applying the principles set forth in § 6 to a contract
dispute: ‘(a) the place of contracting, (b) the place of
negotiation of the contract, (c) the place of performance,
(d) the location of the subject matter of the
contract, and (e) the domicile, residence, nationality,
place of incorporation and place of business of the
parties.' '' Reichhold Chemicals, Inc. v. Hartford Accident&
Indemnity Co., supra, 243 Conn. 409–10. Section
188 (3) of the Restatement (Second) establishes a general
presumption with regard to contracts, namely, that
‘‘[w]hen the place of negotiation and the place of performance
are in the same state, the local law of this state
will usually be applied . . . except when the principles
stated in § 6 require application of some other law.'' 1
Restatement (Second), supra, § 188, comment (f), pp.
582–83. In adopting § 188 of the Restatement (Second)
in Reichhold Chemicals, Inc., we described it as creating
a presumption in favor of the application of the
law of the state where ‘‘the bulk of the contracting
transactions took place . . . .'' Reichhold Chemicals,
Inc. v. Hartford Accident & Indemnity Co., supra, 414.

In the present case, the trial court found that the
contract was entered into in Georgia by the plaintiff
and a representative of the defendant. Furthermore, as
the trial court noted, Georgia is the place of performance
of the contract because the plaintiff's headquarters,
and several of the plaintiff's manufacturing
facilities, are located there. Finally, the policies at issue
contain endorsements specifically required by, and
enforceable under, Georgia law, a further indication
that performance of the insurance policies was to be
in Georgia. These factors indicate that, for the purpose
of the § 188 (3) presumption, ‘‘the bulk of the contracting
transactions'' took place in Georgia, and that the law of that state should apply. Id. The law of Georgia,
therefore, presumptively should be applied unless ‘‘the
principles stated in § 6 require application of some other
law.'' 1 Restatement (Second), supra, § 188, comment
(f), p. 583.

The issue that we must decide next, therefore, is
whether the factors set forth in § 6 of the Restatement
(Second) of Conflict of Laws compel the conclusion
that Connecticut has a more significant relationship to
this dispute than Georgia such that the presumption
in favor of the application of Georgia law would be
overcome. We conclude that Connecticut's relationship
to the dispute in this case is not more significant than
that of Georgia.

We begin our analysis with an examination of the
relevant policies of Connecticut under § 6 (2) (b) of the
Restatement (Second) of Conflict of Laws, which is
the factor upon which the plaintiff primarily relies to
support its argument that Connecticut has the most
significant relationship to this dispute. Specifically, the
plaintiff argues that Connecticut has an interest in
applying its law of notice with regard to insurance contracts
in order to protect the ‘‘justified expectations''
of policyholders who purchase insurance policies from
Connecticut insurance companies. Connecticut notice
law is more lenient than, and thus is in conflict with,
Georgia law on this issue.9

The law of notice, however, is irrelevant to the substantive
issue in this appeal. As the trial court correctly
noted, the issue that we must decide is whether the
insurance policies at issue provide reimbursement for
pre-tender expenses, not whether an insured, by providing
late notice, has forfeited its right to liability coverage
pursuant to those policies. The Connecticut authority
cited by the plaintiff relates only to the notice issue.10
Apparently, the issue of reimbursement for pre-tender
expenses, would present a question of first impression
under the law of Connecticut. The conflict that the
plaintiff asserts exists between the law of Connecticut
and the law of Georgia on this issue, therefore, is
illusory.

Moreover, even if Connecticut's law on the issue of
pre-tender expenses were more favorable to the plaintiff
than the law of Georgia, Connecticut's interest is
limited by the fact that its only contact with this dispute
under § 188 (2) of the Restatement (Second) of Conflict
of Laws is the defendant's incorporation in this state.
As we previously concluded herein, all of the other
contacts to be considered under § 188 (2) are with Georgia.
We conclude, therefore, that, under § 6 (2) (b) of the
Restatement (Second) of Conflict of Laws, Connecticut
does not have an interest in this litigation sufficient to
override the presumption in favor of the applicability
of Georgia law.

We next turn to a consideration, under § 6 (2) (d)
of the Restatement (Second), of the protection of the
parties' justified expectations. This factor is of particular
importance in the realm of contract law. See 1
Restatement (Second), supra, § 188, comment (b), p.
576. There is strong evidence in the present case that
the parties expected Georgia law to govern the interpretation
and enforcement of the insurance policies at
issue. Each policy contained endorsements specifically
required by, and enforceable under, the law of Georgia.
Moreover, noticeably absent from the policies was any
reference to the law of Connecticut. Accordingly, it is
reasonable to infer that the parties understood that,
as a general matter, Georgia law would control any
potential disputes regarding the policies. This fact supports,
rather than defeats, the § 188 presumption that
Georgia law should be applied to the substantive issue
in this case.

Our conclusion that the parties expected Georgia law
to be controlling informs our analysis under § 6 (2) (e)
and (f) of the Restatement (Second) of Conflict of Laws.
We address those provisions in turn.

Section 6 (2) (e) of the Restatement (Second) requires
that we consider ‘‘the basic policies underlying the particular
field of law . . . .'' The commentary to § 188 of
the Restatement (Second), indicates that ‘‘[p]rotection
of the justified expectations of the parties is the basic
policy underlying the field of contracts,'' for the purpose
of § 6 (2) (e) of the Restatement (Second). 1
Restatement (Second), supra, § 188, comment (b), p.
577. Thus, this factor also supports the presumption
that Georgia law is applicable. Additionally, protection
of justified expectations is also relevant to the factor
of certainty, predictability, and uniformity of result
under § 6 (2) (f) of the Restatement (Second). ‘‘The
need for protecting the expectations of the parties gives
importance in turn to the values of certainty, predictability
and uniformity of result. For unless these values
are attained, the expectations of the parties are likely
to be disappointed.'' Id., pp. 576–77. This factor also
provides no support for the proposition that Connecticut
has a more significant relationship with this dispute
than Georgia.

Finally, under § 6 (2) (g) of the Restatement (Second),
which requires that we consider ‘‘ease in the determination
and application of the law to be applied,'' there
exists no burdensome administrative difficulty in the
application of Georgia law sufficient to compel the
application of Connecticut law. ‘‘This is not an area of
the law in which [the] court might find itself grappling
with numerous conflicting and subtly differing bodies of
law.'' Reichhold Chemicals, Inc. v. Hartford Accident&
Indemnity Co., supra, 243 Conn. 422.11

An analysis of the factors contained in § 6 (2) of the Restatement (Second), therefore, leads us to conclude
that the trial court properly determined that Connecticut
has no interest in this dispute sufficient to trump the
presumption that Georgia law applies to the substantive
issue in this case.

II.

We now turn to the substantive issue presented by
this appeal, namely, whether, under Georgia law, the
plaintiff is entitled to be reimbursed by the defendant
for expenses the plaintiff incurred in defending the federal
action brought against it by Milliken. We conclude
that, pursuant to established Georgia law, the plaintiff
is not entitled to reimbursement for such expenses.

We begin by setting forth the applicable standard of
review. Construction of a contract of insurance is an
issue of law; accordingly, our review is de novo. Israel
v. State Farm Mutual Automobile Ins. Co., 259 Conn.
503, 507, 789 A.2d 974 (2002). Under Georgia law, ‘‘[t]he
duty of an insurer to defend its insured is determined
by the contract of insurance. . . . We therefore must
look to the [policies at issue] to determine if the [plaintiff's]
coverage may be deemed to include pre-tender
legal expenses.'' O'Brien Family Trust v. Glen Falls
Ins. Co., 218 Ga. App. 379, 380, 461 S.E.2d 311 (1995).

The following additional facts are necessary to our
resolution of this issue. The plaintiff purchased five,
one year insurance policies from the defendant between
July 1, 1986, and July 1, 1991. Pursuant to these policies,
the plaintiff claims a right to reimbursement for pretender
expenses associated with the Milliken action.
The Milliken action was brought against the plaintiff in
March, 1990, and was settled in September of that year.
The plaintiff alleged that it had incurred more than
$330,000 in defending Milliken's action for copyright
infringement and unfair and anticompetitive trade practices
in the design, sale, and manufacture of certain
office carpeting products. At no time during the pendency
of the litigation did the plaintiff inform the defendant
of the lawsuit or tender defense of the lawsuit to
the defendant. In March, 1991, the plaintiff contacted
the defendant's agent regarding reimbursement of
defense costs, which the defendant denied were available
pursuant to the insurance policies. The plaintiff
claims that because the Milliken action alleged an
‘‘advertising injury'' within the meaning of the policies
issued by the defendant, the defendant, as part of its
duty to defend the plaintiff pursuant to those policies,
must reimburse the plaintiff for expenses it incurred
in defending the Milliken action.

The first two of the insurance policies, which were
issued in 1986 and 1987, included a section entitled
‘‘PERSONAL INJURYANDADVERTISING INJURY LIABILITY
COVERAGE,'' and provided in relevant part:
‘‘(A) The company will pay on behalf of the insured all sums which the insured shall become legally obligated
to pay as damages because of personal injury or advertising
injury to which this insurance applies, sustained
by any person or organization and arising out of the
conduct of the named insured's business . . . and the
company shall have the right and duty to defend any
suit against the insured seeking damages on account
of such injury . . . .'' (Emphasis added.) The remaining
three policies, which were issued in 1988, 1989, and
1990, respectively, contained functionally equivalent
provisions.

The defendant contends that the plaintiff is not entitled
to reimbursement for pre-tender expenses because
the plaintiff failed to comply with its obligations pursuant
to certain provisions set forth in the policies. Those
provisions, as set forth in the first two policies purchased
by the plaintiff and captioned ‘‘Insured's Duties
in the Event of an Occurrence, Claim or Suit,'' provided
in relevant part: ‘‘(b) If claim is made or suit is brought
against the insured, the insured shall immediately forward
to the Company every demand, notice, summons
or other process received by him or his representative.

‘‘(c) . . . The insured shall not, except at his own
cost, voluntarily make any payment, assume any obligation
or incur any expense other than for first aid to
others at the time of accident.'' (Emphasis added.)

The other three policies at issue contain analogous
provisions. In addition, those policies further require
that the insured provide prompt written notice of any
claim or lawsuit to the defendant.

The defendant claims that, because the plaintiff (1)
failed to forward the lawsuit papers to the defendant
immediately after being served with them, and (2)
incurred expenses in defending the Milliken action without
the defendant's consent, the defendant is not obligated
to reimburse the plaintiff for those expenses.
We agree.

Two appellate decisions decided under Georgia law
have addressed the precise issue in this case, namely,
whether an insured may recover costs incurred in
defending a lawsuit prior to tender of the defense of
the lawsuit to the insurer. These cases have established
a rule that an insurer's duty to defend is not triggered
until the insured complies with the provisions in the
insurance policy regarding tender of the defense of the
lawsuit to the insured, and have concluded that costs
incurred by the insured prior to such compliance are
not recoverable pursuant to the policy.

In O'Brien Family Trust v. Glen Falls Ins. Co., supra,
218 Ga. App. 379, the Georgia Court of Appeals analyzed
a claim for pre-tender expenses based on a commercial
general liability policy that contained language similar
to the policies presently at issue. The plaintiffs in
O'Brien Family Trust had incurred substantial expenses in defending over a four year period a lawsuit
that had been brought against them. Id., 380. Prior to
the resolution of the lawsuit, the plaintiffs tendered the
defense of the case to the defendant insurance company.
Id., 379–80. Although the defendant thereafter
defended the lawsuit to its conclusion, the defendant
refused to reimburse the plaintiffs for expenses they
had incurred in defending the lawsuit prior to the time
that defense of the lawsuit was tendered to the defendant.
Id. The plaintiffs thereafter brought an action
against the defendant in which it sought reimbursement
for those pre-tender expenses. Id., 380.

The Georgia Court of Appeals concluded that the
defendant was not obligated to reimburse the plaintiffs
for expenses they incurred before defense of the lawsuit
was tendered to the defendant. Id., 381. The court found
that the plaintiffs had not complied with conditions
set forth in the policy requiring them to provide the
defendant with written notice of the lawsuit and immediately
to send the defendant ‘‘ ‘every demand, notice,
summons or other papers received' '' in any lawsuit
filed against them. Id., 380. Because of the plaintiffs'
lack of compliance with these conditions of the policy,
the defendant was not required to reimburse the plaintiffs
for any pre-tender expenses. Id., 381. The court
stated that the opposite result would ‘‘render contractual
terms necessary to trigger [the defendant's] performance
under the policy meaningless.'' Id.

The issue of reimbursement for pre-tender expenses
under the law of Georgia was next addressed by the
United States Court of Appeals for the Eleventh Circuit
in Elan Pharmaceutical Research Corp. v. Employers
Ins. of Wassau, 144 F.3d 1372 (11th Cir. 1998). In that
case, the plaintiff had been named in a federal patent
infringement action, along with its parent company, and
had tendered the defense of a lawsuit to the defendant
insurance company approximately two months after
the federal action was initiated. Id., 1374. At that time,
the defendant refused to provide the plaintiff with a
defense. Id. Following a favorable disposition of the
lawsuit, the plaintiff brought an action against the
defendant, claiming that the defendant had breached
its duty to defend, and sought reimbursement for costs
it had incurred in defending the underlying action. Id.

The United States Court of Appeals concluded that
the defendant had breached its duty to defend the plaintiff.
Id., 1381. Relying upon the decision of the Georgia
Court of Appeals in O'Brien Family Trust, however, the
federal court limited the defendant's liability to defense
costs incurred after the plaintiff's tender of the defense
of the lawsuit. Id., 1382. The court noted that the language
of the policy at issue in Elan Pharmaceutical
Research Corp., which required the insured to provide
notice of any lawsuit ‘‘ ‘as soon as practicable' '' and
forward all lawsuit papers to the defendant ‘‘immediately''; id.; was ‘‘similar to [the language of] the policy
at issue in O'Brien [Family Trust] in all salient
respects.'' Id., 1381. Accordingly, the United States
Court of Appeals held that, because the defendant's
duty to defend the plaintiff was not triggered until the
tender of the defense of the lawsuit to the defendant,
the defendant was not obligated under the policy to
reimburse the plaintiff for defense costs it had incurred
in the two months preceding the plaintiff's tender of
the defense. Id., 1382.

The pertinent sections of the policies at issue in the
present case are virtually identical, in both language
and import, to those portions of the policies that the
courts in O'Brien Family Trust and Elan Pharmaceutical
Research Corp. found to be controlling. More specifically,
the language of the policies in the present case
is identical to the language of the policies in O'Brien
Family Trust and Elan Pharmaceutical Research Corp.
in two important respects. The policies here require
that the insured: (1) forward legal papers related to
claims or lawsuits ‘‘immediately'' to the insurer; and
(2) provide written notice of lawsuits or claims to the
insurer ‘‘as soon as reasonably possible'' or ‘‘as soon
as practicable.'' It is undisputed that, in the present
case, the plaintiff did not comply with these conditions
until some six months following the resolution of the
Milliken action. Pursuant to the rule set forth in O'Brien
Family Trust and applied in Elan Pharmaceutical
Research Corp., namely, that an insurer's duty to defend
a lawsuit is not triggered until these conditions are
complied with, and that an insured is precluded from
recovering any expenses incurred in defending a lawsuit
prior to such compliance, we conclude that the trial
court properly determined that the defendant in the
present case is not liable for costs the plaintiff incurred
in defending the Milliken action.

Our conclusion is buttressed by the language in the
insurance policies that provides that an insured shall
assist in the conduct of any lawsuits only ‘‘at the [insurer's]
request,'' and that the insured shall not voluntarily
make any payment or incur any expense, other than
for first aid, ‘‘except at [the insured's] own cost . . . .''
The policy thus specifically defines the circumstances
under which an insured may participate in the defense
of a lawsuit or incur costs in such defense. It is undisputed
that the defendant in this case did not request
that the plaintiff assist in the defense of the Milliken
action, that the plaintiff did not obtain the defendant's
consent before incurring expenses in defending the
Milliken action, and that none of the expenses incurred
by the plaintiff were for ‘‘first aid . . . .''

The plaintiff, by defending the action without the
consent of the defendant, clearly acted in contravention
of the policy provisions by failing to obtain the defendant's
consent before incurring expenses in defending the Milliken action. Thus, according to the plain language
of the policies, such costs must be borne by the
plaintiff. Allowing the plaintiff to recover defense costs
under these circumstances would render these provisions
a nullity, a result squarely at odds with controlling
Georgia authority. See O'Brien Family Trust v. Glen
Falls Ins. Co., supra, 218 Ga. App. 381.

The plaintiff contends that, notwithstanding its failure
to comply with the conditions of the policies, the
trial court improperly rendered summary judgment in
favor of the defendant because genuine issues of material
fact exist as to whether: (1) the defendant had
notice of the Milliken suit; (2) the plaintiff was excused
from giving proper notice; and (3) the defendant was
prejudiced by the lack of proper notice. We disagree.

The Georgia Court of Appeals squarely rejected a
similar argument in O'Brien Family Trust. In that
case, the plaintiffs argued that the trial court improperly
rendered summary judgment in favor of the defendant
insurer because the defendant had conceded that a
genuine issue of material fact existed as to whether it
had notice of the underlying lawsuit. Id. In rejecting
that argument, the court stated that, even if such an
issue of fact existed, the judgment of the trial court
nevertheless would be affirmed because ‘‘the question
of whether or when [the defendant insurer] was notified
of the [plaintiffs'] claim for legal expenses is not relevant
to the question of whether such expenses were
covered by the policy.'' (Emphasis added.) Id. The notice
arguments that the plaintiff raises in the present case,
therefore, are inapposite to the issue at hand.

* * *

Click the case caption above for the full text of the Court's opinion.

The judgment is affirmed.

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