                              FIFTH DIVISION
                               REESE, P. J.,
                           MARKLE and COLVIN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                   Please refer to the Supreme Court of Georgia Judicial
                   Emergency Order of March 14, 2020 for further
                   information at (https://www.gaappeals.us/rules).


                                                                      June 2, 2020




In the Court of Appeals of Georgia
 A20A0734. GEICO GENERAL INSURANCE COMPANY v.
     BREFFLE.

      REESE, Presiding Judge.

      Geico General Insurance Company (“Geico”) appeals from an order of the

State Court of Gwinnett County denying Geico’s motion for summary judgment in

this coverage dispute with Geico’s insured, Harold Breffle. Geico argues that Breffle

did not provide it with notice “as soon as possible” after an underinsured motorist

struck the vehicle Breffle was driving. For the reasons set forth infra, we reverse.

      Viewed in the light most favorable to Breffle, as the nonmovant below,1 the

record shows the following facts. Breffle was injured in a motor vehicle collision on

April 28, 2016. At the time of the collision, Breffle was a named insured of a Geico

      1
      See American Safety Indem. Co. v. Sto Corp., 342 Ga. App. 263, 264 (1) (802
SE2d 263) (2017).
motor vehicle policy that provided for $250,000 in uninsured/underinsured motorist

(“UM”) coverage. The policy provided:

        The following conditions apply only to the [UM] Coverage:
        1. NOTICE
        As soon as possible after an accident notice must be given us or our
        authorized agent stating:
        (a) The identity of the insured,
        (b) The time, place and details of the accident; and
        (c) The names and addresses of the injured, and of any witnesses.
                                           ...
        3. ACTION AGAINST US
        Suit will not lie against us unless the insured or his legal representative
        has fully complied with all the policy terms.


        Breffle visited his primary care physician for lower back pain on the day of the

collision. A few days later, his neck began to hurt, and he received two cervical

epidural steroid injections in July 2016. In September, Breffle saw an orthopaedic

surgeon, who performed electric shock therapy and provided other non-surgical

treatment before recommending cervical surgery, which Breffle received in December

2016.

        Breffle was also experiencing numbness in his left hand, which continued after

the surgery. He received physical therapy in February and March 2017. When that did


                                            2
not resolve Breffle’s problems, the surgeon ordered another MRI of Breffle’s neck,

which was done on March 21, 2017. After reviewing the MRI, the surgeon

recommended a second surgery on Breffle’s neck. According to Breffle, this was

when he “first realized that the value of [his] injuries may be more than the $250,000

liability limits of the [other driver’s insurance] policy.”

      After the second surgery was performed in April 2017, Breffle developed a

severe infection requiring daily antibiotic infusions. Once that was resolved, he had

two additional surgeries to address the numbness in his left hand on July 20, 2017.

      In June 2017,2 Breffle’s counsel provided notice of the collision to Geico.

Breffle filed a personal injury complaint against the other driver in February 2018,

and served Geico as an unnamed defendant. Geico moved for summary judgment

based on Breffle’s failure to provide notice of the collision for more than 13 months.3

      The trial court denied Geico’s motion, relying on this Court’s decision in

Progressive Mountain Ins. Co. v. Bishop.4 Specifically, the trial court found that an



      2
        Although the parties dispute whether notice was provided on June 12, 2017,
or June 27, 2017, this discrepancy does not affect our analysis or conclusion.
      3
          See n. 2, supra.
      4
          338 Ga. App. 115 (790 SE2d 91) (2016).

                                           3
issue of material fact existed as to the timeliness of Breffle’s notice: “ignorance as to

the extent of injuries may excuse a delay[,] . . . because . . . unlike determining the

existence of coverage, the extent of injuries can take time to be revealed.”5 We

granted Geico’s application for interlocutory review, and this appeal followed.

      “We review a grant or denial of summary judgment de novo and construe the

evidence in the light most favorable to the nonmovant. Summary judgment is proper

when there is no genuine issue of material fact and the movant is entitled to judgment

as a matter of law.”6 With these guiding principles in mind, we turn now to Geico’s

claims of error.

      1. Geico contends that the terms of the notice provision are unambiguous and

therefore must be enforced as written. Breffle responds that he could have reasonably

understood that he had no affirmative duty to give notice to Geico because the

provision did not require the “insured” to provide notice and because “as soon as

possible” is vague and undefined.

               The ordinary principle of contract law, that a party seeking to
      recover under a contract must perform any applicable condition

      5
          See id. at 120 (2).
      6
        Sto Corp., 342 Ga. App. at 264 (1) (citing OCGA § 9-11-56 (c); additional
citation and punctuation omitted).

                                           4
      precedent before the contract becomes absolute and obligatory upon the
      other applies to contracts of insurance. Therefore, a forfeiture of
      insurance coverage may result when an insured fails to satisfy a
      condition precedent to coverage under the contract. [A] notice provision
      in an insurance contract that is expressly made a condition precedent to
      coverage is valid and must be complied with, absent a showing of
      justification.7


      Construing the UM “Conditions” provision as a whole,8 the only reasonable

construction is that either “the insured or his legal representative” must “fully

compl[y] with all the policy terms,” and thus see to it that the requisite notice is given

to Geico.

      “As soon as possible after an accident” is also unambiguous. While the

language “as soon as possible” “affords some leeway in providing notice of a claim

or suit or occurrence to an insurer, a lengthy, unjustifiable delay may be found as a

matter of law to have been so unreasonable as to foreclose coverage.”9 Further, the

      7
       Plantation Pipe Line Co. v. Stonewall Ins. Co., 335 Ga. App. 302, 310 (2)
(780 SE2d 501) (2015) (citations and punctuation omitted).
      8
      See King-Morrow v. American Family Ins. Co., 334 Ga. App. 802, 803 (780
SE2d 451) (2015)
      9
        Lankford v. State Farm Mut. Automobile Ins. Co., 307 Ga. App. 12, 16 (703
SE2d 436) (2010) (holding that an insured’s failure to provide notice until almost two
years after the collision was not, as a matter of law “as soon as reasonably possible”)

                                            5
policy requires notice as soon as possible “after an accident[.]”10 “To hold otherwise

would allow an insured to delay notifying the insurer for months or even years, so

long as the insured thought that other insurance existed to cover the loss. Such an

interpretation is contrary to the obvious intent of the policy, which is to require notice

[as soon as possible] after the occurrence of a covered event.”11

      Having concluded that the language of the policy is unambiguous and capable

of but one reasonable construction, we must enforce it as written.12

      2. Geico argues that the more than 13-month delay in this case was

unreasonable as a matter of law. We agree.




(citation and punctuation omitted); see also Richmond v. Ga. Farm Bureau Mut. Ins.
Co., 140 Ga. App. 215, 220-221 (2) (231 SE2d 245) (1976) (“Under all of the facts
and circumstances of a particular case it may be found that an insured’s delay in
giving notice of an accident to his insurer was unjustified and unreasonable. In such
event, on a motion for summary judgment, the court may rule on the question as a
matter of law.”).
      10
           See Royer v. Murphy, 277 Ga. App. 150, 151 (625 SE2d 544) (2006).
      11
           Lankford, 307 Ga. App. at 14-15 (citations and punctuation omitted).
      12
           Crafter v. State Farm Ins. Co., 251 Ga. App. 642, 644 (554 SE2d 571)
(2001).

                                            6
      As in Bishop,13 “the fact-based question presented here calls upon us to

consider our prior decisions as data points on a scatter plot[.]”14 Under the

circumstances of this case, Breffle’s more than 13-month delay was unexcused and

unreasonable as a matter of law.15 As detailed above, Breffle initially sought treatment

for his injuries on the same day as the collision (in April 2016), he initially saw an

orthopaedic surgeon in September, and he underwent surgery in December. However,

despite receiving other treatments during this time, he did not provide notice to Geico

until June 2017. Breffle’s contention that he did not think he would need to use his

uninsured coverage provides no excuse.16


      13
        338 Ga. App. at 120 (2) (affirming the denial of summary judgment where
the delay was less than 11 months, the insured provided notice more than a year
before undergoing surgery for his injuries, and the evidence suggested that he may
have had some hidden injury as a result of the car accident, the result of which was
not immediately apparent).
      14
           Id. at 119, n. 3 (2).
      15
       See Protective Ins. Co. v. Johnson, 256 Ga. 713, 713-714 (1) (352 SE2d 760)
(1987) (unexcused 17-month delay in providing notice to employer’s insurer
unreasonable as a matter of law and not “as soon as practicable,” notwithstanding
employee’s contention that he thought his employer would file a claim and he did not
know the name of his employer’s insurer).
      16
         See Lankford, 307 Ga. App. at 16 (“[E]ven if the [insured’s] conversation
with [his insurance agent] could satisfy the notice requirement, it did not take place
until approximately one year after the accident, and [the insured] offers no

                                           7
      Based on the foregoing, we reverse the trial court’s order denying Geico’s

motion for summary judgment.

      Judgment reversed. Markle and Colvin, JJ., concur.




justification for this delay. Any claim that he was unaware that he might need to
utilize his UM coverage until some point after the accident occurred provides no
excuse.”).

                                       8
