Adams-Pickett, MD. v. Mag Mutual Insurance Company

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

AUGUSTA DIVISION

DONNA ADAMS-PICKETT, MD, and *

AUGUSTA WOMEN’S HEALTH & *

WELLNESS CENTER, P.C., *

*

Plaintiffs, *

*

v. * CV 122-063

*

MAG MUTUAL INSURANCE COMPANY, *

*

Defendant. *

O R D E R

For the following reasons, the Court GRANTS summary judgment

in favor of Defendant Mag Mutual Insurance Company (“MagMutual”)

on Plaintiffs’ racial discrimination claim under 42 U.S.C. § 1981

and DISMISSES WITHOUT PREJUDICE the state law claims. (Id.)

I. BACKGROUND

This case arises out of a professional liability insurance

policy issued by MagMutual to Plaintiffs Donna Adams-Pickett, MD,

and Augusta Women’s Health & Wellness Center, P.C. (See doc. 1,

“Compl.”.) The Complaint, filed on May 17, 2022, alleges MagMutual

cancelled and refused to reinstate coverage because of Dr. Adams-

Pickett’s race in violation of 42 U.S.C. § 1981, wrongfully

cancelled the policy in violation of O.C.G.A. § 33-24-44, and

breached the Georgia covenant of good faith and fair dealing. (Id.

at 4-7.)

A. Factual Background

Dr. Adams-Pickett is an African American female

Obstetrician/Gynecologist who opened her solo practice in 2008.

(Doc. 64-1, “D SMF,” ¶ 6; Compl., pp. 1-2.) Dr. Adams-Pickett

owns and operates Augusta Women’s Health & Wellness Center, P.C.,

and her husband, Elmer Pickett, serves as Chief Financial Officer

and business manager. (Compl., p. 2; D SMF ¶ 6.)

MagMutual first issued claims-made medical malpractice

insurance to Plaintiffs in October 2008, and renewed coverage for

fourteen years through issuance of the final policy covering

October 2021 to October 2022. (D SMF ¶¶ 2, 4; doc. 87, “P SMF,”

¶ 1.) From 2015 to 2021, five of Dr. Adams-Pickett’s patients

filed malpractice suits against her, with three alleging shoulder

dystocia, a fourth alleging hypoxic ischemic encephalopathy, and

a fifth alleging bilaterial parenchymal frontal and temporal

bleeds. (D SMF ¶¶ 9-13.) By the time MagMutual cancelled coverage

for nonpayment and declined Plaintiffs’ request for reinstatement,

four of these five lawsuits remained pending, MagMutual had settled

the fifth lawsuit, and Plaintiffs’ total “incurred losses,” as

MagMutual uses this term, was $X,XXX,XXX, which includes defense

payments made on open claims, defense and indemnity payments made

on closed claims, and reserves for projected future defense and

indemnity payments on open claims. (D SMF ¶¶ 41-42 (citing doc.

64-4, “Willis Decl.,” ¶ 6).) Plaintiffs’ incurred losses of

$X,XXX,XXX included a total reserve for the four pending lawsuits

of $X,XXX,XXX. (D SMF ¶¶ 41 (citing Willis Decl. ¶ 6); see also

doc. 87-7, “Lewis Dep.,” pp. 65-69; doc. 64-5, “Coffin Dep.,” pp.

84, 86.) MagMutual uses the term “loss history” more broadly to

include not only incurred losses, but also other details such as

the number, status, type, and strength of covered claims. (See

Willis Decl. ¶ 6.)

To understand how Plaintiffs fell behind on premium payments,

one must look back to 2020 when, to alleviate financial hardships

caused by the COVID-19 pandemic, MagMutual created a Premium

Deferral Program (“PDP”). (D SMF ¶ 15.) Plaintiffs enrolled their

2020-2021 policy in the PDP in September 2020. (D SMF ¶ 16; P SMF

¶¶ 8, 10.) MagMutual explained the PDP terms in a notice issued

to all enrollees, stating in relevant part as follows:

Our records indicate that you elected to

participate in our 2020 premium deferral program, and we

wanted to provide you with some important information:

• You will receive separate invoices for your deferred

premium balance and your current policy premium

balance.

• The invoices for your deferred premium will have a

unique account number ending in – EXT.

• Payments will first be applied to any currently due

premium balances that were previously deferred under

the program. For example, if you have both a

currently due deferred premium of $500 and a current

premium of $500 due on March 1 and remit only one

payment of $500, your payment will be applied to the

deferred premium balance. You will still need to

remit the additional $500 to keep your current

policy in good standing.

(D SMF ¶ 19; P SMF ¶ 12.) MagMutual contends it sent this notice

to Plaintiffs by mail, but Plaintiffs do not recall receipt. (D

SMF ¶ 19; P SMF ¶ 12.)

One year after Plaintiffs’ PDP enrollment, on September 21,

2021, MagMutual Senior Account Manager Kimberly McGee Coffin

emailed Dr. Adams-Pickett, informing her of the premium payment

schedule for both Plaintiffs’ automatically renewed 2021-2022

policy and the deferred premium for the 2020-2021 policy. (D SMF

¶ 23; P SMF ¶ 14.) Due dates for both were October 1, 2021;

January 1, 2022; and April 1, 2022. (D SMF ¶ 23.) In addition,

the email included a July 1, 2022, due date for a fourth payment

on the renewed policy. (Id.) It is undisputed Plaintiffs received

this email because Dr. Adams-Pickett followed up with a reply email

more than three months later, on January 3, 2022, requesting

enrollment in another COVID assistance program. (Id. ¶ 28.)

Plaintiffs timely made the payments due on October 1, 2021,

for both the renewed policy and deferred premium. (Id. ¶ 27.) On

December 2, 2021, MagMutual mailed separate invoices for the

January 1, 2022, premiums due on both policies. (Id.) The amounts

due were $XX,XXX for the renewed policy and $XX,XXX.XX for the

deferred premium. (Id. ¶ 23.) Plaintiffs contend they did not

receive the invoice for the deferred premium. (Id. ¶ 30.)

Plaintiffs failed to pay both premiums. (See id. ¶ 29.) Thus,

MagMutual automatically issued a Notice of Intent to Cancel

(“Notice”) dated January 17, 2022. (D SMF ¶ 29; P SMF 16.) The

Notice warned Plaintiffs that, to avoid cancellation of coverage,

they must pay the overdue premium on the renewed policy of

$XX,XXX.XX by February 6, 2022. (P SMF ¶¶ 16, 18.) The Notice

did not mention the overdue deferred premium of $XX,XXX.XX. (P

SMF ¶¶ 16, 18.)

On January 28, 2022, Mr. Pickett called MagMutual to inquire

about the minimum balance due to avoid cancellation of the policy.

(D SMF ¶ 31; P SMF ¶ 17.) A MagMutual accounting employee informed

Mr. Pickett that, to avoid cancellation of the renewed policy, he

would need to pay $XX,XXX, the overdue amount on the renewed policy

as referenced in the January 17th Notice. (D SMF ¶ 31; P SMF

¶¶ 16-17.) Mr. Pickett did not inquire about payments due for the

deferred premium, nor did the accounting employee offer any

information about deferred premiums in general or the unpaid

deferred premium of $XX,XXX.XX due on January 1, 2022. (See D SMF

¶ 31; P SMF ¶ 17.) Mr. Pickett paid $XX,XXX, and consistent with

the accounting employee’s advice, MagMutual initially credited the

payment to the renewed policy as the receipt issued by MagMutual

confirmed. (D SMF ¶ 31; P SMF ¶¶ 16-17.)

After the January 28th phone call and payment, however,

MagMutual ran a receivables report that listed as unpaid the

deferred premium due January 1, 2022. (D SMF ¶ 33.) Pursuant to

the PDP conditions, MagMutual accounting personnel manually

transferred the entire January 28th payment from the renewed policy

to the deferred premium. (D SMF ¶ 31; P SMF ¶ 20; see also D SMF

¶ 19 (“Payments will first be applied to any currently due premium

balances that were previously deferred under the program.”).) As

a result of this transfer, MagMutual’s records reflected

nonpayment of the January 1, 2022, premium due on the renewed

policy. (D SMF ¶ 34; see also P SMF ¶ 20.) MagMutual did not

notify Plaintiffs of the payment transfer or its consequences. (P

SMF ¶ 26; see also D SMF ¶¶ 33-34.)

Because the premium balance transfer resulted in an overdue

balance on the renewed policy, MagMutual automatically cancelled

the renewed policy and issued a Cancellation Endorsement to

Plaintiffs on or around February 6, 2022. (D SMF ¶ 34; P SMF

¶ 24.) Both the policy cancellation and related issuance of the

Cancellation Endorsement occurred automatically with no

involvement of MagMutual personnel. (D SMF ¶ 34.)

When MagMutual cancels a policy, the underwriting department

must approve any reinstatement. (D SMF ¶ 35; P SMF ¶ 17.) On

February 7, 2022, Jeremy Leal, the MagMutual Claims Analyst

overseeing the open lawsuits against Plaintiffs, emailed Xavier

Lewis, Senior Underwriter, informing him of the status of the four

pending lawsuits against Plaintiffs. (D SMF ¶ 36; P SMF ¶ 31.)

Mr. Leal’s email was unprompted and unrelated to cancellation of

the policy the day prior. (See D SMF ¶ 36; see also P SMF ¶ 32.)

Mr. Leal does not have access to information concerning the status

of policies and stated in his email he was “not sure if [Dr. Adams-

Pickett] is still insured with us or not.” (See D SMF ¶¶ 36, 38;

P SMF ¶¶ 31-32.) That same day, Mr. Lewis reviewed Plaintiffs’

policy status and forwarded Mr. Leal’s email to Austin Marshall

and Debbie Willis, other underwriting department personnel, noting

Plaintiffs’ policy was “just cancelled for non-payment” and

suggesting they “think about whether we want to reinstate.” (D

SMF ¶¶ 39, 41; P SMF ¶ 31.)

On that same date, after reviewing Plaintiffs’ policy status,

loss history, and open claims, Ms. Willis decided MagMutual would

deny any request for reinstatement of Plaintiffs’ policy and

emailed Ms. Coffin to inform her of this decision. (D SMF ¶¶ 42,

44; P SMF ¶ 31.) Ms. Willis, also an African American female, was

unaware of Dr. Adams-Pickett’s race at the time she made this

decision. (D SMF ¶ 43; Willis Decl. ¶ 1.) Furthermore,

MagMutual’s insurance applications do not request information

concerning race, and the underwriting department neither solicits

nor obtains such information. (D SMF ¶¶ 3, 40.) Ms. Willis

declared she “would have made the same decision not to reinstate

Dr. Adams-Pickett’s cancelled 2021-2022 insurance policy even if

she was a different race and not African-American.” (Willis Decl.

¶ 8.)

The next day, Ms. Coffin emailed Dr. Adams-Pickett to explain

MagMutual cancelled the renewed policy for nonpayment and made a

final decision to not reinstate coverage because of Plaintiffs’

loss history. (D SMF ¶¶ 44, 46; P SMF ¶¶ 27, 39, 43.) Dr. Adams-

Pickett requested reconsideration, arguing (1) she never received

an invoice for the January 1, 2022, payment on the deferred

account; (2) MagMutual failed to inform her of the premium balance

transfer prior to cancellation; and (3) had she been aware of the

transfer, she would have made another payment to avoid

cancellation. (P SMF ¶ 27.) MagMutual rejected the

reconsideration request. (D SMF ¶ 47; P SMF ¶ 27.)

With Ms. Coffin’s assistance, Plaintiffs obtained replacement

coverage through a partner broker of MagMutual. (D SMF ¶¶ 47-48,

50-51; P SMF ¶¶ 65-66.) Dr. Adams-Pickett submitted applications

to seven insurers, only three of which offered coverage in light

of Plaintiffs’ claims and loss history. (D SMF ¶¶ 48, 50-51, 54.)

MagMutual continued to defend and indemnify Plaintiffs in the

malpractice lawsuits filed during MagMutual coverage. (D SMF ¶

60.)

II. LEGAL STANDARD

Summary judgment is appropriate only if “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). Facts are

“material” if they could “affect the outcome of the suit under the

governing [substantive] law.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). The Court must view the facts in the

light most favorable to the non-moving party, Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986),

and must draw “all justifiable inferences in [its] favor.” United

States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th

Cir. 1991) (en banc) (citation omitted and internal quotation marks

omitted).

The moving party has the initial burden of showing the Court,

by reference to materials on file, the basis for the motion.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). How to carry

this burden depends on who bears the burden of proof at trial.

Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).

When the non-movant has the burden of proof at trial, the movant

may carry the initial burden in one of two ways – by negating an

essential element of the non-movant’s case, or by showing that

there is no evidence to prove a fact necessary to the non-movant’s

case. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 606-08 (11th

Cir. 1991) (explaining Adickes v. S.H. Kress & Co., 398 U.S. 144

(1970), and Celotex, 477 U.S. 317). Before the Court can evaluate

the non-movant’s response in opposition, it must first consider

whether the movant has met its initial burden of showing that there

are no genuine issues of material fact and that it is entitled to

judgment as a matter of law. Jones v. City of Columbus, 120 F.3d

248, 254 (11th Cir. 1997) (per curiam). A mere conclusory

statement that the non-movant cannot meet its burden at trial is

insufficient. Clark, 929 F.2d at 608.

If – and only if – the movant carries its initial burden, the

non-movant may avoid summary judgment only by “demonstrat[ing]

that there is indeed a material issue of fact that precludes

summary judgment.” Id. When the non-movant bears the burden of

proof at trial, the non-movant must tailor its response to the

method by which the movant carried its initial burden. Id. If

the movant presents evidence affirmatively negating a material

fact, the non-movant “must respond with evidence sufficient to

withstand a directed verdict motion at trial on the material fact

sought to be negated.” Fitzpatrick, 2 F.3d at 1116. If the movant

shows an absence of evidence on a material fact, the non-movant

must either show that the record contains evidence that was

“overlooked or ignored” by the movant or “come forward with

additional evidence sufficient to withstand a directed verdict

motion at trial based on the alleged evidentiary deficiency.” Id.

at 1116-17. The non-movant cannot carry its burden by relying on

the pleadings or by repeating conclusory allegations contained in

the complaint. See Morris v. Ross, 663 F.2d 1032, 1033-34 (11th

Cir. 1981). Rather, the non-movant must respond with affidavits

or as otherwise provided by Federal Rule of Civil Procedure 56.

Federal Rule of Civil Procedure 56 requires a party disputing a

fact to cite “to particular parts of materials in the record,” and

an affidavit or declaration used to oppose a summary judgment

motion “must be made on personal knowledge, set out facts that

would be admissible in evidence, and show that the affiant or

declarant is competent to testify on the matters stated.” Fed. R.

Civ. P. 56(c)(1) & (4).

Here, MagMutual argues summary judgment on the § 1981 claim

is proper for the following reasons: (1) reinstatement of a

cancelled policy is not a protected right under § 1981; (2) there

can be no discriminatory intent since cancellation occurred

automatically due to nonpayment, MagMutual does not keep records

concerning the race of its policyholders, and Ms. Willis denied

reinstatement without knowing Dr. Adams-Pickett’s race; and (3)

MagMutual cancelled coverage because Plaintiffs fell behind on

premium payments, and refused to reinstate coverage because

Plaintiffs’ loss history was extraordinary. (See doc. 64.) As

explained below, no reasonable juror could find intentional race

discrimination in violation of § 1981 because the undisputed

evidence shows no discriminatory intent and, instead, demonstrates

compelling, legitimate, and nondiscriminatory reasons for

MagMutual to cancel coverage and deny reinstatement.

III. DISCUSSION

A. MagMutual Is Entitled to Summary Judgment on Plaintiffs’

§ 1981 Racial Discrimination Claim

Plaintiffs have identified no direct evidence of

discrimination. In a § 1981 case based on circumstantial evidence,

the burden-shifting test derived from McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), applies. Under that test, a plaintiff

must first establish a prima facie case of discrimination, which

“creates a rebuttable presumption that the [defendant] unlawfully

discriminated against her.” Brooks v. Cnty. Comm’n, 446 F.3d 1160,

1162 (11th Cir. 2006) (citation omitted) (internal quotation marks

omitted). If the plaintiff demonstrates a prima facie case, the

burden shifts to the defendant to offer legitimate, non-

discriminatory reasons for its actions. Id. If the defendant

offers legitimate, nondiscriminatory reasons, the burden shifts

back to the plaintiff to rebut those reasons and show they are

merely pretext for discrimination. Id. “Although the intermediate

burdens of production shift back and forth, the ultimate burden of

persuading the trier of fact that the [defendant] intentionally

discriminated against the [plaintiff] remains at all times with

the plaintiff.” Id. (citation omitted) (internal quotation marks

omitted).

In a non-employment § 1981 case, the prima facie case requires

a plaintiff to show: “(1) that she is a member of a protected

class; (2) that the allegedly discriminatory conduct concerned one

or more of the activities enumerated in the statute; . . . and (3)

that the defendants treated plaintiff less favorably with regard

to the allegedly discriminatory act than the defendants treated

other similarly situated persons who were outside plaintiff’s

protected class.” Benton v. Cousins Props., Inc., 230 F. Supp. 2d

1351, 1370 (N.D. Ga. 2002). “[T]he third prong requires plaintiff

to show an apt comparator of a different race who was not subjected

to the same harsh treatment with regard to the enforcement of a

contract as was the plaintiff.” Id.

1. Plaintiffs Fail to Establish a Prima Facie Case of Racial

Discrimination Because There Is No Evidence of More

Favorable Treatment to Comparator Policyholders

It is undisputed the first prong of the prima facie case is

satisfied because Dr. Adams-Pickett is African American. Although

MagMutual contests the second prong, the Court will assume for the

sake of argument it is also satisfied. Where Plaintiffs fail

completely is the third prong because they have failed to show

MagMutual treated them less favorably in policy cancellations and

non-reinstatement than other similarly situated persons outside

the protected class.

From the start, common sense dictates there is little chance

of racial discrimination where, as here, MagMutual has presented

undisputed evidence (1) it does not maintain any information

regarding the race of its policyholders; (2) computer processes

automatically cancel coverage due to nonpayment; and (3) Ms.

Willis, the MagMutual Senior Underwriter who denied Plaintiffs’

request for reinstatement after cancellation, is an African

American female herself who had no way of determining Dr. Adams-

Pickett’s race and no personal knowledge she was African American.

See Reynolds v. Glynn Cnty. Bd. of Educ., 968 F. Supp. 696, 705

(S.D. Ga. 1996) (“[T]he Board members’ lack of knowledge of

Cooper’s race precludes a reasonable juror from finding that the

Board applied a [discriminatory] policy.”), aff’d, 119 F.3d 11

(11th Cir. 1997); see also Clay v. Steak & Shake, Inc., No. 120-

CV-03195, 2022 WL 1699499, at *10 (N.D. Ga. Jan. 24, 2022), adopted

sub nom. Clay v. Steak n Shake, Inc., 2022 WL 1691183 (N.D. Ga.

Mar. 2, 2022) (“[T]he ultimate decisionmaker[] was the same race

as Plaintiff, which undercuts any argument that race was the but-

for cause of his termination.”); cf. Brungart v. BellSouth

Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000) (“A decision

maker cannot have been motivated to retaliate by something unknown

to him.”).

Laboring hard against these seemingly insurmountable

headwinds, Plaintiffs served discovery requests seeking

information from MagMutual concerning treatment of other

policyholders who enrolled in the PDP, suffered cancellation due

to nonpayment, and/or requested reinstatement after cancellation.

Because MagMutual does not track the race of its policyholders,

the spreadsheets it produced in response cannot, on their face, be

used to determine whether MagMutual treated African American

policyholders more or less favorably than policyholders of

different races. MagMutual mistakenly provided the full names of

its policyholders in earlier versions of the spreadsheets but

clawed them back due to privacy concerns and substituted them with

spreadsheets redacting policyholder names. Prior to the claw back,

Dr. Adams-Pickett “researched some of these policy owners on the

internet and easily found [race] information available to me

through websites, Facebook, LinkedIn, and similar domains.” (Doc.

90-1, “Dr. Adams-Pickett Aff.,” ¶ 6.)

Dr. Adams-Pickett discerned from her own review of the

spreadsheets and internet research that, for ten policyholders who

are not African American, MagMutual applied premium payments to

the current, renewed policy despite an outstanding balance on the

“deferred accounts[] to keep those policies current/active.”

(Doc. 86, p. 7 (citing Dr. Adams-Pickett Aff. ¶¶ 53(a)-(h), (t),

(w)).) In contrast, MagMutual followed the PDP terms for

Plaintiffs’ account by transferring the premium payment to the

deferred premium account. There are at least three reasons why

Dr. Adams-Pickett’s gleaning of this information from the

spreadsheets and internet is woefully inadequate to carry

Plaintiffs’ burden of proffering admissible evidence of less

favorable treatment.

First, an affidavit offered in opposition to summary judgment

must be made on personal knowledge. Fed. R. Civ. P. 56(c). Dr.

Adams-Pickett concedes she has no personal knowledge of the

purported comparators’ race. Instead, she searched “websites,

Facebook, LinkedIn, and similar domains” to determine the alleged

comparators were white, Indian, and Asian. (Dr. Adams-Pickett

Aff. ¶ 6.) Plaintiffs concede Dr. Adams-Pickett merely “researched

the visual appearance(s)” online of people matching the names of

the policyholders. (Doc. 95, p. 3.) Dr. Adams-Pickett thus

assumed the photos were accurate depictions of the policyholders

and made assumptions about their race based solely on these images.

(Id.)

Such a speculative effort underscores the purpose and

importance of Rule 56, which requires “the requisite personal

knowledge must concern facts as opposed to conclusions,

assumptions, or surmise.” Perez v. Volvo Car Corp., 247 F.3d 303,

316 (1st Cir. 2001); see also Levinson v. Landsafe Appraisal

Servs., Inc., 558 F. App’x 942, 946 (11th Cir. 2014) (“[The]

affidavit rests on unsupported speculation that, standing alone,

is insufficient to raise a genuine issue of material fact.”); Ellis

v. England, 432 F.3d 1321, 1327 (11th Cir. 2005) (per curiam)

(“[A]ffidavits based, in part, upon information and belief, rather

than personal knowledge, are insufficient to withstand a motion

for summary judgment.”). Accordingly, Dr. Adams-Pickett’s

affidavit is insufficient to establish as fact the race of any of

the purported comparators.

Second, Dr. Adams-Pickett’s guess as to the race of these

policyholders based on unauthenticated information she found on

the internet is obviously inadmissible hearsay. See Fed. R. Evid.

801(c); see also Geter v. Schneider Nat’l Carriers, Inc., No. 1:20-

CV-1148-SCJ, 2022 WL 1231706, at *4 (N.D. Ga. Mar. 21, 2022)

(excluding affiant’s conclusions drawn from calendar not submitted

with affidavit), aff'd, No. 22-11285, 2023 WL 7321610 (11th Cir.

Nov. 7, 2023). “Although a hearsay statement can be considered at

summary judgment if it can be reduced to admissible evidence at

trial, the ‘possibility that unknown witnesses will emerge to

provide testimony . . . is insufficient to establish that the

hearsay statement could be reduced to admissible evidence at

trial.’” Carrizosa v. Chiquita Brands Int’l, Inc., 47 F.4th 1278,

1303 (11th Cir. 2022) (quoting Jones v. UPS Ground Freight, 683

F.3d 1283, 1294 (11th Cir. 2012)). Because Plaintiffs have failed

to explain how they might reduce the hearsay to admissible evidence

at trial, and no solution is obvious or even likely based on the

limited information provided by Plaintiffs, it cannot be

considered at summary judgment.

Third, even if the Court were to accept Dr. Adams-Pickett’s

assumptions about race, Plaintiffs still fail to identify

“comparators of a different race who were ‘similarly situated in

all material respects’ and were not subject to the same

mistreatment.” Ziyadat v. Diamondrock Hosp. Co., 3 F.4th 1291,

1296 (11th Cir. 2021) (quoting Lewis v. City of Union City, Ga.,

918 F.3d 1213, 1220 n.5 (11th Cir. 2019) (en banc)). With respect

to cancellation, many of the alleged comparators suffered the same

automatic cancellation for nonpayment as Dr. Adams-Pickett, (see

Dr. Adams-Pickett Aff. ¶ 6), some only enrolled in the PDP after

cancellation and during reinstatement, (see id. ¶¶ 6(b)-(c), (e)-

(g)), and others never enrolled in the PDP, (see id. ¶¶ 6(i)-(s),

(u)-(v)). Accordingly, Plaintiffs’ attempts to argue the transfer

of the January 28th payment and automatic cancellation of the

policy are evidence of less favorable treatment fail because they

have not identified policyholders who were similarly situated when

MagMutual took these actions. Moreover, Dr. Adams-Pickett

conceded she lacked material information concerning other

comparators. (See id. ¶¶ 6(h) (conceding insufficient information

to compare pre-cancellation account status), (t) (unclear whether

policyholder enrolled in PDP), (w) (unable to surmise race).)

Dr. Adams-Pickett cries foul because, as to some of the

“white” policyholders she identified through her internet

searches, MagMutual granted their requests for reinstatement and

was more accommodating to them with respect to partial and late

payments. (See id. ¶ 6.) But Plaintiffs present no evidence of

the loss histories for these comparators and contend the loss

histories are irrelevant. (See doc. 86; P SMF ¶¶ 53, 55; doc.

95.) It is impossible, however, to find substantial similarity

and unequal treatment when (1) the sole and undisputed basis for

denying Plaintiffs’ request for reinstatement is her loss history;

and (2) Plaintiffs have utterly failed to provide any information

concerning the loss histories of the alleged comparators. There

is simply nothing to compare.

A plaintiff who fails to present a prima facie case of

discrimination “may still be able to prove her case with what we

have sometimes called a convincing mosaic of circumstantial

evidence that would allow a jury to infer intentional

discrimination by the decisionmaker.” Tynes v. Fla. Dep’t of Juv.

Just., 88 F.4th 939, 946 (11th Cir. 2023) (internal quotation marks

and citations omitted). Plaintiffs contend as much here, but there

is no evidence in the record to suggest race played any role in

the transfer of the January 28th payment, the initial cancellation

due to nonpayment, or the denial of Plaintiffs’ request for

reinstatement. No reasonable juror could find otherwise when

construing the entire evidentiary record in the light most

favorable to Plaintiffs.

Plaintiffs also allude to a cat’s paw theory of liability,

merely pointing out at least some MagMutual personnel who had

direct dealings with Dr. Adams-Pickett were aware of her race.

The theory is inadequately presented and thus waived. McCreight

v. Auburn Bank, No. 22-12577, 2024 WL 4232440, at *6 (11th Cir.

Sept. 19, 2024) (“We ‘rely on the parties to frame the issues’ by

‘advancing the facts and arguments entitling them to relief.’ So

a plaintiff wishing to ‘prevail on a particular theory of

liability’ must ‘present that argument to the district court.’”

(citations omitted)); see also Sapuppo v. Allstate Floridian Ins.

Co., 739 F.3d 678, 681 (11th Cir. 2014). The claim fails on the

merits as well for two reasons. First, no human made the decision

to cancel coverage for nonpayment. It is undisputed the process

occurred automatically upon Plaintiffs’ failure to remit payment.

Second, the sole decisionmaker who determined MagMutual would not

reinstate coverage after cancellation was Ms. Willis, also an

African American female, and it is undisputed that she was unaware

of Dr. Adams-Pickett’s race at the time she made this decision.

(D SMF ¶ 43; Willis Decl. ¶ 1); see McCreight, 2024 WL 4232440, at

13 (explaining, in retaliation context, “mere speculation” lower-

level personnel “could have told” decisionmaker about protected

conduct is “too attenuated”).

For all of these reasons, Plaintiffs have failed to establish

a prima facie case of racial discrimination under § 1981.

2. Even If Plaintiffs Could Establish a Prima Facie Case of

Racial Discrimination, Plaintiffs Fail to Demonstrate

Pretext

Denying any discriminatory intent, MagMutual argues it

cancelled coverage because Plaintiffs failed to make timely

premium payments, and it denied reinstatement after cancellation

because of Plaintiffs’ loss history. In support, MagMutual tenders

the following undisputed facts:

(1) Plaintiffs missed their deadline of January 1,

2022, to make scheduled payments on the renewed

policy and the PDP deferred premium;

(2) Plaintiffs made a payment of $XX,XXX on January 28,

2022, intending the payment to be applied to the

renewed policy, but still failed to pay the

deferred premium due on January 1, 2022;

(3) Pursuant to the plain terms of the PDP, MagMutual

transferred the payment from the renewed policy to

the overdue deferred premium;

(4) The transfer caused the premium for the renewed

policy to be remain overdue and owed;

(5) MagMutual automatically cancelled the renewed

policy for nonpayment on February 6, 2022;

(6) MagMutual Senior Underwriter Ms. Willis, an African

American female like Dr. Adams-Pickett, denied

Plaintiffs’ reinstatement request due to

Plaintiffs’ loss history; and

(7) Ms. Willis’s decision to deny reinstatement is

consistent with MagMutual’s denial of every single

reinstatement request made by policyholders with

similar incurred losses during the twelve-year

period of 2010 to 2022.

To show pretext, Plaintiffs’ evidence “must reveal such

weaknesses, implausibilities, inconsistencies, incoherencies or

contradictions in [Defendant’s] proffered legitimate reasons for

its actions that a reasonable factfinder could find them unworthy

of credence.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763,

771 (11th Cir. 2005) (per curiam) (quotation omitted). And it is

the Court’s job to “draw[ ] the lines on what evidence is

sufficient to create an issue on pretext.” Rojas v. Florida, 285

F.3d 1339, 1344 (11th Cir. 2002).

In an attempt to show pretext with respect to the transfer of

the January 28th payment and initial cancellation, Plaintiffs

again rely on the same contentions regarding purported comparators

Dr. Adams-Pickett found using the clawed back spreadsheets and

unspecified internet information. The Court rejects these

arguments for the same reasons stated in section III(A)(1), supra.

With respect to Ms. Willis’s decision to deny reinstatement

after cancellation due to the severity of Plaintiffs’ loss history,

Plaintiffs claim (1) their loss history was not unusual for an

obstetrician/gynecologist; (2) MagMutual renewed their coverage

previously with substantially the same loss history, (doc. 86, p.

19); (3) MagMutual set the reserves too high on the open lawsuits,

citing in support MagMutual’s alleged characterization of these

lawsuits as “strongly defensible”; and (4) Dr. Adams-Pickett’s

white colleagues at Doctors Hospital easily maintained their

malpractice coverage despite comparable or more severe loss

histories and claims, (P SMF ¶ 55). These arguments fail to

establish pretext for the following reasons.

First, every MagMutual employee who offered an opinion on the

subject confirmed Plaintiffs’ loss history was not only severe but

also extraordinary to the point of being nearly unprecedented.

Plaintiffs offer no evidence to suggest otherwise. Indeed, it is

undisputed that, of all MagMutual medical malpractice

policyholders from 2010 to 2022, only seven had loss histories

comparable to Plaintiffs’, and MagMutual canceled coverage for all

seven. (Doc. 64-6, p. 12; D SMF ¶ 65.) Ms. Willis testified by

declaration that Plaintiffs’ loss history “was unacceptably high”

and four open lawsuits for a solo practitioner was “highly

unusual.” (Willis Decl., ¶ 6.) Ms. Coffin testified at her

deposition, “I had not ever seen a loss history that severe.”

(Coffin Dep., p. 96.) Mr. Wienges described Dr. Adams-Pickett’s

loss history as “very prolific.” (Doc. 64-11, p. 13.) While Mr.

Lewis did testify, as Plaintiffs point out, that XXX claims over

ten years would not be “unusual,” (Lewis Dep., p. 71), this

statement was generalized. When presented specifically with

Plaintiffs’ claims history, Mr. Lewis stated Plaintiffs’ XXXX open

claims were “not routine.” (Lewis Dep., p. 81.)

Second, Plaintiffs correctly point out MagMutual renewed

coverage without any question as recently as October 2021, just

four months before cancellation and denial of reinstatement.

MagMutual counters, however, by explaining it automatically

renewed coverage with no underwriting involvement, and established

procedures require approval by underwriting prior to reinstatement

of a cancelled policy. (Doc. 64, p. 5; D SMF ¶ 21.) After

reviewing Plaintiffs’ policy status, loss history, and open

claims, Ms. Willis denied Plaintiffs’ request for reinstatement.

(D SMF ¶¶ 42, 44; P SMF ¶ 31.) Accordingly, Plaintiffs’ reliance

on the unpublished case Lewis v. Sch. Bd. of Palm Beach Cnty.,

Fla., 850 F. App’x 674 (11th Cir. 2021) (per curiam), is

inapposite. There, an employee received a positive performance

review shortly before being terminated from his position, which

was inconsistent with the non-discriminatory reasons later

presented for the termination. See id. at 680. But a positive

performance review personally issued by the decisionmaker who

later takes adverse action is incomparable to an automatic policy

renewal requiring no involvement of MagMutual personnel, followed

by a decision not to reinstate coverage due to an indisputably

atrocious loss history. Thus, Plaintiffs’ prior, automatic

renewals of their policy do not demonstrate pretext.

Third, regardless of whether MagMutual characterized the

four open lawsuits as highly defensible, Plaintiffs have submitted

no evidence or expert opinion to suggest MagMutual set the reserve

amounts too high. The Court will not, and indeed cannot, second-

guess a business judgment, especially where there is no basis for

determining the reserves were incorrect or intentionally set too

high due to racial animus. See Rojas, 285 F.3d at 1344.

Fourth, Dr. Adams-Pickett testified that, as department chair

at Doctors Hospital, she reviewed loss histories of colleagues who

never experienced problems renewing coverage and “her own loss

history was comparable or contained substantially fewer number of

claims/cases.” (P SMF ¶ 55.) Much like her internet research for

comparators, however, Dr. Adams-Pickett fails to identify her

colleagues and relies on unspecified information concerning their

loss histories that is unauthenticated and inadmissible hearsay.

Furthermore, as Dr. Adams-Pickett admitted during her deposition,

not all of her colleagues were insured by MagMutual or practiced

the same medical specialty. (See Dr. Adams-Pickett Dep., pp. 206-

07.) “Inferences based upon speculation are not reasonable.”

Lewis, 850 F. App’x at 679 (citing Kernel Records Oy v. Mosley,

694 F.3d 1294, 1301 (11th Cir. 2012)).

The evidence Plaintiffs present – to the extent it is

admissible and competent for summary judgment purposes - simply

does not reveal “weaknesses, implausibilities, inconsistencies,

incoherencies or contradictions” in Defendant’s legitimate

business reasons such that a jury could find them “unworthy of

credence.” Vessels, 408 F.3d at 771; see also McCreight, 2024 WL

4232440, at *7.

Because Plaintiffs have failed to present evidence from which

a reasonable juror could infer intentional discrimination, their

§ 1981 claim fails as a matter of law and MagMutual’s motion is

GRANTED as to this claim.

Before turning to the state law claims, the Court would be

remiss if it failed to acknowledge the obvious inadequacies in

MagMutual’s treatment of Plaintiffs during the critical period of

January and February 2022. MagMutual instructed Mr. Pickett that

Plaintiffs must only pay the overdue premium on the renewed policy

to maintain coverage, never mentioned a need to pay the deferred

premium, and did not explain payment would be transferred to the

deferred premium and leave the renewed policy past due and subject

to cancellation. When Mr. Pickett made the payment as instructed,

MagMutual did not notify Plaintiffs of the premium payment transfer

or issue a second notice of cancellation, but instead cancelled

coverage without further warning or explanation. However,

mistreatment of a policyholder is not tantamount to racial

discrimination. That “kind of inquiry—whether a business decision

is wise or nice or accurate—is precluded by [Eleventh Circuit

precedent].” Rojas, 285 F.3d at 1344. In fact, a defendant may

act “for a good reason, a bad reason, a reason based on erroneous

facts, or for no reason at all, as long as it [ ] is not for a

discriminatory reason.” Brown v. Am. Honda Motor Co., 939 F.2d

946, 951 (11th Cir. 1991) (alteration in original) (citation

omitted) (internal quotation marks omitted).

B. The Court Declines to Exercise Supplemental Jurisdiction Over

Plaintiffs’ State Law Claims

Having granted summary judgment to MagMutual on Plaintiffs’

sole federal claim, the Court declines to exercise supplemental

jurisdiction over Plaintiffs’ state law claims. See 28 U.S.C.

§ 1367(c) (authorizing district court to decline exercise of

supplemental jurisdiction when it has dismissed all claims under

which it has original jurisdiction); see also Raney v. Allstate

Ins. Co., 370 F.3d 1086, 1089 (lith Cir. 2004) (“We have encouraged

district courts to dismiss any remaining state claims when, as

here, the federal claims have been dismissed prior to trial.”)

(citing L.A. Draper & Son v. Wheelabrator-Frye, Inc., 735 F.2d

414, 428 (11th Cir. 1984)).

Iv. CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that

MagMutual’s motion for summary judgment, (doc. 50), is GRANTED as

to Plaintiffs’ federal law claim arising under 42 U.S.C. § 1981.

The Court declines to exercise supplemental jurisdiction over

Plaintiffs’ state law claims, and therefore those claims are

DISMISSED WITHOUT PREJUDICE. The Clerk is directed to enter

JUDGMENT in favor of MagMutual on the federal law claim, TERMINATE

all other pending motions, if any, and CLOSE this case.

ORDER ENTERED at Augusta, Georgia, this 30th day of September,

2024.

HONORABLE J. RANDAL HALL

UNTTED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA

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