297 Ga. 174
FINAL COPY



     S14G1878. TRAVELERS HOME AND MARINE INSURANCE
                 COMPANY v. CASTELLANOS.

      HUNSTEIN, Justice.

      In this dispute over recovery under an uninsured motorist (UM) insurance

policy, we granted certiorari to consider the burden of proof on summary

judgment as between the insured plaintiff and the UM carrier, where the UM

carrier has denied coverage based on a claim that the at-fault driver was not

“uninsured” as defined in the UM policy because the driver’s liability carrier

had not “legally denied” coverage. We conclude that the Court of Appeals erred

in placing the burden of proof on the UM carrier in this instance, and we

therefore reverse.

      In connection with a 2009 car accident, Appellee Luis Castellanos

obtained a judgment against Jose Santiago for compensatory and punitive

damages. In the tort litigation, Santiago was defended by his insurer, United

Automobile Insurance Company; Santiago was absent from trial. After the trial,

United offered to settle with Castellanos for an amount less than the total
judgment, claiming that punitive damages were not covered under Santiago’s

policy. After Castellanos rejected United’s offer, United denied coverage to

Santiago on the ground that he had failed to cooperate in defending the lawsuit

as required under his policy.

      Castellanos then sought payment of the judgment from his uninsured

motorist carrier, Travelers Home and Marine Insurance Company. Travelers

had participated in discovery in the underlying tort suit and its counsel had

attended the trial. The Travelers policy provides coverage for, inter alia,

compensatory damages that an insured is “legally entitled to recover from the

owner or operator of an ‘uninsured motor vehicle.’” An “uninsured motor

vehicle” is defined, in pertinent part, as a motor vehicle “[t]o which a liability

bond or policy applies at the time of the accident but the bonding or insurance

company . . . [l]egally denies coverage.”1 Castellanos made a written demand

for payment under his UM policy, but Travelers never responded to the demand.

Castellanos thereafter sued Travelers for bad faith refusal to pay under its

policy. See OCGA § 33-7-11 (j) (authorizing suit for recovery of penalties and


     This policy language is consistent with the Georgia Uninsured Motorists Act.
      1


OCGA § 33-7-11 (b) (1) (D) (iii).
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attorney fees for insurer’s bad faith refusal to pay covered loss). As part of its

defense, Travelers contends that United did not “legally deny” coverage under

Santiago’s policy, such that Santiago was not an “uninsured motorist” and

Castellanos’ accident was not covered under the UM policy.

      On cross-motions for summary judgment, the trial court agreed with

Travelers, concluding that Castellanos had “failed to present evidence that there

was a ‘legal denial’ of coverage by United.” A fractured Court of Appeals

reversed the award of summary judgment to Travelers, holding that the trial

court had improperly shifted the burden onto Castellanos to come forward with

evidence to rebut Travelers’ defense. Castellanos v. Travelers Home & Marine

Ins. Co., 328 Ga. App. 674 (1) (760 SE2d 226) (2014). The majority concluded:


            Although evidence may exist that United's denial of benefits
      (on the basis that Santiago failed to cooperate with the defense) was
      not legally sustainable (for example, if United never requested his
      cooperation), once Castellanos met his threshold burden of showing
      that he was entitled to UM benefits, Travelers had the burden of
      presenting such evidence to justify its denial of coverage, as it
      would for any other affirmative defense.

Id. at 678-679. The dissent disagreed, opining that it was Castellanos’ burden

to show that Santiago was an uninsured motorist and that, as part of that


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showing, Castellano bore the burden, on motion for summary judgment, of

producing evidence that United had legally denied coverage. Id. at 680-685

(McMillian, J., dissenting). The dissent further opined that the mere fact that

Santiago had failed to appear at trial was not sufficient to meet this burden and

that Castellanos was required to furnish “proof, at the very least, that the insurer

made good faith efforts to secure the insured’s attendance and/or cooperation.”

Id. at 685. This, the dissent opined, Castellanos had failed to do.

      We granted certiorari to clarify the burden of proof issue. We agree with

the Court of Appeals’ dissenting judges as to the proper allocation of the burden

of proof; we also agree that Castellanos failed to satisfy this burden.

      1. We adopt the straightforward analysis employed by the Court of

Appeals’ dissent regarding the parties’ relative burdens of proof on Travelers’

motion for summary judgment:

             It is well settled . . . that Castellanos, as the insured, had “the
      . . . burden to prove (1) the existence of a policy of liability
      insurance containing uninsured motorist protection, and (2) that
      [Santiago] was an uninsured motorist at the time of the [wreck]”. .
      ..
             This requirement is simply a reiteration of the principle that
      an insured claiming an insurance benefit “has the burden of proving
      that a claim falls within the coverage of the policy.” Thus, “[t]o
      establish a prima facie case on a claim under a policy of insurance

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      the insured must show the occurrence was within the risk insured
      against.”. . .

             The applicable policy provisions state that Travelers agreed
      to “pay compensatory damages which an ‘insured’ is legally entitled
      to recover from the owner or operator of an ‘uninsured motor
      vehicle’” because of an insured's bodily injury or property damage
      caused by an accident. The Policy defines an “uninsured motor
      vehicle” in pertinent part as “a land motor vehicle or trailer of any
      type . . . [t]o which a liability bond or policy applies at the time of
      the accident but the bonding or insurance company . . . [l]egally
      denies coverage.” (Emphasis supplied.) . . . And this Court has
      held that “coverage [cannot] be said to have been legally denied
      unless the denial is, under applicable law, legally sustainable.”
      (Emphasis omitted.)

(Citations omitted.) Castellanos, 328 Ga. App. at 680-681 (McMillian, J.,
dissenting).

      Thus, in order to present a prima facie case for coverage and thereby

withstand Travelers’ motion for summary judgment on his bad faith refusal to

pay claim, Castellanos bears the burden of presenting evidence that Santiago's

vehicle was an uninsured motor vehicle under the UM provisions of the

Travelers policy. Where, as here, Castellanos avers that Santiago’s vehicle was

uninsured by virtue of United’s denial of coverage, Castellanos must show that

this denial was legally sustainable. See Southern General Ins. Co. v. Thomas,

197 Ga. App. 196, 197 (397 SE2d 624) (1990); Frank E. Jenkins III et al., Ga.


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Automobile Insurance Law § 32:4 (a) (2014-2015 ed.).

      To justify the denial of coverage for an insured’s non-cooperation under

Georgia law, the insurer must establish:

      (a) that it reasonably requested the insured’s cooperation in
      defending against the plaintiff’s claim, (b) that its insured wilfully
      and intentionally failed to cooperate, and (c) that the insured’s
      failure to cooperate prejudiced the insurer’s defense of the claim.

Vaughan v. ACCC Ins. Co., 314 Ga. App. 741, 742-743 (2) (725 SE2d 855)

(2012); see also Cotton States Mut. Ins. Co. v. Proudfoot, 123 Ga. App. 397 (3)

(181 SE2d 305) (1971); H.Y. Ayers & Sons, Inc. v. St. Louis Fire & Marine Ins.

Co., 120 Ga. App. 800 (3) (172 SE2d 355) (1969). Here, Castellanos must

prove these same elements to demonstrate that United’s denial of coverage was

legally sustainable and that, therefore, Santiago was an uninsured motorist under

the Travelers policy. To withstand Travelers’ motion for summary judgment,

Castellanos must come forward with “‘specific evidence giving rise to a triable

issue’” on each of these elements. Cowart v. Widener, 287 Ga. 622, 623 (1) (a)

(697 SE2d 779) (2010). Specifically, Castellanos bears the burden of producing

evidence that (1) United reasonably requested Santiago’s cooperation in the tort

litigation; (2) Santiago wilfully and intentionally refused to cooperate; and (3)


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prejudice resulted therefrom.

      In assessing the nature of the evidence required to discharge the plaintiff’s

burden in this scenario, however, we bear in mind that “[u]ninsured motorist

statutes are remedial in nature and must be broadly construed to accomplish the

legislative purpose.” Smith v. Commercial Union Assur. Co., 246 Ga. 50, 51

(268 SE2d 632) (1980). That “legislative purpose” is

      to require some provision for first-party insurance coverage “to
      facilitate indemnification for injuries to a person who is legally
      entitled to recover damages from an uninsured motorist, and thereby
      to protect innocent victims from the negligence of irresponsible
      drivers.”

Id. Accordingly, in these circumstances, we must be mindful that the plaintiff

is a stranger to the relationship between the tortfeasor and its insurer and that,

therefore, the plaintiff’s access to the information necessary to establishing his

claims will be limited. In obtaining such evidence, the plaintiff will likely be

compelled to resort to discovery from the insurer regarding its efforts to contact

its insured and its lack of success in securing cooperation; given its potential

liability for refusal to pay a covered claim, we would expect the insurer to

maintain documentation to substantiate its non-cooperation defense, and

requiring the plaintiff to obtain such evidence to establish his resulting

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entitlement to UM coverage is not unreasonable.

      However, regarding the prejudice element, concrete evidence may be

difficult, if not impossible, for the plaintiff to obtain. Nevertheless, in some

circumstances, the likelihood of prejudice may be so high that it can be

presumed, even in the absence of concrete evidence. The complete absence of

the tortfeasor from trial is such a circumstance. As our Court of Appeals has

explained:

            Every person familiar with the trial of cases by jury knows
      that the case of an individual defendant is seriously, if not
      hopelessly, prejudiced by his absence from the trial. His failure to
      be present in defense of the claim can have an intangible effect
      upon the jury both as to the question of liability and the amount of
      the verdict, the net effect of which is difficult to measure.
      Unexpected developments in the plaintiff’s evidence might be offset
      by an explanation on the part of the insured. This is particularly
      true where, as here, the insured is a material witness as to the issues,
      or some of them.

(Citations and punctuation omitted.) H.Y. Ayers & Sons, Inc., 120 Ga. App. at

803. A number of courts have presumed prejudice to the insurer when the

insured is completely absent from trial. See id. (citing authorities presuming

that insured’s wilful failure to attend trial to aid in his defense is prejudicial).

Such a presumption seems especially warranted in the UM context, where the


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plaintiff and his UM insurer are strangers to the relationship between the

tortfeasor and the tortfeasor’s insurer, and where establishing prejudice from the

tortfeasor’s absence essentially requires the plaintiff to undercut his own legal

position vis-à-vis the tortfeasor by positing that, had the tortfeasor cooperated,

the tortfeasor would have fared better in the tort litigation. Accordingly, in the

UM context, a plaintiff may rely on a presumption that the tortfeasor’s complete

absence from trial prejudiced the tortfeasor’s insurer so as to permit that insurer

to lawfully deny coverage to the tortfeasor, subject to rebuttal by the UM carrier.

   2. Applying this presumption of prejudice and finding no evidence here to

rebut it, we are left to assess whether Castellanos has adduced evidence that

United reasonably requested Santiago’s cooperation in the tort litigation and that

Santiago wilfully and intentionally failed to cooperate. Having carefully

reviewed the record, we find that Castellanos has failed to satisfy this burden.

As both the trial court and the Court of Appeals’ dissent noted, Castellanos has

presented absolutely no evidence regarding the nature and extent of United’s

efforts to contact Santiago regarding the tort litigation.2 While it is undisputed

      2
        In fact, we have uncovered no evidence that Santiago had any actual notice
of the litigation at all, which, if true, would prevent a finding that Santiago had
wilfully and intentionally failed to participate in it. Though Castellanos claims to
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that Santiago failed to appear for trial and that the interrogatory responses

submitted on his behalf by counsel are substantially incomplete, there is no

evidence in the record regarding what measures United took to secure his

presence and participation. Though Castellanos asserted in his brief and at oral

argument that United issued a reservation of rights to Santiago based on his non-

cooperation, the record contains no actual proof thereof.3 While Castellanos

also referred to statements in place made by United’s counsel at trial to the

effect that Santiago had relocated to Mexico, the record contains no trial

transcript reflecting such comments.4 In addition, while Santiago’s son attested

in an affidavit that his father had relocated to Mexico, this fact alone

demonstrates nothing about United’s efforts to contact him regarding the




have perfected service on Santiago, the record reflects only that a summons was
served on Santiago’s son, who was also named in the tort litigation, and who attested
via affidavit that his father did not reside with him at the time of service or at any
point during the pendency of the tort litigation.
      3
        Rather, on this point, the record contains only Castellanos’ unverified
complaint averring that United had issued such a reservation of rights and Travelers’
answer, averring that it lacked information sufficient to admit or deny this allegation.
      4
          Indeed, it appears that the trial was not transcribed.
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litigation.5 All that appears in the record other than allegations in pleadings and

briefs is the letter — which has nowhere in the record even been formally

authenticated — by which United denied coverage for Castellanos’ claim, citing

Santiago’s “lack of cooperation in the defense of this lawsuit” and “failure to

attend the resulting trial.” This letter contains no information regarding

United’s efforts to contact Santiago.

      We are sympathetic to Castellanos, who has endured years of litigation in

a fruitless attempt to obtain and satisfy a judgment, first against the tortfeasor

whose negligence caused his injuries, next against the tortfeasor’s insurer, and

finally against his own UM carrier, to whom he has duly paid premiums to

protect himself against just such an eventuality.           But our sympathy for

Castellanos’ unfortunate plight cannot justify suspension of the procedural and

evidentiary standards governing these proceedings. Because Castellanos has

failed to adduce any evidence of United’s efforts to secure Santiago’s

cooperation or Santiago’s wilful and intentional disregard thereof, he has failed

to satisfy his burden of establishing a genuine issue of material fact, see Cowart,

      5
        The statements in this affidavit are somewhat suspect in any event; though the
affidavit states that Santiago relocated to Mexico in May 2009, the car accident with
Castellanos did not occur until September 2009.
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287 Ga. at 623, on either of these essential elements of his claim of entitlement

to UM coverage. Accordingly, Travelers is entitled to summary judgment, and

the trial court was correct in so holding.

      Judgment reversed. All the Justices concur.



                             Decided June 1, 2015.

      Certiorari to the Court of Appeals of Georgia – 328 Ga. App. 674.

      Magill Atkinson Dermer, David M. Atkinson, Ariel E. Shapiro, for

appellant.

      Larry E. Stewart, for appellee.




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