                                   WHOLE COURT

                    NOTICE: Motions for reconsideration must be
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                               http://www.gaappeals.us/rules/


                                                                       July 15, 2014




In the Court of Appeals of Georgia
 A14A0168. CASTELLANOS v. TRAVELERS HOME & MARINE JE-103
     INSURANCE COMPANY.

      ELLINGTON, Presiding Judge.

      Luis Castellanos filed this action in the State Court of Gwinnett County against

Travelers Home & Marine Insurance Company to recover uninsured motorist (UM)

insurance benefits, statutory penalties for Travelers’ alleged bad faith in refusing to

pay benefits, and attorney fees. The trial court granted Travelers’ motion for summary

judgment and denied Castellanos’ motion, and he appeals both rulings. For the

reasons explained below, we reverse in part, as to the court’s grant of summary

judgment in favor of Travelers.

      Under OCGA § 9-11-56 (c)

      [s]ummary judgment is warranted if the pleadings, depositions, answers
      to interrogatories, and admissions on file, together with the affidavits,
      if any, show that there is no genuine issue as to any material fact and
      that the moving party is entitled to a judgment as a matter of law. We
      review the grant or denial of a motion for summary judgment de novo,
      and we view the evidence, and the reasonable inferences drawn
      therefrom, in a light most favorable to the nonmovant.


(Punctuation and footnotes omitted.) Assaf v. Cincinnati Ins. Co., _ Ga. App. _ (Case

No. A14A0145, decided June 5, 2014).

      So viewed, the record shows the following undisputed evidence. On September

22, 2009, Castellanos was injured in a wreck caused by the negligence of another

driver, Jose Santiago. At the time of the wreck, Castellanos was a named insured

under a UM policy Travelers issued to Lucrecia Arias, and he was driving a covered

automobile.

      Castellanos filed suit against Santiago for his injuries. Santiago’s liability

insurance carrier, United Automobile Insurance Company, provided a defense.

Castellanos also served the summons and complaint on Travelers as his UM carrier,

and Travelers’ counsel participated in the suit through the end of the trial. After a trial

which Santiago did not attend, a jury returned a verdict in favor of Castellanos, and,

on February 1, 2012, the trial court entered judgment against Santiago for $3,731 in

compensatory damages, $3,269 in punitive damages, and $135.50 in court costs.

                                            2
      Castellanos demanded payment of the judgment from United as Santiago’s

liability carrier. After some communication between counsel, United formally denied

any coverage, based on Santiago’s “lack of cooperation in the defense of

[Castellanos’] lawsuit and [his] failure to attend the resulting trial.” Castellanos then

demanded that Travelers pay the compensatory damages under Arias’ UM policy.

Travelers failed to pay UM benefits within 60 days of Castellanos’ demand.

      Castellanos filed the instant action against Travelers, alleging, inter alia, that

Travelers’ refusal to pay UM benefits was made in bad faith.1 Castellanos filed a

motion for summary judgment, and Travelers filed a cross-motion. Travelers argued

that there was no evidence that United’s denial of coverage on the basis that Santiago

failed to cooperate in the defense was a legal denial of coverage and, therefore, that

Santiago was not an uninsured motorist as defined in Arias’ UM policy. After a

hearing, the trial court granted Travelers’ motion for summary judgment and denied


      1
        OCGA § 33-7-11 (j) provides, in pertinent part,
      If the [UM] insurer shall refuse to pay any insured any loss covered by
      this Code section within 60 days after a demand has been made by the
      insured and a finding has been made that such refusal was made in bad
      faith, the insurer shall be liable to the insured in addition to any recovery
      under this Code section for not more than 25 percent of the recovery and
      all reasonable attorney’s fees for the prosecution of the case under this
      Code section.

                                           3
Castellanos’ motion, finding that there was “no evidence that United reasonably

requested Santiago’s cooperation, that Santiago willfully and intentionally failed to

cooperate, that his failure to cooperate was prejudicial to United, and that [his]

justification for failing to respond was insufficient.” Based on this determination, the

trial court concluded that Castellanos “failed to present evidence that there was a

‘legal denial’ of coverage by United.”

      1. Castellanos contends that the trial court’s ruling improperly shifted to him

the burden of coming forward with evidence that supported United’s denial of

coverage and that the trial court erred in granting Travelers’ motion for summary

judgment. We agree.2

      One essential element of Castellanos’ action against Travelers was that

Santiago was the owner or operator of an uninsured motor vehicle, as defined by

Arias’ UM policy and Georgia law. OCGA § 33-7-11 (j).3 Under the applicable

      2
         The precise issue presented by the record, the trial court’s ruling, and
Castellanos’ arguments on appeal appears to be a matter of first impression. We do
not find it necessary to overrule any controlling precedent. Accordingly, we reject the
dissenters’ contention, see dissent at *11, that this opinion necessitates appellate
review by all 12 judges of this Court.
      3
       Footnote 1, supra. See, generally, Frank E. Jenkins III, Ga. Auto. Ins. Law,
§§ 37:4 (demand for payment and bad faith), 37:5 (separate action for bad faith),
37:22 (proving uninsured status of offending motorist) (2013-2014 ed., updated

                                           4
contractual4 and statutory5 definitions of an uninsured motor vehicle, an insured

motor vehicle, such as the one Santiago was driving, could effectively become

uninsured, retroactively to the date of an accident, when a driver’s liability carrier

denies coverage, provided that such denial is, under applicable law, legally

sustainable.6 When, on the other hand, a driver’s liability carrier denies coverage and


October 2013).
      4
        Under the terms of Arias’ UM policy, Travelers agreed to “pay compensatory
damages which an ‘insured’ is legally entitled to recover from the owner or operator
of an ‘uninsured motor vehicle’ because of” an insured’s bodily injury or property
damage caused by an accident. In pertinent part, the policy defines an “uninsured
motor vehicle” as a motor vehicle “[t]o which a liability bond or policy applies at the
time of the accident but the bonding or insurance company . . . [l]egally denies
coverage[.]”
      5
      The UM statute provides in pertinent part that
    “[u]ninsured motor vehicle” means a motor vehicle . . . as to which there
    is . . . [b]odily injury liability insurance and property damage liability
    insurance in existence but the insurance company writing the insurance
    has legally denied coverage under its policy[.]
OCGA § 33-7-11 (b) (1) D) (iii).
      6
        Southern General Ins. Co. v. Thomas, 197 Ga. App. 196, 197 (397 SE2d 624)
(1990) (“Should the [tortfeasor’s] liability carrier later deny coverage, a cause of
action against the [innocent driver’s] uninsured motorist carrier may then arise,
because only at that time would there be an ‘uninsured’ motor vehicle as defined in
OCGA § 33-7-11 (b) (1) (D) (iii).”) (citation, punctuation, and emphasis omitted);
Hemphill v. Home Ins. Co., 121 Ga. App. 323, 335 (5) (174 SE2d 251) (1970)
(Liability coverage can be said to have been legally denied only if the denial is, under
applicable law, legally sustainable.); Frank E. Jenkins III, Ga. Auto. Ins. Law, § 32:4

                                           5
such denial is not legally sustainable, the injured driver’s UM coverage generally will

not apply, because the tortfeasor is not, technically, uninsured.7

      In this case, it is undisputed that Santiago’s liability policy required him to

cooperate with United’s defense against Castellanos’ tort action and authorized

United to withdraw coverage if Santiago failed to cooperate in the defense. Such

cooperation clauses are enforceable under Georgia law.8 Thus, “[u]nder applicable

law, the tortfeasor’s failure to cooperate can, under certain circumstances, form the

legally sustainable basis for his liability carrier’s denial of coverage.” (Citation and


(legally denied liability coverage) (2013-2014 ed., updated October 2013).
      7
          Hemphill v. Home Ins. Co., 121 Ga. App. at 335-336 (5).
      8
         Vaughan v. ACCC Ins. Co., 314 Ga. App. 741, 742 (2) (725 SE2d 855) (2012)
(“Once a plaintiff establishes his right to payment of a judgment against the insured
tortfeasor, the insurer may defend against the claim by showing that it properly
withdrew its coverage of the underlying incident because its insured failed to
cooperate in [his or] her defense.”); H. Y. Akers & Sons v. St. Louis Fire & Marine
Ins. Co., 120 Ga. App. 800, 803 (1) (172 SE2d 355) (1969) (“The co-operation clause
is a material condition of a liability policy and a breach of it in any material respect
relieves the insurer of liability.”). See also OCGA § 33-7-15 (a) (Every motor vehicle
liability insurance policy shall require “the insured to send his insurer, as soon as
practicable after the receipt thereof, a copy of every summons or other process
relating to the coverage under the policy and to cooperate otherwise with the insurer
in connection with the defense of any action or threatened action covered under the
policy.”); see, generally, Frank E. Jenkins III, Ga. Auto. Ins. Law, §§ 23:1 (necessity
of cooperation of insured), 23:4 (failure of insured to appear at trial) (2013-2014 ed.,
updated October 2013).

                                           6
emphasis omitted.) Southern General Ins. Co. v. Thomas, 197 Ga. App. 196, 198 (397

SE2d 624) (1990). In addition, it is undisputed that Santiago failed to appear for trial

in Castellanos’ tort action and that, after judgment, United denied coverage on the

basis that Santiago breached that contractual duty to cooperate in the defense, in part

by failing to attend the trial.

           Travelers contends that it was nonetheless justified in failing to pay UM

benefits, and the trial court agreed, finding that Castellanos failed to come forward

with evidence that United’s denial of coverage was a legal denial. In casting upon

Castellanos the burden of coming forward with evidence that United reasonably

requested Santiago’s cooperation, that Santiago willfully and unjustifiably failed to

cooperate, and that his failure to cooperate was prejudicial to United, the trial court

required Castellanos to discharge a burden that United would have borne as a

defendant in a suit under OCGA § 33-4-69 for bad faith penalties for denying

       9

       In the event of a loss which is covered by a policy of insurance and the
       refusal of the insurer to pay the same within 60 days after a demand has
       been made by the holder of the policy and a finding has been made that
       such refusal was in bad faith, the insurer shall be liable to pay such
       holder, in addition to the loss, not more than 50 percent of the liability
       of the insurer for the loss or $5,000.00, whichever is greater, and all
       reasonable attorney’s fees for the prosecution of the action against the
       insurer.

                                           7
coverage. See Vaughan v. ACCC Ins. Co., 314 Ga. App. 741, 742-743 (2) (725 SE2d

855) (2012).10 This was improper. Given the evidence that United denied coverage

under Santiago’s liability policy based on his alleged failure to cooperate with the


OCGA § 33-4-6 (a).
      10

       Once a plaintiff establishes [the] right to payment of a judgment against
       the insured tortfeasor, the [tortfeasor’s liability carrier] may defend
       against the [plaintiff’s] claim [for bad faith refusal to pay the tort
       judgment] by showing that it properly withdrew its coverage of the
       underlying incident because its insured failed to cooperate in [the]
       defense. [To justify a withdrawal of coverage based on the insured’s
       failure to cooperate,] [t]he insurer must show: (a) that it reasonably
       requested its insured’s cooperation in defending against the plaintiff’s
       claim, (b) that its insured wilfully and intentionally failed to cooperate,
       and (c) that the insured’s failure to cooperate prejudiced the insurer’s
       defense of the claim. Once the [tortfeasor’s liability carrier] presents
       evidence that it was entitled to withdraw coverage, the burden shifts to
       the plaintiff to establish that the insured [tortfeasor]’s failure to
       cooperate was justified.
 (Citations omitted.) Vaughan v. ACCC Ins. Co., 314 Ga. App. at 742-743 (2). See
also H. Y. Akers & Sons v. St. Louis Fire & Marine Ins. Co., 120 Ga. App. at 802 (1)
(To justify withdrawal of coverage, “[t]he nonco-operation must, of course, have been
material – not merely technical or inconsequential in nature.”). Once the insurer
presents evidence that it was entitled to withdraw coverage, the burden shifts to the
plaintiff to establish that the insured’s failure to cooperate was justified in order to
support the allegation that the insurer acted in bad faith in withdrawing coverage.
Vaughan v. ACCC Ins. Co., 314 Ga. App. at 743 (2). See also OCGA § 9-11-9 (c) (“In
pleading the performance or occurrence of conditions precedent, it is sufficient to
aver generally that all conditions precedent have been performed or have occurred.
A denial of performance or occurrence shall be made specifically and with
particularity.”).

                                           8
defense, a legal basis that falls squarely within the terms of the policy and is

authorized under Georgia law,11 this is not a case where the court is asked to presume

Santiago’s status as an uninsured motorist.12 See Southern General Ins. Co. v.

Thomas, 197 Ga. App. at 197.13 Although evidence may exist that United’s denial of


      11

       Every person familiar with the trial of cases by jury knows that the case
       of an individual defendant is seriously, if not hopelessly, prejudiced by
       his absence from the trial. His failure to be present in defense of the
       claim can have an intangible effect upon the jury both as to the question
       of liability and the amount of the verdict, the net effect of which is
       difficult to measure. Unexpected developments in the plaintiff’s
       evidence might be offset by an explanation on the part of the insured.
(Citations and punctuation omitted.) H. Y. Akers & Sons v. St. Louis Fire & Marine
Ins. Co., 120 Ga. App. at 803 (1).
      12
         Cf. Anthony v. Larios, 256 Ga. App. 248, 249 (568 SE2d 135) (2002) (Where
an injured driver sued another driver and alleged that the other driver was uninsured,
and the alleged tortfeasor defaulted and thereby judicially admitted that he was
uninsured, such admission did not bind the injured driver’s UM carrier. Because the
injured driver failed to present any evidence at trial that the alleged tortfeasor was
uninsured, the UM carrier was entitled to judgment as a matter of law.); Hartford
Accident & Indem. Co. v. Studebaker, 139 Ga. App. 386, 387 (228 SE2d 322) (1976)
(Where an injured driver failed to present any evidence at trial to support his
allegation that the alleged tortfeasor was uninsured, the UM carrier was entitled to
judgment as a matter of law.).
      13
        In response to the dissent at *9-10, we clarify that Castellanos made out a
prima facie claim for UM benefits by showing that he is legally entitled to recover
from Santiago for injuries he sustained in the accident; that Travelers provided him
UM coverage, under Arias’ policy, which defined an uninsured motor vehicle as one
to which, although a liability policy applied at the time of the accident, the liability

                                           9
benefits (on the basis that Santiago failed to cooperate with the defense) was not

legally sustainable (for example, if United never requested his cooperation), once

Castellanos met his threshold burden of showing that he was entitled to UM benefits,

Travelers had the burden of presenting such evidence to justify its denial of coverage,

as it would for any other affirmative defense.14 See Anthony v. Larios, 256 Ga. App.


carrier legally denied coverage; that Santiago’s liability policy authorized United to
withdraw coverage on the basis of a lack of cooperation and such provision is
consistent with Georgia law; and that United in fact denied coverage on that basis. It
is not our position that proof of Santiago’s failure to attend the trial is alone sufficient
to show a lack of cooperation. See id.
       14
         The dissenters contend that the burden of proving a legally sustainable denial
of coverage “is not unduly onerous.” Dissent at *6. But the burden of proving the
opposite – Travelers’ burden – is no more onerous and can be satisfied by the same
mechanisms the dissent suggests. Travelers could name United as a third-party
defendant and seek a declaration as to which policy provides coverage for
Castellanos’ judgment, “thus placing the burden on United to prove a legal denial of
coverage.” Id. Alternatively, Travelers could depose United’s counsel to determine
what efforts counsel made to secure Santiago’s cooperation. Id. In discerning the
parties’ relative burdens of coming forward, we must not lose sight of the purpose of
UM insurance motorist legislation, which is “to require some provision for first-party
insurance coverage to facilitate indemnification for injuries to a person who is legally
entitled to recover damages from an uninsured motorist, and thereby to protect
innocent victims from the negligence of irresponsible drivers.” (Citation and
punctuation omitted.) Hinton v. Interstate Guar. Ins. Co., 267 Ga. 516, 517 (480
SE2d 842) (1997). See also Smith v. Commercial Union Assur. Co., 246 Ga. 50, 51
(268 SE2d 632) (1980) (accord). “Uninsured motorist statutes are remedial in nature
and must be broadly construed to accomplish the legislative purpose.” (Citation
omitted.) Hinton v. Interstate Guar. Ins. Co., 267 Ga. at 518. Castellanos is the
innocent driver here. Either Santiago’s liability policy with United should pay, or, if

                                            10
248 (568 SE2d 135) (2002) (noting that, where the plaintiff filed suit against another

driver, alleging that he was an uninsured motorist, the plaintiff’s UM carrier answered

in its own name, “raising the affirmative defense that [the tortfeasor] may not be

uninsured”) (emphasis supplied).15 We conclude that the trial court improperly shifted

to Castellanos the burden of coming forward with evidence to rebut Travelers’

affirmative defense that Travelers failed to support. Because the undisputed evidence

does not establish that Santiago’s absence from the trial was involuntary or excused

or that his failure to cooperate with United did not prejudice the defense, the trial



that policy provides no coverage and therefore Santiago is an uninsured motorist,
Arias’ UM policy with Travelers should pay. The trial court’s ruling, which the
dissenters would affirm, provides a windfall for one of the insurers, at the expense of
the innocent driver.
      15
         Willis v. Kemp, 130 Ga. App. 758, 759 (2) (204 SE2d 486) (1974) (When the
defendant admits the essential facts of a plaintiff’s claim, and sets up other facts in
justification or avoidance, such constitutes an affirmative defense for which the
defendant has the burden of proof.); Williamson-Inman & Co. v. Thompson, 53 Ga.
App. 821, (7) (a) (187 SE 194) (1936) (If a defendant’s plea or answer admits
essential facts of a petition, which show a right of recovery, but sets up other facts in
justification or avoidance, or other special matters not merely elaborating or
explaining a general denial, there is an affirmative defense, and the burden of proving
an affirmative defense by a preponderance of the evidence rests on the defendant.);
Joy T. Carmichael, 4 Ga. Proc. Evidence, § 1:18 (updated March 2014) (A defendant
ordinarily has the burden of proof of establishing its affirmative defenses and must
come forward with proof sufficient to establish each element of an affirmative
defense.).

                                           11
court erred in finding that Travelers is entitled to judgment as a matter of law.16 The

trial court’s order is reversed, in part, to the extent it entered summary judgment in

Travelers’ favor.

      2. Castellanos contends that the trial court erred in denying his motion for

summary judgment. Because the question of bad faith is for the jury,17 however, this

argument lacks merit.

      Judgment affirmed in part and reversed in part. Phipps, C. J., Barnes, P.J.,

and McFadden, J., concur. Andrews, P. J., Ray and McMillian, JJ., dissent.




      16
         In Southern General Ins. Co. v. Thomas, the trial court correctly denied a UM
carrier’s motion for summary judgment where the liability carrier denied coverage on
the basis that the tortfeasor violated the liability policy’s cooperation cause by failing
to appear at trial and the UM carrier did not contend that there was a genuine issue
of material fact as to whether the particular circumstances of the tortfeasor’s failure
to cooperate would form a legally sustainable basis for the liability carrier’s denial
of coverage.197 Ga. App. at 198.
      17
         Jimenez v. Chicago Title Ins. Co., 310 Ga. App. 9, 12 (2) (712 SE2d 531)
(2011); Certain Underwriters &c. v. Rucker Constr., Inc., 285 Ga. App. 844, 850 (3)
(648 SE2d 170) (2007); First Financial Ins. Co. v. American Sandblasting Co., 223
Ga. App. 232, 233 (2) (477 SE2d 390) (1996); St. Paul Fire & Marine Ins. Co. v.
Snitzer, 183 Ga. App. 395, 397 (2) (358 SE2d 925) (1987).

                                           12
 A14A0168. CASTELLANOS v. TRAVELERS HOME AND

          MARINE INSURANCE COMPANY.



         MCMILLIAN, Judge, dissenting.

         I respectfully dissent to the majority’s opinion in this case because I believe it

ignores long-standing principles of Georgia law and the language of the insurance

policy at issue to improperly shift the burden to Travelers to prove Castellanos’s

claim.

         The primary issue raised on appeal is the legal question of whether the insured

seeking UM coverage or the UM carrier bears the burden of proving that UM

coverage applies in order to survive summary judgment. It is well settled, however,

that Castellanos, as the insured, had “the . . . burden to prove (1) the existence of a

policy of liability insurance containing uninsured motorist protection, and (2) that

[Santiago] was an uninsured motorist at the time of the [wreck]. The court could not
presume that [Santiago] was an uninsured motorist.” (Citations and punctuation

omitted.) Williams v. Safeway Ins. Co., 223 Ga. App. 93, 94 (476 SE2d 850) (1996).1

See also Anthony v. Larios, 256 Ga. App. 248, 249 (568 SE2d 135) (2002); Hartford

Accident & Indem. Co. v. Studebaker, 139 Ga. App. 386, 388 (1) (228 SE2d 322)

(1976). See also Frank E. Jenkins et al., Georgia Automobile Insurance Law § 37.22

(2013-2014 ed.).

      This requirement is simply a reiteration of the principle that an insured

claiming an insurance benefit “has the burden of proving that a claim falls within the

coverage of the policy.” Ga. Farm Bureau Mut. Ins. Co. v. Hall County, 262 Ga. App.

810, 812 (1) (586 SE2d 715) (2003). Thus, “[t]o establish a prima facie case on a

claim under a policy of insurance the insured must show the occurrence was within

the risk insured against.” Allstate Ins. Co. v. Grayes, 216 Ga. App. 419, 420 (1) (454

SE2d 616) (1995). See BayRock Mtg. Corp. v. Chicago Title Ins. Co., 286 Ga. App.

18, 19 (648 SE2d 433) (2007) (first element of a claim for an insurer’s bad faith is

proof that the claim is covered under the policy); OCGA § 33-4-6. Here, no dispute


      1
         Although an insured must also prove the uninsured motorist’s liability for the
insured’s damages, Santiago’s liability in this case was determined in the underlying
suit filed by Castellanos. See Morton v. Horace Mann Ins. Co., 282 Ga. App. 734,
738 (2) (b) (639 SE2d 352) (2006) (it is well settled that injured party must first
establish that driver of uninsured vehicle was legally liable); OCGA § 37-7-11.

                                          2
exists that the Travelers’ policy (the “Policy”) provided UM coverage, but Travelers

disputes that Castellanos carried his burden of establishing that Santiago was an

uninsured motorist under its terms.

       The applicable policy provisions state that Travelers agreed to “pay

compensatory damages which an ‘insured’ is legally entitled to recover from the

owner or operator of an ‘uninsured motor vehicle’” because of an insured’s bodily

injury or property damage caused by an accident. The Policy defines an “uninsured

motor vehicle” in pertinent part as “a land motor vehicle or trailer of any type . . . [t]o

which a liability bond or policy applies at the time of the accident but the bonding or

insurance company . . . [l]egally denies coverage.” 2 (Emphasis supplied.) Thus, in

order to present a prima facie case that Santiago’s vehicle was an uninsured motor

vehicle under the policy, Castellanos bears the burden of demonstrating not only that

United denied coverage, but that it legally denied coverage. And this Court has held

that “coverage [cannot] be said to have been legally denied unless the denial is, under

applicable law, legally sustainable.” (Emphasis omitted.) Hemphill v. Home Ins. Co.,

121 Ga. App. 323, 335 (5) (174 SE2d 251) (1970). Compare Moore v. State Farm



       2
        The Policy’s language mirrors the statutory definition of “uninsured motor
vehicle” under OCGA § 33-7-11 (b) (1) (D) (iii).

                                            3
Mut. Auto. Ins. Co., 196 Ga. App. 755, 757 (397 SE2d 127) (1990) (proof of legal

denial of coverage not required where policy did not require a legal denial of

coverage, but instead required only “‘that the insurance company den(y) coverage,’”

to qualify for UM coverage).

      The record reflects that United cited Santiago’s lack of cooperation as the basis

for its denial of coverage,3 and it is well settled that “[a] co-operation clause is a

material condition of a liability policy and a breach of it in any material respect

relieves the insurer of liability. The voluntary and unexcused failure of an insured to

attend a trial, after notice or request to do so, upon a claim covered by his policy of

insurance is such a breach of the clause.” H. Y. Ayers & Sons, Inc. v. St. Louis Fire

& Marine Ins. Co., 120 Ga. App. 800, 803 (1) (172 SE2d 355) (1969). But to

demonstrate a legal denial of coverage on the basis of a lack of cooperation in a case

between a claimant and the tortfeasor’s insurer, the insurer must make a prima facie



      3
         In response to Castellanos’s demand for payment, United’s counsel originally
told him that United was prepared to pay the compensatory damages portion of the
judgment in exchange for a satisfaction of judgment but would not pay the remainder
of the award, asserting that Arias’s policy did not cover punitive damages.
Castellanos’s counsel countered that Castellanos would provide only a partial
satisfaction of judgment in response to the insurer’s payment of only part of the
judgment. In response to this counteroffer, United wrote Castellanos to inform him
that it was denying coverage based on Santiago’s lack of cooperation.

                                          4
showing “(a) that it reasonably requested its insured’s cooperation in defending

against the plaintiff’s claim, (b) that its insured wilfully and intentionally failed to

cooperate, and (c) that the insured’s failure to cooperate prejudiced the insurer’s

defense of the claim.” (Citations omitted.) Vaughan v. ACCC Ins. Co., 314 Ga. App.

741, 742-743 (2) (725 SE2d 855) (2012). See also Liberty Mut. Ins. Co. v. Coburn,

129 Ga. App. 520, 525 (3) (200 SE2d 146) (1973) (physical precedent only); Cotton

States Mut. Ins. Co. v. Proudfoot, 123 Ga. App. 397, 397 (3) (181 SE2d 305) (1971);

H. Y. Ayers, 120 Ga. App. at 804-805 (3); OCGA § 33-7-15 (b). An insurer does not

meet this burden merely by demonstrating that the insured failed to appear at trial.

Coburn, 129 Ga. App. at 525 (3); Proudfoot, 123 Ga. App. at 397 (3). Because

Castellanos chose not to add United as a party defendant or to obtain a prior

determination that a legal denial of coverage occurred, as between Castellanos and

Travelers, he necessarily bears the burden of proving that United legally denied

coverage to Santiago as part of his prima facie claim for UM coverage. See Anthony,

256 Ga. App. at 249; Williams, 223 Ga. App. at 94; Hartford, 139 Ga. App. at 388.

      Travelers sought summary judgment on the ground that Castellanos failed to

present evidence to support any of the three elements required to prove the lack of

cooperation required for establishing a legal denial of coverage. It is well settled that


                                           5
      a defendant who will not bear the burden of proof at trial need not
      affirmatively disprove the nonmoving party’s case, but may point out by
      reference to the evidence in the record that there is an absence of
      evidence to support any essential element of the nonmoving party’s
      case. Where a defendant moving for summary judgment discharges this
      burden, the nonmoving party cannot rest on its pleadings, but rather
      must point to specific evidence giving rise to a triable issue.


(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 623 (1) (a)

(697 SE2d 779) (2010).

      Castellanos initially argued below that he carried his burden of proof merely

by showing that Santiago failed to attend the trial, which he asserted showed per se

prejudice to United. But following the hearing on the motion for summary judgment,

Castellanos’s attorney submitted a post-hearing brief and his own affidavit making

additional assertions, apparently in support of the first two required elements for a

lack of cooperation.4 Castellanos’s counsel asserted that (1) Travelers’s counsel never

disputed United’s counsel’s claim that Santiago’s January 22, 2010 response to

      4
         In the affidavit, the attorney averred that “[t]he facts alleged by me in
Plaintiff’s Reply Brief to Defendant’s Post-Hearing Brief as to the attached pleadings
as Exhibits and my conversations with United’s . . . [attorney] in the underlying case
are true and based upon my personal knowledge.” Although the affidavit was a clear
attempt to affirm hearsay as fact, Travelers raised no objection below, and thus the
averments containing hearsay must be considered as evidence. See OCGA § 24-8-
802.

                                          6
interrogatories were incomplete and not verified due to Santiago’s lack of

cooperation, thus giving Travelers notice that Santiago was not cooperating two years

before trial; (2) Santiago’s counsel stated that he did not supplement the interrogatory

responses because he was unable to locate an address or telephone number for

Santiago after he was served with the original complaint; (3) a November 7, 2010

affidavit from the son of another defendant was filed in the underlying action stating

that Santiago did not reside at the address noted on the sheriff’s return of service for

him; and (4) the same address was listed on the insured vehicle’s registration and the

driver’s license Santiago showed to police.

      But neither these assertions nor any other evidence of record provide proof of

any efforts made by United to locate Santiago, to obtain his cooperation, or to secure

his attendance at trial. Accordingly, Castellanos failed to carry his burden of

establishing that an issue of fact exists as to whether United “exercised good faith and

diligence in an effort to procure the attendance of the insured at the trial,” H. Y. Akers,

120 Ga. App. at 804 (3), or to otherwise secure his cooperation. See Liberty Mutual,

129 Ga. App. at 525 (3) (where insured has no knowledge of suit and insurer with full

knowledge of suit fails to make any effort to contact insured, insurer cannot defend

claims based on lack of cooperation).


                                            7
      The record also contains no evidence demonstrating, or raising an inference of,

an intentional or wilful refusal by Santiago to comply with any request by United for

cooperation.5 Without such evidence, the trial court could not presume Santiago’s

actions in that regard reflect a wilful and intentional failure to cooperate. See Cowart,

287 Ga. at 633 (3) (c) (motion for summary judgment cannot be denied “based on

speculation or conjecture”); Proudfoot, 123 Ga. App. at 397 (3) (where no evidence

was presented as to why insured did not appear at trial, even in light of evidence of

conversations in which insured told her insurer that she planned to be at trial, insured

failed to show a wilful or intentional refusal to cooperate); Liberty Mutual, 129 Ga.

App. at 525 (3).

      Because Castellanos failed to present evidence creating a material issue of fact

as to the first two requirements for showing a legal denial of coverage by United,6 his


      5
        To the contrary, Castellanos’s counsel represented that United’s counsel told
the jury in the prior litigation that Santiago had no idea that the trial was taking place.
This led to a sustained objection on the ground that United was addressing facts not
in evidence in its argument. As the objection indicates, Castellanos’s counsel was
well aware that such representations are not evidence.
      6
        I note that this burden is not unduly onerous. Castellanos could have named
both United and Travelers as party defendants and sought a declaration as to which
insurer had liability for his claims, thus placing the burden on United to prove a legal
denial of coverage. At the very least he could have deposed United’s counsel to
determine what efforts he made to secure Santiago’s cooperation. But Castellanos

                                            8
claim to recover UM benefits against Travelers fails, and I would not address the final

requirement of showing prejudice. See Young v. Oak Leaf Builders, Inc., 277 Ga.

App. 274, 278 (3) (626 SE2d 240) (2006) (when evidence as to any one essential

element of claim is lacking, the claim fails and summary judgment is proper).

Accordingly, I would find that the trial court properly granted Travelers’s motion for

summary judgment as to Castellanos’s claims.

      The majority’s analysis erroneously shifts the burden of proving Castellanos’s

prima facie case to Travelers. The majority asserts that Castellanos made out a prima

facie claim merely by showing that Travelers provided him UM coverage, that he is

legally entitled to recover from Santiago for the injuries he sustained in the accident,

that United denied coverage on the basis of Santiago’s lack of cooperation, and that

proof of Santiago’s failure to attend the trial is alone sufficient to show a lack of

cooperation. But as discussed above, proof that an insured failed to attend trial is

insufficient to establish the lack of cooperation necessary to establish a legal denial

of coverage. Rather, it requires proof, at the very least, that the insurer made good

faith efforts to secure the insured’s attendance and/or cooperation. Such evidence is

completely lacking in this case. Although the majority argues that this is not a case


took no such action.

                                           9
in which this Court is asked to presume that Santiago is an uninsured motorist, the

majority’s analysis would actually require that the Court make a series of

presumptions based solely on Santiago’s failure to attend the trial – that United made

good faith efforts to secure Santiago’s cooperation and/or attendance at trial, that his

nonattendance and lack of cooperation was wilful or intentional, and thus that United

legally denied him coverage – in order to find that Santiago was an insured motorist

under the terms of the Policy.

      Significantly, the majority fails to cite any authority to support its argument

that the evidence of record is sufficient to make out a prima facie case for a legal

denial of coverage. The case of Southern General Ins. Co. v. Thomas, 197 Ga. App.

196, 197 (397 SE2d 624) (1990), upon which the majority relies is readily

distinguishable. In that case, before suing his own UM insurer, the insured first

obtained a judgment against the tortfeasor and then pursued an “unsuccessful”

garnishment action against the tortfeasor’s insurer, which had denied coverage based

on the tortfeasor’s lack of cooperation. Id. at 196. It is entirely possible, if not

presumable, that the garnishment action was unsuccessful because the tortfeasor’s

insurer established that it legally denied coverage. But in any event, the UM carrier

did not dispute that a legal denial of coverage had occurred. Instead, it argued that


                                          10
even given a legal denial of coverage, the insured was not entitled to UM coverage

on other grounds. Id. at 198. Accordingly, Thomas does not support the majority’s

analysis.

      The majority also fails to cite any authority to support shifting the burden to an

UM insurer to make out its insured’s prima facie case for coverage, because no such

authority exists. Indeed, to make the radical shift in the law the majority is suggesting

would require the overruling of longstanding Georgia case law and would necessitate

appellate review by all 12 judges of this Court. OCGA § 15-3-1 (d). Contrary to the

majority’s analysis, an insurer, like Travelers, who merely points to an insured’s lack

of evidence to support his claim for coverage is not asserting an affirmative defense.

Rather, it is simply arguing for summary judgment under the applicable standard for

a party who will not bear the burden of proof at trial by pointing to its opponent’s

failure to make out his prima facie case. Although the majority contends that

Travelers’s argument on summary judgment equates with an affirmative defense

because once this Court shifts the burden of proof to the insurer to make out its

insured’s prima facie case, the insurance company will have to set up additional facts

in justification of the other insurer’s denial of coverage. Accordingly, the majority

justifies shifting the burden to Travelers by arguing that it is asserting an affirmative


                                           11
defense, but it only becomes an affirmative defense because the majority has shifted

the burden to the insurer. This circuitous reasoning is not supported by Georgia law.

      Accordingly, I would affirm the trial court’s order granting summary judgment

to Travelers.

      I am authorized to state that Presiding Judge Andrews and Judge Ray join in

this dissent.




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