FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 9, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-10979

Non-Argument Calendar

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D.C. Docket No. 07-00502-CV-BBM-1

GWENDOLYN MORGAN,

Plaintiff-Appellant,

versus

PACIFIC SPECIALITY INSURANCE COMPANY,

Defendant-Appellee.

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Appeal from the United States District Court

for the Northern District of Georgia

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(September 9, 2008)

Before MARCUS, WILSON and COX, Circuit Judges.

PER CURIAM:

The Plaintiff Gwendolyn Morgan’s house burned down. She sought insurance

proceeds from Pacific Speciality Insurance Company (“PSIC”), which had issued her

an insurance policy insuring her home against fire and other perils. PSIC denied
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liability and rescinded the policy on the ground that Morgan’s insurance application

contained a misrepresentation. Morgan sued PSIC. The district court granted

summary judgment for PSIC on the ground that PSIC was entitled to rescind the

contract because of the misrepresentation on the application. Additionally, the

district court held that PSIC was not estopped to deny liability because Morgan

signed the application containing the misrepresentation. Morgan appeals. We

conclude that there is evidence in the record from which a jury could find that PSIC

is estopped to deny liability on the insurance contract, and accordingly we reverse the

district court’s grant of summary judgment. 

Although Morgan’s brief is styled as presenting three separate issues on appeal,

only one issue is properly before us. Morgan waived the issue of whether her

expert’s testimony was properly excluded by failing to present any argument on the

issue in her appellate brief. Morgan presents only one argument in the remainder of

her brief, though styling it as two separate issues. Accordingly, the only issue on

appeal is whether evidence in the record that it was PSIC’s agent who wrote the

misrepresentation on the application after having been told by Morgan that she did

not know the answer to the question is sufficient to support a finding that PSIC is

estopped to deny liability based on the misrepresentation. 
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Morgan argues that summary judgment is inappropriate because the record

contains sufficient evidence to support a finding that PSIC is estopped to deny

coverage based on the misrepresentation at issue since it was PSIC’s insurance agent

who inserted the misrepresentation. Specifically, Morgan states that PSIC’s agent

filled out the insurance application after having asked her the questions over the

telephone. (R. 2-62 at 27.) When PSIC’s agent asked Morgan Question 17 on the

application, “Does the dwelling have copper wiring and circuit breakers?” she told

the agent that she could not answer the question. (Id. at 55-56.) PSIC’s agent

responded “Don’t worry about it, I can handle it, I will take care of it.” (Id. at 56.)

When Morgan signed the application, she had relied on PSIC’s agent to take the

answer down correctly and did not go over the application with PSIC’s agent. (Id.

at 58, 60-61.) Morgan argues that summary judgment is inappropriate because these

facts provide the evidentiary support needed to find that PSIC is estopped to deny

coverage based on the misrepresentation in the answer to Question 17. 

Under Georgia law, an insurance company “is considered estopped to deny

liability on the insurance contract, where the insured has given correct answers to

questions in the insurance policy application posed by the insurance agent and the

insurance agent, either through fraud or negligence, has filled in the answer

incorrectly.” Liberty Nat’l Life Ins. Co. v. Houk, 281 S.E.2d 583, 585 (Ga. 1981).
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See Patriot General Ins. Co. v. Millis, 506 S.E.2d 145, 147-148 (Ga. Ct. App. 1998)

(“If either party must suffer from an insurance agent’s mistake, it must be the

insurance company, [her] principal.” quoting Stillson v. Prudential Ins. Co., 42 S.E.2d

121, 124 (Ga. 1947)). Estoppel applies even if the insured, after having given correct

answers to the insurance agent, signs an application containing false answers inserted

by the insurance agent. Houk, 281 S.E.2d at 584. 

This statement of the law differs slightly from that used by the district court in

its order entering summary judgment for PSIC. The district court relied on Bourne

v. Balboa Ins. Co., 240 S.E.2d 261 (Ga. Ct. App. 1977), for the proposition that

estoppel is only available when an insured signs an application with a

misrepresentation if the insured was prevented through fraud or artifice from reading

the document. But the Supreme Court of Georgia decided in Houk that estoppel is

available even if an insured merely fails to notice the misrepresentation negligently

inserted by an insurance agent into an application the insured signs. Georgia courts

have noted the variance between the rule in Houk and the rule in Bourne and hold that

Houk provides the correct statement of the law on this issue. Davis v. Browning, 311

S.E.2d 168, 168 (Ga. 1984) (Marshall, J., concurring specially). 

PSIC argues that there is no evidence to support a finding of estoppel for two

reasons. First, PSIC argues that an agent must knowingly enter a false answer in
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order for estoppel to apply. Since Morgan stated that she did not know the answer

to Question 17 and told PSIC’s agent as much, PSIC contends that there is no

evidence that its agent knew the “yes” answer he filled in to Question 17 was false.

The Supreme Court of Georgia stated in Houk, however, that an agent’s entry of a

false answer through negligence is enough to estop the insurance company to deny

liability on the basis of the false answer. 281 S.E.2d at 585. Viewing the evidence

in the light most favorable to Morgan, we hold that there is a material question of fact

as to whether Morgan answered Question 17 correctly and PSIC’s agent, either

intentionally or negligently, filled in a false answer.

Second, PSIC argues that because it did not prevent Morgan from reading the

policy before signing it, estoppel is not applicable here. However, as noted above,

this is an incorrect understanding of Georgia law. 

Because there is a question of fact as to whether Morgan answered Question

17 correctly and PSIC’s agent then, either intentionally or negligently, filled in a false

answer, and because such a finding would support a conclusion that PSIC is estopped

to deny coverage based on the misrepresentation in Question 17, PSIC is not entitled

to summary judgment. 

For the reasons stated above, we reverse the grant of summary judgment in

favor of PSIC and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.