FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JUNE 8, 2009

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-14785

________________________

D. C. Docket No. 07-00083-CV-WCO-2

INFINITY GENERAL INSURANCE CO.,

f.k.a. Coventry Insurance Co.,

Plaintiff-Appellee,

versus

TONYA BOGGUS REYNOLDS, Individually,

VIVIANA TOVER LLOYD, Individually, et al.,

Defendants-Appellants.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(June 8, 2009)

Before WILSON, ANDERSON, Circuit Judges, and GOLDBERG,* Judge.

ANDERSON, Circuit Judge:

_______________

* Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting

by designation.
CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF GEORGIA,

PURSUANT TO O.C.G.A. § 15-2-9.

TO THE SUPREME COURT OF GEORGIA AND ITS HONORABLE

JUSTICES:

The instant case presents a question of Georgia insurance law that we believe

is appropriate for certification to the Supreme Court of Georgia. Before setting out

the question to be certified, we set forth the relevant facts and dispose of a few

issues governed by federal law. 

I. FACTUAL BACKGROUND

On June 5, 2006, the insured, Russell Graham, purchased a commercial

automobile insurance policy from Infinity General Insurance Company, formerly

known as Coventry Insurance Company (herein referred to as the “Insurance

Company”). While operating the insured vehicle on August 2, 2006, the insured’s

son was involved in a collision, fatally injuring his two passengers, Joey Lee

Reynolds and Dustin Edward Lloyd. The crucial issue of Georgia insurance law to

be certified in this case is whether the insurance policy was in effect at the time of

the collision.

The Insurance Company filed the instant declaratory judgment and/or

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interpleader action. Defendants included the insured, the estate of Joey Lee

Reynolds, the widow of Joey Lee Reynolds, the estate of Dustin Edward Lloyd, and

the widow of Dustin Edward Lloyd. The several defendants other than the insured 1

are the appellants in this appeal.

The district court found that it had subject matter jurisdiction both under 28

U.S.C. § 1335, and, because there was complete diversity and an amount in

controversy exceeding $75,000, under 28 U.S.C. § 1332. The district court then

granted summary judgment in favor of the Insurance Company, concluding that

there were no genuine issues of material fact. The court thus resolved the facts of

the case, to wit: that the Insurance Company never received the insured’s alleged

premium payment, that the premium was overdue after July 5, 2006, and that the

July 10, 2006, cancellation notice and the testimony of Joy Lietch did not extend

the overdue premium payment date. The district court then held as a matter of

Georgia law that the July 10, 2006, cancellation notice effectively cancelled the

policy.

We first resolve several issues as a matter of federal law, and then we set

forth the facts and discussion relevant to the certified question. 

The Reynolds and Lloyd defendants are plaintiffs in two underlying suits seeking 1

damages both pursuant to a wrongful death action and a survivorship action. 

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II. SUBJECT MATTER JURISDICTION OF THE DISTRICT COURT

We conclude that the district court had subject matter jurisdiction of this

declaratory judgment cause of action and interpleader cause of action. With

respect to the interpleader cause of action, we conclude as a matter of federal law

that the district court had subject matter jurisdiction under 28 U.S.C. §1335; we

readily reject Appellants’ argument that there is not sufficient adversity among the

claimants for the fund. With respect to the declaratory judgment cause of action,

we conclude as a matter of federal law that the district court had subject matter

jurisdiction. The parties are completely diverse and we discern no error in the

district court’s conclusion that the amount in controversy exceeds $75,000. 

Appellants’ other jurisdictional challenges are rejected without need for further

discussion. 

III. OTHER ISSUES GOVERNED BY FEDERAL LAW

In the district court and again on appeal, Appellants argue that there was a

genuine issue of material fact as to whether the Insurance Company received the

insured’s premium payment which was allegedly mailed in late June 2006, and

which would have avoided the non-payment problem and the subsequent

cancellation. For the reasons set forth in the district court’s August 8, 2008, Order,

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under the heading “The Mailbox Rule,” we reject this argument. We hold that

Appellants failed to adduce evidence sufficient to create a genuine issue of fact on

that issue; thus, the facts of the instant case are that the premium was never paid. 

Similarly, Appellants’ reliance on Joy Lietch’s testimony to create a genuine issue

as to whether the July 10, 2006, notice extended the due date to July 25, 2006, is

flawed. We agree with the district court that Appellants adduced insufficient

evidence to create a genuine issue of fact; thus, the facts of the case for this appeal

are that the premium was overdue after July 5, 2006, and that the July 10, 2006,

cancellation notice was sent after the premium was overdue. We also reject

Appellants’ other arguments that there are genuine issues of material fact.

IV. FACTS AND DISCUSSION RELEVANT TO THE CERTIFIED QUESTION

The issue of Georgia insurance law to be certified is whether the Insurance

Company effectively cancelled the policy. On or around June 15, 2006, the insured

received a payment notice from the Insurance Company, indicating the premium

due and the due date of July 5, 2006. On July 10, 2006, the Insurance Company

sent the insured a cancellation notice, which indicated that the premium installment

had not been paid and that his insurance coverage would cease at 11:59 p.m. on the

cancellation date, July 25, 2006, unless the premium payment was received before

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that cancellation date. The July 10, 2006, notice sets out the cancellation date of

July 25, 2006, in a separate box at the top of the notice, and in another separate box

at the bottom of the notice. The notice contained the following language:

YOU ARE HEREBY NOTIFIED IN ACCORDANCE WITH THE

TERMS AND CONDITIONS OF THE ABOVE MENTIONED

POLICY, AND IN ACCORDANCE WITH THE LAW, THAT YOUR

INSURANCE POLICY WILL CEASE AT 11:59 P.M. ON THE

CANCELLATION DATE MENTIONED ABOVE, UNLESS WE

RECEIVE YOUR PAYMENT BEFORE THE CANCELLATION

DATE.

IF THE PREMIUM AMOUNT LISTED ON THIS NOTICE IS NOT

RECEIVED BY THE COMPANY BEFORE THE CANCELLATION

DATE SPECIFIED, YOUR INSURANCE WILL CEASE AT 11:59

P.M. ON THAT DATE.

No premium payment was received by the Insurance Company. The issue to

be certified is whether the July 10, 2006, notice operated to cancel the policy. If

so, then there was no coverage of the accident at issue in the underlying cases

which occurred on August 2, 2006. 

We understand that the relevant provisions of the Georgia statutes are found

in Georgia Code § 33-24-44, which provides, in relevant part, that an effective

notice of cancellation must be mailed at least ten days prior to the effective date of

cancellation. Appellants rely upon language in Pennsylvania National Mutual

Casualty Insurance v. Person, 297 S.E.2d 80, 82 (Ga. Ct. App. 1982), stating: “A

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notice of cancellation which states that a policy will be cancelled on a specified

date unless premiums due are paid prior to that date is not a notice of cancellation,

but merely a demand for payment.” Appellants note that virtually identical

language was included in the later case of State Farm Mutual Automobile

Insurance Co. v. Drury, 474 S.E.2d 64, 68 (Ga. Ct. App. 1996), to-wit: “I charge

you that a notice of cancellation which states that a policy will be cancelled on a

specified date unless premiums due are paid prior to that date is not a notice of

cancellation, but merely a demand for payment.” On the basis of the foregoing

language, Appellants argue that the instant notice is not effective to cancel the

policy at issue as of July 25, 2006. 

The Insurance Company argues that the language from the foregoing cases is

dicta, and that the holding of both cases is that the notice of cancellation was

ineffective because it was given before the premium was due. See Person, 297

S.E.2d at 82 (“In the instant case, the notice of cancellation was not given to the

insured upon her failure to pay the premium when due, rather the notice of

cancellation was given before the premium was due.”) (emphasis in original);

Drury, 474 S.E.2d at 67 (“As in Person, the notice of cancellation was not given to

Drury upon his failure to pay the premium ‘when due.’ . . . The October 25 notice

of cancellation was ineffective because the premium was not yet ‘due.’”). The

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Insurance Company also argues that, under § 33-24-44, the cancellation cannot be

effective for at least ten days after the notice of cancellation is given. The

Insurance Company argues that the obvious purpose of the statute is to provide the

insured with an opportunity to make the premium payment and keep the policy in

force, or to make other insurance arrangements. Accordingly, the Insurance

Company argues that compliance with the statute requires giving the insured the

opportunity to pay the premium within the ten-day time period and keep the policy

in force. Thus, the Insurance Company argues that the language quoted above

from Person and Drury cannot be squared with the purpose of the statute, is dicta,

and must bend to the statute itself. In support, the Insurance Company cites

Southern Ins. Co. v. Walker, 361 S.E.2d 502, 503 (Ga. Ct. App. 1987) (“The fact

that the notice of cancellation left open the possibility of reinstatement of the

policy did not invalidate that cancellation notice.”). If Appellants’ position were

correct, the Insurance Company argues, any cancellation notice that complies with

the ten-day statutory period will be ineffective, rendering cancellation impossible

as a practical matter.

Because we perceive no clear, controlling precedent in the decisions of the

Georgia courts, and because the predictability of the law is particularly important in

this area, we certify the following question of law to the Supreme Court of Georgia

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for instructions:

IS A NOTICE OF CANCELLATION, PROPERLY GIVEN AFTER

THE PREMIUM IS PAST DUE, INEFFECTIVE BECAUSE IT

PROVIDES AN OPPORTUNITY FOR THE INSURED TO KEEP

THE POLICY IN FORCE BY PAYING THE PAST-DUE PREMIUM

WITHIN THE STATUTORY TEN-DAY PERIOD?

In certifying this question, we do not intend the particular phrasing of it to

limit the court in its consideration of the problem posed by the case. In order to

assist the court’s consideration of the case, the entire record, along with the briefs

of the parties, shall be transmitted to the court.

QUESTION CERTIFIED.

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