Respondents Brief — Shawn C. Leftwich, Petitioner v. State Farm Insurance Company, et al.

No. 23-6136

IN THE SUPREME COURT

OF THE UNITED STATES

SHAWN C. LEFTWICH,

Petitioner,

STATE FARM INSURANCE COMPANY, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Eleventh Circuit

BRIEF IN OPPOSITION

SWIFT, CURRIE, McGHEE & HIERS, LLP

Bradley S. Wolff #186382

Counsel of Record

Brad.Wolff@SwiftCurrie.com

1420 Peachtree Street, NE

Suite 800

Atlanta, Georgia 30309

(404) 874-8800

Attorney for Respondents

COUNTERSTATEMENT OF THE

QUESTION PRESENTED:

Whether Respondents were properly granted a summary judgment in this

property insurance case where the undisputed facts showed that Petitioner’s policy

contained a one-year suit limitation provision and the lawsuit was filed more than

one year after the loss or damage?!

1 Respondent respectfully states that, contrary to the citations in the Petition, this case does not

involve any question of federal law, including Petitioner’s rights under the Fifth and Fourteenth

Amendments to the United States Constitution, the statute of limitations for claims under the Fair

Housing Act, or when a claim is deemed to accrue in other circumstances and in other jurisdictions.

Nor is there any question presented regarding whether Petitioner’s pleadings were reasonably and

liberally interpreted because she was proceeding pro se. Indeed, as noted below, Petitioner did not

file any response to Respondents’ motion for summary judgment.

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1 and Supreme Court

Rule 29.6, Respondent State Farm Fire and Casualty Company certifies that it is a

wholly owned subsidiary of State Farm Mutual Automobile Insurance Company, its

parent corporation. As a mutual insurance company, State Farm Mutual

Automobile Insurance Company has no stock and is not a publicly traded

corporation.

ii

TABLE OF CONTENTS

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TABLE OF AUTHORITIES .........cccccecssccccsseceeesseeeesecesseeeseeeesecasasseseeasesssseeesneeeesereasesens iv

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REASONS FOR DENYING THE PETITION . 0... cececssscesssesessssseeceneceseesssenesserseeeees 4

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TABLE OF AUTHORITIES

Cases

A+ Restorations, Inc. v. Liberty Mut. Fire Ins. Co., 714 F. App’x 923, 925-26 (11th

Cir, 2017) ceccccccssseccossucccsssuccessssssecesssssccesesssuvesesssuecssssusessessuvecsesssssvecessueesesnsuseesssnessessnussesetesusesses 6

Georgia Farm Bureau Mut. Ins. Co. v. Kephart, 211 Ga. App. 423, 489 S.E.2d 682

(1998)......:.sccscsossecsscoeensesesodSssQauy iis S05 ISOS Sensis OSUGUSNSUBUAPUNASG HO NGNSASDNCGUSRAEGI IAG ISHORSUG IBN cb eos pobuloasupassuuetS 5

Thornton v. Georgia Farm Bureau Mut. Ins. Co., 287 Ga. 379, 695 S.E.2d 642 (2010)

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Statutes and Rules

Leftwich v. State Farm Ins. Co., 1:20-CV-3703-MHC, 2021 WL 6690349 (N.D. Ga.

Oct. 25, 2021)... cccccscessecsecsesscssceseeccesessesseseesceseescerseeesaesesseeeeeaceeeeeeenseeueeaeenseaesaeeaeeseesaeenenaees 2

Leftwich v. State Farm Ins. Co., 22-10213, 2023 WL 5607885 (11th Cir. Aug. 30,

2023) ssaswacexnswsunteiansevanasienenasaansexsmicsas katie wes Sih GSSIiS SASS RAS WAS RSAC CERO OTU HGCA RIBS VRIIRIRHS 3

Sup. Ct. Rule 10 wo..cecccccesccsscsssessceesesesesceseessccseeesseesscesssessesseeseeneesceesueesueeaeeeaeeeneeageeneeenseaesenseasenes 4

iv

STATEMENT OF THE CASE

A. Background?

Petitioner Leftwich rented a townhouse located in Loganville, Georgia (the

“Property”). The Property was insured by a renter’s insurance policy issued by

Respondent State Farm Fire and Casualty Company (“State Farm”) which was

effective from January 20, 2019, to January 20, 2020, and covered up to $21,000.00

for loss to personal property and $10,000.00 for mold damage. The policy contained

a suit limitation provision, as follows: “SECTION I — CONDITIONS, 6. Suit

Against Us. No action will be brought against us unless there has been full

compliance with all of the policy provisions. Any action by any party must be

started within one year after the date of loss or damage.”

Leftwich noticed an unusual smell and wetness at the Property as early as

April 2019. On May 2, 2019, Leftwich again noticed an unusual “smell of mold” and

called the maintenance department of the entity that managed the Property to

report it. Three days later, on May 5, 2019, Leftwich also notified the Georgia

Department of Community Affairs and City of Loganville about the moisture.

Leftwich did not notify State Farm of the moisture at the Property at that time.

On July 10, 2019, Leftwich made a claim on her policy related to the moisture

she noticed on May 2, 2019. On July 26, 2019, State Farm denied the claim after

investigation and notified Leftwich that the moisture and concomitant property loss

resulted from repeated seepage of water, which was not covered under the Policy.

2 The facts stated herein are taken from the district court’s summary judgment order dated October

25, 2021. These facts were undisputed in the trial court.

l

B. Procedural History

Leftwich filed her lawsuit, pro se, against State Farm and its employee, Larry

Watts, on July 8, 2020, in the State Court of Fulton County, Georgia. Respondents

removed the lawsuit to the United States District Court for the Northern District of

Georgia. According to the complaint, Leftwich was seeking “compensatory damages

in [an] amount [of] $75,000.00 for emotional distress and [p]unitive damages in [an]

amount of $35,000.00” on account of State Farm’s denial of her property damage

claim.

Following discovery, State Farm and Watts moved for summary judgment.

Respondents argued that they were entitled to judgment as a matter of law on

Leftwich’s claim because, among other reasons, the undisputed evidence

demonstrated that Leftwich filed her lawsuit against State Farm over a year after

she was aware of the moisture issue at the Property and Leftwich never served

Watts with the lawsuit. Leftwich did not respond to the motion for summary

judgment. The district court granted the motion on the above-stated grounds on

October 25, 2021. Leftwich v. State Farm Ins. Co., 1:20-CV-3703-MHC, 2021 WL

6690349 (N.D. Ga. Oct. 25, 2021), reconsideration denied, 1:20-CV-3703-MHC, 2021

WL 6690567 (N.D. Ga. Dec. 20, 2021), appeal dismissed, 22-10213-BB, 2022 WL

2811988 (11th Cir. July 11, 2022), appeal reinstated (Oct. 31, 2022), and appeal

dismissed, 22-10213-BB, 2022 WL 2811988 (llth Cir. July 11, 2022), appeal

reinstated (Oct. 31, 2022), and aff'd, 22-10213, 2023 WL 5607885 (11th Cir. Aug. 30,

2023).

Leftwich appealed from the summary judgment order. However, she

presented no argument concerning the summary judgment granted to Watts and

any claim of error as to that portion of the order was deemed abandoned by the

Eleventh Circuit Court of Appeals. Leftwich v. State Farm Ins. Co., 22-10213, 2023

WL 5607885, *2, fn. 2 (11th Cir. Aug. 30, 2023).3 Upon consideration of the

undisputed facts and well-established Georgia law, the Circuit Court affirmed the

summary judgment granted to State Farm. Id.

The Petition was filed in this Court on November 27, 2023, and placed on the

docket on November 29, 2023.

3 Leftwich similarly makes no argument in her Petition that summary judgment was improperly granted to Watts.

3

REASONS FOR DENYING THE PETITION

A petition for a writ of certiorari will be granted only for compelling reasons.

See Sup. Ct. Rule 10. Here, the Petitioner presents no such compelling issue for this

Court’s review. Specifically, there is no conflict between circuit courts on decisions

involving a matter of an important federal question. There is no conflict between a

decision of a circuit court and a state court of last resort on a matter of an important

federal question. There is no conflict regarding an important federal question

between a U.S. Court of Appeals decision and other Supreme Court decisions. And

the Eleventh Circuit has not so far departed from the accepted and usual course of

judicial proceedings so as to require this Court’s intervention.

Instead, the District Court and the Eleventh Circuit applied well-established

Georgia state law in this diversity matter. That precedent, concerning the

enforcement of contractual suit limitation provisions, when properly applied to the

undisputed facts of the case, resulted in the summary judgment in favor of

Respondent State Farm. The Court of Appeals correctly affirmed that judgment.

Petitioner not only has failed to show that this case meets the “compelling reasons”

standard for review by this Court, she has also failed to show any error in the

rulings of the courts below. Accordingly, the petition should be denied.

The material facts are simple and they are undisputed.‘ Although Leftwich

did not respond to the motion for summary judgment in the District Court, on

4 Petitioner repeats in her petition the same material factual assertions she made below: she

discovered a smell in her apartment in May 2019; she reported the smell to her apartment

management and to the City; and the smell was determined to be caused by mold and excessive

4

appeal she argued the one-year suit limitation should have begun running no

earlier than when State Farm denied her claim. As both the District Court and the

Court of Appeals held, under Georgia law: contractual limitation provisions are

enforceable; unambiguous terms of a contract must be enforced as written; the suit

limitation provision at issue here was unambiguous; and the one-year limitation in

the insurance policy began to run on the date the water damage occurred, not when

Leftwich’s insurance claim was denied (or some later date). Thornton v. Georgia

Farm Bureau Mut. Ins. Co., 287 Ga. 379, 695 S.E.2d 642 (2010); Georgia Farm

Bureau Mut. Ins. Co. v. Kephart, 211 Ga. App. 423, 489 S.E.2d 682 (1993).

The Eleventh Circuit previously examined a similar suit limitation provision

and held that under Georgia law the limitation period is triggered — at the latest —

when the damage is discovered:

“Like any other contract, an insurance policy must be construed

according to its plain language and express terms.” Georgia Farm

Bureau Mut. Ins. Co. v. Kephart, 211 Ga.App. 423, 439 S.E.2d 682, 683

(1993). Though “loss” is not defined in the Policy, it clearly does not

mean “the refusal of the insurer to pay a claim,” as A Plus essentially

argues. Rather, a fair reading of the Policy (and common sense) makes

clear that a “loss” is an adverse event for which coverage is available—

ie., bodily injury, property damage, in some cases theft. In other

words, “loss” takes on its ordinary meaning here. See W. Pac. Mut. Ins.

Co. v. Davies, 267 Ga.App. 675, 601 S.E.2d 363, 367 (2004) (“In

construing a contract of insurance to ascertain the intent of the

parties, the court should give a term or phrase in the contract its

ordinary meaning or common signification as defined by dictionaries,

because they supply the plain, ordinary, and popular sense unless the

words are terms of art.”) .... In this case, the date of the loss was—at

the latest—March 2014, when the Mitchells discovered the damage to

their attic and crawlspace. See Thornton v. Ga. Farm Bureau Mut. Ins.

moisture. The Petition further asserts that the results of moisture and mold testing were reported

to her on July 2, 2019. Yet, Petitioner’s lawsuit was not filed until July 8, 2020.

Co., 287 Ga. 379, 695 S.E.2d 642, 643-44 (2010) (holding that a suit

under a policy with a provision similar to the one in this case was

barred because the limitations period began to run on the date the loss

occurred, rather than on the date the insurer’s investigation window

expired). A Plus waited until April 2016 to file its complaint. It is thus

contractually barred from bringing the suit. See Suntrust Mortg., Inc.

v. Ga. Farm Bureau Mut. Ins. Co., 203 Ga.App. 40, 416 S.E.2d 322, 323

(1992) (noting that Georgia courts have held that suit-limitation

provisions are binding).

At Restorations, Inc. v. Liberty Mut. Fire Ins. Co., 714 F. App’x 923, 925-26 (11th

Cir. 2017).

The same rule applies in this case and, because Petitioner discovered the

mold and excessive moisture in her property more than a year before she filed suit,

the courts below did not err.

CONCLUSION

Based upon the foregoing arguments and authorities, and because neither

the District Court nor the Circuit Court decisions raise important questions of law

requiring this Court’s review, and further because no error is shown in the decisions

of the courts below, Respondent respectfully requests that this Honorable Court

DENY the Petition for Writ of Certiorari.

Respectfully submitted,

SWIFT, CURRIE, McGHEE & HIERS, LLP

Bradley S. Wolff #186382

Counsel of Record

Brad. Wolff@SwiftCurrie.com

Attorney for Respondents

1420 Peachtree Street, NE

Suite 800

Atlanta, Georgia 30309

(404) 874-8800