                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 06-12380                ELEVENTH CIRCUIT
                                                             OCT 18, 2006
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                  D.C. Docket No. 03-01928-CV-WBH-1

WELLS FARGO HOME MORTGAGE, INC.,

                                                     Plaintiff-Appellant,

                                  versus

ALLSTATE INSURANCE COMPANY, INC.,

                                                     Defendant-Cross Claimant-
                                                     Appellee,

BANK OF AMERICA, N.A.,

                                                     Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                            (October 18, 2006)

Before ANDERSON, BIRCH and COX, Circuit Judges.

PER CURIAM:
      Wells Fargo Home Mortgage, Inc. (“Wells Fargo”) appeals the district court’s

grant of summary judgment to Allstate Insurance Co. (“Allstate”) in this action to

recover misdirected insurance payments. Allstate generated a check to cover a fire

loss on the insured home of Virgil R. Rogers; the home was mortgaged to Wells

Fargo. Allstate should have written the check to Wells Fargo, Virgil R. Rogers, and

Adjusters International (Rogers’s public adjuster). But, the language of the check

omitted the word “and,” so Rogers was able to cash the check without Wells Fargo’s

knowledge.

      On November 6, 2001, after Rogers cashed the check and kept the money,

Wells Fargo discovered that the insurance proceeds had been misdirected. Wells

Fargo then attempted to obtain reimbursement from Allstate. Allstate denied Wells

Fargo’s claim on June 28, 2002. Wells Fargo sued Allstate on June 13, 2003.

      Allstate moved for summary judgment. The district court granted Allstate’s

motion based on language in the insurance policy requiring that any suit by an insured

against Allstate be brought within twelve months of the “inception of loss.”

      Wells Fargo does not dispute the existence or validity of the policy’s

limitations provision. Instead, Wells Fargo argues that the limitations provision

should not be enforced because Allstate waived the limitations period in the contract.




                                          2
      This is a misdirection of funds case. There was a misdirection of the insurance

proceeds when Allstate issued a check that was payable in full to any of the three

insureds instead of requiring the endorsements of all three. Under Georgia law, in a

misdirection of funds case, the contractual limitations period begins to run when the

insured discovers the misdirection of the funds. E. Ten. Mort. Co. v. U.S. Fidel. &

Guar. Co., 491 S.E.2d 333, 336 (Ga. 1997). It is undisputed that Wells Fargo

discovered that the funds had been misdirected on November 6, 2001. Wells Fargo

did not sue Allstate until June of 2003. Thus, Wells Fargo’s lawsuit must be

dismissed pursuant to the one-year contractual limitations period unless Allstate

waived the enforcement of that contractual term. Wells Fargo never explicitly waived

enforcement of the limitations period. Therefore, the question is whether Allstate’s

conduct impliedly waived the contract’s limitations period.

      “A waiver is the voluntary relinquishment of some known right, benefit, or

advantage which the party otherwise would have enjoyed.” Plumer v. Continental

Cas. Co., 77 S.E. 917, 920 (Ga. App. 1913) (citation omitted); see also Glass v.

United of Omaha Life Ins. Co., 33 F.3d 1341, 1347 (11th Cir. 1994). Ordinarily, the

question of waiver is for the jury. Employees Assur. Soc. v. Bush, 123 S.E.2d 908,

912 (Ga. App. 1962). Nevertheless, waiver may become a question of law in Georgia




                                         3
if “the facts and circumstances essential to the waiver issue are clearly established.”

Mauldin v. Weinstock, 411 S.E.2d 370, 374 (Ga. App. 1991).

      Wells Fargo argues that Allstate relinquished its right to rely on the limitations

period in the contract in two ways. First, Wells Fargo argues that Allstate waived its

right to enforce the limitations period by continuing to work in cooperation with

Wells Fargo beyond the limitations period’s expiration. This does not constitute

waiver under Georgia law, which categorically states that investigations and

settlement negotiations on the part of the insurer shall not constitute a waiver of any

contractual limitations provision. Ga. Code § 33-24-40.

      Second, Wells Fargo argues that Allstate waived the limitations period by

failing to provide Wells Fargo a complete copy of the insurance policy until well after

the expiration of the limitations period, despite Wells Fargo’s timely requests for the

policy. The district court dismissed this argument because Georgia law charges an

insured with knowledge of the terms of the insurance policy. (R.3-57 at 15 n.5.)

(citing S.E. Sec. Ins. Co. v. Empire Banking, 498 S.E.2d 282, 284 (Ga. App. 1998)).

While the district court correctly stated the general rule of Georgia law, the court did

not state the corollary to that rule – an insured without a copy of the policy must make

an effort to ascertain the policy’s terms. Empire Banking, 498 S.E.2d at 284

(“Insured persons under an insurance policy are presumed to know its conditions if

                                           4
they intend to rely upon its benefits, or else they must find out those conditions.”)

(internal quotation omitted) (emphasis added). But, this assumes that the insured’s

efforts to “find out those conditions” will not be frustrated by the actions of the

insurer to deny the insured access to the policy itself. If the insurer acts to deny the

insured access to the policy, and the policy itself is the source of the limitation period

on which the insurer relies, the consequence of the insurer’s actions should be waiver

of the limitation period. See Canales v. Wilson Southland Ins. Agency, 583 S.E.2d

203, 204 (Ga. App. 2003) (recognizing exception to general rule that insured is

charged with knowledge of the policy conditions if “the evidence reflects a special

relationship of trust or other unusual circumstances which would have prevented or

excused [the insured] of his duty to exercise ordinary diligence.”) (citation omitted);

see also id. at 206 n.20 (citing Georgia cases recognizing that fraud on the part of the

insurer excuses the insured’s duty to read the policy if the fraud prevents the insured

from reading the policy).

      In this case, there is a dispute of fact as to whether, in response to Wells

Fargo’s timely request, Allstate supplied Wells Fargo with a copy of the insurance

policy or stalled production of the policy until after the one year limitations period

had expired. Crediting the facts as alleged by Wells Fargo (as we must when

reviewing summary judgment), we cannot say that, as a matter of law, Wells Fargo’s

                                            5
requests for a policy did not fulfill its duty to exercise ordinary diligence. Neither can

we hold that, as a matter of law, Allstate’s actions in response to Wells Fargo’s

requests for a policy do not constitute “unusual circumstances which would have

prevented or excused [Wells Fargo’s] duty to exercise ordinary diligence.” See

Canales, supra. These are genuine issues of material fact for the jury. Therefore, the

case should not have been disposed of on summary judgment. Accordingly, we

reverse the grant of summary judgment and remand this case for further proceedings

consistent with this opinion.1

       REVERSED AND REMANDED.




       1
         The district court was correct in ruling that Wells Fargo’s other contention, that Allstate is
liable for the actions of Rogers because it impliedly made him its agent by issuing the check to him,
is without merit. This argument need not be addressed on remand.

                                                  6
