            Case: 15-11352   Date Filed: 10/16/2015   Page: 1 of 3




                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-11352
                         Non-Argument Calendar
                       ________________________

                    D.C. Docket No. 1:13-cv-01130-SCJ



JOHNSON LANDSCAPES, INC.,

                                              Plaintiff - Appellant,

versus

FCCI INSURANCE COMPANY,

                                              Defendant - Appellee.

                       ________________________

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

                             (October 16, 2015)

Before WILSON, JORDAN, and JILL PRYOR, Circuit Judges.

PER CURIAM:
                Case: 15-11352      Date Filed: 10/16/2015      Page: 2 of 3


       Appellant Johnson Landscapes, Inc. (Johnson Landscapes) appeals the

district court’s order granting summary judgment in favor of Appellee FCCI

Insurance Company (FCCI) in an action for declaratory relief and for damages

arising from FCCI’s alleged bad-faith refusal to provide coverage and defend.

Johnson Landscapes initially filed suit under O.C.G.A. § 9-4-2 and O.C.G.A. § 33-

4-6 after FCCI refused to extend coverage and defend against claims stemming

from the collapse of several retaining walls built by Johnson Landscapes at a

shopping mall. 1 The wall failures began in 2007 and continued until 2011.

       On appeal, Johnson Landscapes contends that disputed issues of fact exist as

to whether timely notice of its insurance claims was provided to FCCI via Johnson

Landscapes’s independent insurance agent, Yates Insurance Agency (Yates).

Moreover, Johnson Landscapes contends that notice to Yates was sufficient to

constitute notice to FCCI since Yates served as a dual agent for both Johnson

Landscapes and FCCI. Finally, Johnson Landscapes contends that even if notice to

Yates was insufficient to constitute notice to FCCI, its delay in directly notifying

FCCI in 2011 is excusable because under the circumstances, such a delay was

reasonable and justified.

       After consideration of the parties’ briefs and upon thorough review of the

record, we agree with the district court that notice was a condition precedent under

       1
        Johnson Landscapes also asserted a claim pursuant to O.C.G.A. § 13-6-11 for attorney’s
fees and costs.
                                              2
               Case: 15-11352     Date Filed: 10/16/2015   Page: 3 of 3


the policy; that “Yates was not a dual agent acting on behalf of both Johnson

Landscapes and FCCI”; and that, under the circumstances, “a four year delay

clearly is not prompt notice and Johnson Landscape’s 2011 notice was untimely.”

Thus, Johnson Landscapes’s failure to provide prompt notice relieved FCCI of any

duty to defend or provide coverage pursuant to the insurance policy between it and

Johnson Landscapes. Accordingly, summary judgment was properly entered, and

we affirm the order of the district court.

      AFFIRMED.




                                             3
