           Case: 15-14047   Date Filed: 10/04/2016   Page: 1 of 7


                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-14047
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 1:14-cv-00837-AT

TRAVELERS CASUALTY AND SURETY COMPANY,

                                                     Plaintiff – Appellee,

                                  versus

DWIGHT STEWART,

                                                     Defendant – Appellant.


                      ________________________

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

                            (October 4, 2016)



Before JORDAN, JULIE CARNES and BLACK, Circuit Judges:

PER CURIAM:
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       Dwight Stewart appeals (i) summary judgment entered in favor of Travelers

Casualty and Surety Company (Travelers) in Travelers’ declaratory judgment

action regarding a third-party insurance policy and (ii) dismissal for failure to state

a claim of bad faith against Travelers. Upon review, 1 we affirm.

                                     I. BACKGROUND 2

       Joseph and DeLisa Hayes jointly own real property at 5515 Mallard Trail,

Lithonia, Georgia, with respect to which Travelers issued a homeowners policy

naming Joseph and DeLisa as the insureds. The policy covered the period between

December of 2010 and December of 2011, and it included as additional insureds

“relatives” of Joseph and DeLisa who resided in their “household.” Joseph and

DeLisa resided at the property as husband and wife until June of 2008, when they

separated. Each ceased to live at the property from the time of the separation and

the Hayeses began to rent the property. Malcolm Brown, the natural son of Joseph

Hayes and stepson of DeLisa Hayes, lived with the Hayeses sporadically during his


       1
           We review de novo a grant of summary judgment. Jurich v. Compass Marine, Inc., 764
F.3d 1302, 1304 (11th Cir. 2014). Summary judgment is appropriate where there is no genuine
dispute of material fact and the movant is entitled to judgment as a matter of law. Id.; Fed. R.
Civ. P. 56(a). “We review de novo the district court’s grant of a motion to dismiss for failure to
state a claim, accepting the allegations in the complaint as true and construing them in the light
most favorable to the nonmoving party.” Kizzire v. Baptist Health Sys., Inc., 441 F.3d 1306,
1308 (11th Cir. 2006).
         2
           Because Stewart failed to file a response to Travelers’ statement of material facts, as
required by N.D. Ga. R. 56.1(B)(2), instead submitting his own statement of material facts, we
treat Travelers statement of material facts as true to the extent they are supported by the
evidence, do not make credibility determinations, do not involve legal conclusions, and are not
disputed by Defendant’s own statement of facts. See Reese v. Herbert, 527 F.3d 1253, 1268–71
(11th Cir. 2008).
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childhood. According to his father, Brown became something of a “floater” when

he turned seventeen, spending the next six years at times in North Carolina, South

Carolina, and Georgia. Brown had access to the Mallard Trail property, and during

2011 he would stay there a few nights a week. In June 2011, Brown negligently

discharged a firearm and injured Dwight Stewart, the Appellant in this case, who

was visiting the property at the time. Stewart filed a complaint in the Superior

Court of DeKalb County on May 16, 2012, naming Joseph and DeLisa Hayes and

a John Doe as defendants. Travelers learned of the shooting incident and the suit

from a July 9, 2012 letter from Stewart’s counsel demanding settlement in the

amount of the policy and alleging the Hayeses (but not Brown) as the insured

policyholders. Stewart joined Brown as a defendant on October 18, 2012, and

dismissed the Hayeses on April 12, 2013. Brown was not served until April 23,

2013. He failed to appear in court and a default judgment was entered against him

on Stewart’s claims of negligence and negligence per se with a jury awarding

Stewart $1.3 million in damages. Brown never sought a defense from Travelers or

requested coverage.

      By letters dated February 15, 2014 and February 28, 2014, Stewart

demanded that Travelers pay the entire amount of the judgment to Stewart.

Travelers filed the present suit on March 24, 2014 seeking a declaratory judgment

that it has no duty to pay Stewart. In his answer, Stewart asserted a counterclaim


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for bad faith failure to settle, which the district court dismissed for failure to state a

claim. Thereafter, the district court denied Stewart’s motion for reconsideration or

to amend his complaint when it granted summary judgment to Travelers, reasoning

that absent an obligation to insure, the bad faith claim must also fail.

                                   II. DISCUSSION

      In his initial brief, Stewart rests his summary judgment appeal exclusively

on the basis of Hoover v. Maxum Indemnity Co., 730 S.E.2d 413 (Ga. 2012),

contending that Travelers is barred from asserting “policy related defenses”

because Travelers rejected Stewart’s claim without a reservation of rights.

However, the district court did not err in finding Hoover inapplicable to this case.

Hoover involved an insurer’s denial to defend or compensate a named insured

upon formal request by the named insured. Hoover, 730 S.E.2d at 415–16. The

court held that because it declined to defend the insured, the insurer was unable to

assert defenses to coverage that it had not specifically reserved in its denial. Id. at

416–17. Despite Stewart’s repeated references to his own demands for payment

from Travelers, it is undisputed that Brown, the purported insured, never notified

Travelers of a claim or requested coverage or a defense. As the district court

correctly perceived, Georgia law requires the named insured or additional insured

affirmatively to elect coverage under the policy. See Grange Mut. Cas. Co. v.

Snipes, 680 S.E.2d 438, 440 & n.3 (Ga. Ct. App. 2009) (collecting cases and


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stating that “[u]nder Georgia law, a defendant . . . who may be entitled to be an

additional insured under an insurance policy must “elect” coverage by forwarding

a copy of the complaint to the insurer”). In any event, Hoover did not hold that the

assertion that an individual is not an insured under a policy is an impermissible

policy defense. Hoover, 730 S.E.2d at 416–418; see also Keever v. First Am. Title

Ins. Co., No. 4:13-CV-00246-HLM, 2014 WL 11460792, at *10 (N.D. Ga. May

21, 2014) (“The Hoover opinion did not address the present question of whether an

insurance company can waive the defense that a claimant was never an insured in

the first place, and this Court is unable to make such a leap based on the language

therein.”).

       Stewart’s brief lacks any treatment of the issue of whether or not Brown was

an “insured” under the policy, the district court’s primary ground for granting

summary judgment in favor of Travelers.3 Apart from a merely descriptive

reference to the holding of the district court in the brief’s statement of issues, there

is no discussion as to whether Brown was an insured under the policy.

Accordingly, Stewart has abandoned the issue. See Sepulveda v. U.S. Att’y Gen.,

       3
          Stewart’s response to Travelers’ motion for summary judgment likewise omitted any
substantive discussion of the issue of whether Brown was an insured under the policy. See
Response to Motion for Summary Judgment at 14 (reciting, in a single paragraph, facts
“unfavorable” to Travelers on the point but concluding “there is no need to revisit any of these
issues because the facts were already established at the underlying jury trial and are now res
judicata,” and providing no corresponding legal analysis). Even Stewart’s reply brief on appeal,
large portions of which Travelers moved to strike as well beyond the scope of the issues raised in
the initial briefs, failed to elaborate on the issue of whether Brown was an insured under the
policy.
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401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (“When an appellant fails to offer

argument on an issue, that issue is abandoned.”); see also Hamilton v. Southland

Christian Sch., Inc., 680 F.3d 1316, 1318–19 (11th Cir. 2012) (holding that a brief

which merely mentions an issue once in a descriptive manner abandons the issue);

Kelliher v. Veneman, 313 F.3d 1270, 1274 n.3 (11th Cir. 2002) (stating that

because the appellant “only mentioned his EEOC retaliation claim in the summary

of the argument in his initial brief” and “made no arguments on the merits as to

this issue, the issue is deemed waived”).

       To the extent Stewart asserts collateral estoppel based on the DeKalb County

proceedings, the argument clearly fails. In that case, Stewart asserted negligence

and negligence per se and claimed statutory attorneys’ fees against Brown in

connection with the shooting incident. There is no evidence the issues of Brown’s

residency and whether he was an insured were “essential to the judgment” in that

case. Swain v. State, 552 S.E.2d 880, 882 (Ga. Ct. App. 2001). In any event,

Travelers was not a party to the DeKalb County case and ceased all involvement

when the Hayeses were dismissed on April 12, 2013. See id. (“[F]or application of

the doctrine of collateral estoppel . . . both proceedings must involve the same

parties or their privies . . . .”).

       Finally, because we affirm summary judgment and hold that Travelers has

no obligations to Stewart under the policy, Stewart’s bad faith claim must also fail


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as a matter of law, as the district court reasoned in denying Stewart’s motion for

reconsideration and to amend complaint. In the absence of any duty to provide

coverage there is no bad faith, so we must affirm the district court’s dismissal for

failure to state a claim. See O.C.G.A. § 33-4-6 (bad faith claim available “in the

event of a loss which is covered by a policy of insurance”); Orr v. Dairyland Ins.

Co., 273 S.E.2d 630, 631 (Ga. Ct. App. 1980) (“In the absence of basic liability by

[the insurer], there likewise could have been no liability for statutory

penalties . . . .”); Morris v. Ins. Co. of N. Am., 151 S.E.2d 813, 814 (Ga. Ct. App.

1966) (“[T]he [claim] of bad faith and statutory penalty . . . is without merit since

there was no coverage.”).4

                                     III. CONCLUSION

       For the foregoing reasons, the district court did not err in granting summary

judgment to Travelers, and consequently, Stewart’s bad faith claims also fail.

       AFFIRMED.




       4
         Similarly, there is no need to address Travelers’ motion to strike portions of Stewart’s
reply brief because we affirm summary judgment in Travelers’ favor.
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