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

> District Court, S.D. Georgia · September 30, 2024

URL: https://www.frixlaw.com/law-library/cases/10644527

## Case

- **Court:** District Court, S.D. Georgia
- **Decided:** September 30, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10644527

## How later opinions describe it (automated extraction)

- explaining Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970), and Celotex, 477 U.S. 317

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10644527. Public record. Not legal advice.