                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                  FILED
                                                                 U.S. COURT OF APPEALS
                                       No. 10-10734                ELEVENTH CIRCUIT
                                   Non-Argument Calendar              AUGUST 12, 2010
                                 ________________________               JOHN LEY
                                                                         CLERK
                             D.C. Docket No. 1:08-cv-01576-TCB

GERALDINE RUTLAND,

lllllllllllllllllllll                            Plaintiff-Appellant-Counter-Defendant,


                                            versus



STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

llllllllllllllllllll                             Defendant-Appellee-Counter-Claimant.

                                ________________________

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

                                      (August 12, 2010)

Before HULL, WILSON and MARTIN, Circuit Judges.

PER CURIAM:
      Geraldine Rutland appeals the district court’s grant of summary judgment to

State Farm Mutual Automobile Insurance Company on her claim that State Farm

breached their insurance contract. Essentially, Rutland is arguing that State Farm

is required to provide coverage for a crash that occurred during a lapse in

Rutland’s insurance coverage due to nonpayment of premiums. We find that there

is no genuine issue of material fact present in Rutland’s claim and affirm the

summary judgment order of the district court.

                               I. BACKGROUND

      State Farm provided automobile insurance coverage to Rutland and in June

2003 the insurance policy was active. Rutland had previously agreed to allow

State Farm to directly debit Rutland’s checking account each month for payment

of the insurance premiums. On June 27, 2003, State Farm attempted to debit

$286.51 from Rutland’s checking account for payment of the premiums on all five

of Rutland’s insurance policies. On June 30, 2003, Rutland’s bank informed State

Farm that they would not honor the debit because Rutland’s account was

overdrawn.

      State Farm sent a certified letter to Rutland on July 7, 2003 informing her

that the premium on her insurance policy had not been paid. The letter went on to

inform Rutland that if the premium was not paid by July 20, 2003 her insurance

                                         2
policy would be canceled. State Farm canceled Rutland’s insurance coverage on

July 20, 2003 when the premium had not been paid.

      On July 31, 2003, Rutland was driving intoxicated and crashed into another

car, seriously injuring an adult and two minor children. Rutland reported the crash

to her State Farm agent, John Davis, on August 1, 2003. Shirley Davis, an

employee in the agent’s office, informed Rutland that her premiums had not been

paid and therefore her insurance coverage had been terminated on July 20, 2003.

According to Rutland’s version of events, Ms. Davis instructed Rutland that if she

paid the past due amount, $286.51, her insurance coverage would be reinstated

and that State Farm would provide retroactive coverage for the crash. Ms. Davis

has denied making any representation to Rutland that she would receive

retroactive coverage and John Davis has stated that the employees in his office

would never make an offer of retroactive coverage.

      Rutland mailed a check for $286.51 to State Farm on August 4, 2003 and

her insurance coverage was reinstated on August 5, 2003. Rutland claims that she

spoke with Ms. Davis once again after paying the past due amount and Ms. Davis

assured her that she would receive retroactive coverage for the crash. State Farm

then sent a letter to Rutland on August 28, 2003 to inform Rutland that they would

not provide insurance coverage for her July 31 crash because of the cancellation

                                         3
due to non-payment. The letter asked Rutland to provide State Farm with any

further information that they should consider in regard to the denial of insurance

coverage. State Farm then credited Rutland’s account on her September 2003

billing statement for the late payment Rutland tendered for the period that her

coverage was cancelled.

       The victims of Rutland’s crash filed three civil actions against her on May

25, 2005. State Farm did not defend Rutland and Rutland was unable to pay an

attorney. The state court entered a default judgment against Rutland in the amount

of $15,750,000. Rutland filed suit against State Farm on March 26, 2008 alleging

State Farm acted in bad faith by failing to defend her in the civil action arising

from her crash. State Farm moved for summary judgment and to exclude the

affidavit of Jeniffer Ebert.1 Rutland moved for partial summary judgment and to

exclude the testimony of Frank Edward Jenkins III.2 The district court granted

State Farm’s motion to exclude and motion for summary judgment. The district

court also denied Rutland’s motion for summary judgment and motion to exclude



       1
        Rutland attempted to introduce the affidavit of Ms. Ebert as proof that State Farm in that
past had provided retroactive coverage for events that occurred while the insured’s policy was
cancelled for non-payment of premiums.
       2
        State Farm offered the testimony of Mr. Jenkins in regards to the issue of whether
Rutland took the proper steps to notify State Farm of the May 25, 2005 lawsuits filed by the
victims of Rutland’s crash.

                                                4
as moot.

                         II. STANDARD OF REVIEW

      We review a district court’s grant of summary judgment de novo, viewing

the record and drawing all inferences in favor of the non-moving party. Martin v.

Brevard County Pub. Sch., 543 F.3d 1261, 1265 (11th Cir. 2008) (per curiam)

(citations omitted). Summary judgment is proper “if the pleadings, the discovery

and disclosure materials on file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(c)(2). “A party moving for summary judgment has the

burden of showing that there is no genuine issue of fact.” Eberhardt v. Waters,

901 F.2d 1578, 1580 (11th Cir. 1990) (quotation omitted).

                                III. DISCUSSION

      Rutland was not covered by a written insurance policy on July 31, 2003, the

date of her crash. Rutland failed to pay her premium on June 27, 2003. State

Farm sent a certified letter to Rutland informing her of the payment problems and

noticing her that the policy would be cancelled if the premium was not paid by

July 20, 2003. Upon Rutland’s failure to pay her premiums, State Farm followed

the proper procedure under Georgia law for cancellation of an insurance policy.

See O.C.G.A. § 33-24-44(d) (ten-day notice is sufficient when a policy is

                                          5
cancelled for non-payment of premiums). State Farm had no duty, under the

original written policy, to defend Rutland in any civil action arising from the July

31, 2003 crash “since this was subsequent to the date coverage was cancelled due

to nonpayment of premium.” Buffington v. State Auto. Mut. Ins. Co., 384 S.E.2d

873, 874 (Ga. Ct. App. 1989).

       Rutland, however, contends that despite the lack of a written insurance

policy, State Farm had a duty to defend her in the May 25, 2005 lawsuit. First,

Rutland argues that State Farm’s August 5, 2003 acceptance of her late premium

payment, combined with what Rutland views as an untimely and improper refund

of the late payment, created a material issue as to whether State Farm waived its

defense of lack of payment. Second, Rutland argues that Ms. Davis issued an oral

binder for retroactive coverage when she advised Rutland to send in her past due

premium payment. Third, Rutland argues that there is a genuine issue concerning

promissory estoppel. Rutland also argues that the district court abused its

discretion in excluding an affidavit from her witness, Jennifer Ebert.

A.    State Farm Did Not Waive Cancellation of Rutland’s Policy by Accepting a
      Late Premium Payment on August 5, 2003

      “If an insurance company receives, accepts, and retains past-due premiums

which are paid subsequent to the due date and expiration of the grace period, it



                                          6
renews the contract and waives the forfeiture for non-payments provided the

acceptance is unconditional and the facts are known.” Clark v. United Ins. Co. of

Am., 404 S.E.2d 149, 152 (Ga. Ct. App. 1991). Rutland relies on Clark for the

proposition that a genuine issue was raised as to whether State Farm’s non-

payment defense was waived upon its acceptance of Rutland’s late premium

payment. While similar, the facts in the present case are distinguishable from

Clark.

         State Farm provided Rutland with a refund for the amount she tendered as a

late payment for the cancellation period. State Farm sent Rutland a letter on

August 28, 2003 informing her they would not cover her crash and then refunded

the late payment on her September 2003 statement. In Clark, the insurance

company did not refund the late payments. Id. at 153. State Farm, however,

refunded Rutland’s late payment within weeks of determining that Rutland’s

policy had been cancelled during the time of the crash. State Farm’s refund

occurred over four years prior to Rutland filing suit against State Farm. Rutland

stresses the fact that State Farm held onto her late payment for “at least six

weeks.” However, State Farm did in fact refund the late payment and we do not

believe that six weeks is an unreasonable period of time for a company to

determine that a payment tendered to it was improper and due to be refunded.

                                          7
Therefore, State Farm did not “retain” a past-due premium as was the case in

Clark and thus, State Farm did not waive its defense of non-payment.

      Clark is also distinguishable from Rutland’s experience because in Clark

there was a pattern of late payments after the grace period. Id. The insurance

company in Clark would often accept late premium payments after the insurance

had expired upon the passing of the grace period. Rutland has not provided any

evidence that late payments after the grace period was a regular practice in her

dealings with State Farm.

      Rutland also finds issue with the way in which State Farm calculated the

refund and the time it took State Farm to refund the money. Neither of these

arguments raise a genuine issue of material fact that will save this case from

summary judgment. First, if Rutland believes that State Farm did not provide a

complete refund for the cancellation period, then Rutland can file a separate

lawsuit to collect this amount. We will not, however, find that State Farm

“retained” a past-due premium on the basis of Rutland’s speculation that State

Farm may have incorrectly calculated the refund. Rutland has offered nothing

more than conjecture and speculation that State Farm’s calculations of the refund

may have been in error, and this falls short of establishing a genuine issue of

material fact. Second, Rutland cites O.C.G.A. § 33-24-44(c)(1) in support of her

                                          8
assertion that State Farm’s refund was late. This part of the Georgia Code deals

with refunds upon cancellation of a policy, not refunds from past-due payments for

a period during which the policy was cancelled. This subsection of the Georgia

Code has no applicability to the facts at hand.

B.    Ms. Davis’s Representations to Rutland Did Not Create an Oral Binder
      Between Rutland and State Farm

      State Farm, Ms. Davis, and Mr. Davis all dispute Rutland’s claim that Ms.

Davis told Rutland that State Farm would provide retroactive coverage for her

crash. However, at the summary judgment stage we must take all facts in favor of

the nonmovant, Rutland, and so we will proceed under the assumption that Ms.

Davis did in fact represent to Rutland, twice, that State Farm would provide

retroactive coverage.

      “The principal shall be bound by all the acts of his agent within the scope of

his authority . . . .” O.C.G.A. § 10-6-51. “The principal is also bound when the

agent lacks express authority but is possessed of apparent authority.” Home

Materials, Inc. v. Auto Owners Ins. Co., 300 S.E.2d 139, 141 (Ga.1983). Ms.

Davis did not have the actual or apparent authority to bind State Farm to

retroactive coverage of Rutland’s crash.

      State Farm does not give its agents the express authority to offer retroactive



                                           9
coverage. Ms. Davis and Mr. Davis both testified that they understood State

Farm’s policy to be that an agent did not have the authority to offer retroactive

coverage. Furthermore, the merger clause in Rutland’s original insurance policy

stated that “this policy contains all of the agreements between you and us or any of

our agents.” Doc. 21-3 at 6. The policy did not contain any provisions allowing

for retroactive coverage.

      “‘Apparent authority’ is not predicated on whatever a third party chooses to

think an agent has the right to do, or even upon what the agent says he can do, but

must be based on acts of the principal which have led the third party to believe

reasonably the agent had such authority.” Thompson v. Gen. Motors Acceptance

Corp., 389 S.E.2d 20, 21–22 (Ga. Ct. App. 1989) (quotation omitted). The mere

idea of retroactive insurance coverage defies common sense. According to

O.C.G.A. § 33-1-2(2) insurance is a “contract which is an integral part of a plan

for distributing individual losses whereby one undertakes to indemnify another or

to pay a specified amount or benefits upon determinable contingencies.”

Coverage for an event that has already occurred contravenes the very definition of

insurance. A reasonable person speaking with any insurance agent would not

reasonably believe that an insurance agent has the authority to provide retroactive

coverage.

                                         10
      The fact that Rutland sent in a late payment after Ms. Davis allegedly told

her that State Farm would provide retroactive coverage is of no issue. The late

payment does not necessarily evidence a belief on Rutland’s part that Ms. Davis

had the authority to provide retroactive coverage. Even if Rutland truly believed

Ms. Davis had the authority to provide retroactive coverage, it was not a

reasonable belief.

C.    Rutland Has Not Established a Genuine Issue Concerning Promissory
      Estoppel

      “A promise which the promisor should reasonably expect to induce action

or forebearance on the part of the promisee or a third person and which does

induce such action or forebearance is binding if injustice can be avoided only by

enforcement of the promise.” O.C.G.A. § 13-3-44(a). Rutland argues that because

of Ms. Davis’s representations that State Farm would provide retroactive coverage

she renewed her policy with State Farm rather than entering into a new insurance

contract with another company at a lower rate.

      Rutland’s theory of promissory estoppel misses the mark. The

representations made by Ms. Davis occurred after Rutland’s crash and after

Rutland’s policy had been cancelled for non-payment. Even if Ms. Davis’s

representations did cost Rutland a higher insurance premium, this has nothing to



                                        11
do with State Farm’s refusal to cover her crash. At the very most, Rutland’s

reliance on Ms. Davis’s promise of retroactive coverage has cost her the difference

in insurance premiums. If Rutland wishes to file suit against State Farm for this

difference in insurance premiums she is free to do so. However, this theory of

detrimental reliance cannot provide Rutland with a basis to recover damages in

relation to State Farm’s refusal to cover her crash.

D.    The District Court Did Not Abuse Its Discretion in Excluding Jennifer
      Ebert’s Affidavit

      “We review evidentiary rulings made by the district court for abuse of

discretion and will reverse the district court’s decision only in cases where

substantial prejudice exists.” Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1259

(11th Cir. 2004) (citation omitted).

      Rutland attempted to introduce Jennifer Ebert’s affidavit as an example of

State Farm providing retroactive coverage. Ms. Ebert’s affidavit stated that she

had been in an accident, was informed that her policy had been cancelled for non-

payment, that she was to send in the late payment, and finally that State Farm

provided coverage for the accident that occurred during the period when her

policy was cancelled.

      The district court found that Ms. Ebert’s affidavit lacked certain facts that



                                          12
made it impossible for the court to determine its probative value. First, the

affidavit did not state whether it was Ms. Ebert or her bank who was at fault for

the non-payment of premiums. Second, the affidavit did not state whether State

Farm followed the proper notice procedures for cancellation of a policy. The

district court could not determine whether Ms. Ebert’s experience had any

relevance to Rutland’s case. Furthermore, the affidavit was untimely filed.

      We find that the district court did not abuse its discretion in excluding the

affidavit. First, the district court was well within its discretion in determining that

the affidavit lacked probative value. Second, Rutland was not substantially

prejudiced by the exclusion of this affidavit. Ms. Davis still lacked the actual

authority to authorize retroactive coverage, even if State Farm had previously

provided Ms. Ebert with coverage in a factually indistinguishable event. Further,

Rutland was not aware of Ms. Ebert’s experience when she sent in her late

payments, thus she cannot claim that Ms. Ebert’s experience led her to a

reasonable belief that Ms. Davis had the apparent authority to offer retroactive

coverage.

                                IV. CONCLUSION

      We find that State Farm properly cancelled Rutland’s insurance coverage

during the period of time that she crashed her car into the victims’ car. Further,

                                          13
Ms. Davis did not have the actual or apparent authority to engage in an oral binder

with Rutland for retroactive coverage of the crash. Rutland has not established a

plausible theory of promissory estoppel on which she can recover. And finally,

the district court did not abuse its discretion by excluding Jennifer Ebert’s

affidavit. The district court properly granted State Farm’s motion for summary

judgment and thus, Rutland’s motion for partial summary judgment was also

properly denied as moot.

AFFIRMED.




                                          14
