[ DO NOT PUBLISH ]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 19

- 14025 Non

- Argument Calendar

________________________ D.C. Docket No. 5:18

- cv - 00044

- TES

JULIANNA BRANNEN, as Trustee of the 1996 C. Bishop Brannen III Irrevocable Trust, a.k.a. Jill, SARAH

- AVERILL BRANNEN, CLINTON B. BRANNEN, IV, Plaintiff s - Appell ants ,

v ersus JACKSON NATIONAL LIFE INSURANCE COMPANY , Defendant

- Appell ee .

________________________ Appe al from the United States District Court for the Middle District of Georgia

________________________ (April 23, 2 020) Case: 19-14025 Date Filed: 04/23/2020 Page: 1 of 82 Before JORDAN , NEWSOM , and LUCK, Circuit Judges.
PER CURIAM: The appellants sought to recover under the decedent’s life insurance policy. The insur ance company denied coverage because the policy lapsed due to non

payment prior to the decedent’s death. The appellants sued, arguing that the insurance company waived the lapse by accepting belated payment after the decedent died and retaining the f unds for twelve days

. Alternatively, they argued that the insurance company accepted an offer to enter into a new contract by endorsing and depositing the ir belated premium check. The district court rejected both arguments and granted summary judgment in favor of the insurance company

. We affirm. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Bishop Brannen died on July 24, 2016. Prior to his death, Mr. Brannen failed to pay the premium on his life insurance policy, causing it to lapse. Hoping to

recover the policy’s $2.3 million in death benefits, Mr. Brannen ’s children and ex

wife (the Brannens ) hired an attorney to send a demand to the insur ance company . Am ong other things, the demand package included a two

- page letter, a claim form,
Mr. Brannen ’s death certificate, and a check for the past

- due premium. The insurance company received the demand package on March 15, 2017, at its corporate headquarters. The insurance company ’s mailroom endorsed the check

Case: 19-14025 Date Filed: 04/23/2020 Page: 2 of 83 and scanned the contents of the package into a n internal database. The scanned documents were then reviewed by the indexing department, which routed the documents to the proper departments. After indexing , the demand letter and check went to the new business department. A n employee noticed that the policy number written on the check corresponded to a policy owned by the insurance company but administered by a third

- party. The check was then forwarded to another address for further processing. The check was deposited on March 22, 2017. On March 27, 2017, an employee of the third

- party administrator determined
that the premium payment could not be applied towards Mr. Brannen ’s policy because the policy had lapsed. The employee directed that the payment be refunded. The same day, the insurance company printed a refund check for the premium payment and mailed it to the Brannens’ attorney

. The insurance company declined the Brannens’ later re quests for it to pay the policy’s death benefits.
T he Brannens sued the insurance company in the Middle District of Georgia

. The insurance company moved for summary judgment, which the district court granted in full. In relevant part, the district court rejected the Brannens’ argument that the insurance company waived the policy lapse by accepting the Brannens’ belated premium payment and retaining the funds for twelve days. The district court

Case: 19-14025 Date Filed: 04/23/2020 Page: 3 of 84 likewise rejected the argument that the insurance company accepted an offer to enter into a new contract by endorsing and depositing the Br a nn e ns’ premium check

. STANDARD OF REVIEW

“ We review a grant of sum mary judgment de novo, applying the same standard as the district court. ” Newcomb v. Spring Creek Cooler Inc. , 926 F.3d 709, 713 (11th Cir. 2019)

. That is, we must “ view all of the evidence in a light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor .” Id. (quoting Liese v. Indian River Cty. Hosp. Dist. , 701 F.3d 334, 342 (11th Cir. 2012)). Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). DISCUSSION
The Br a nn e ns argue that the district court erred in two respects: (1) by concluding there was no dispute of material fact that the insurance company did not waive the policy lapse; and (2) by concluding there was no dispute of material fact
that the insurance company did not enter into a new contract by endorsing and depositing the Br a nn e ns’ check

. We address each argument in turn. Waiver of the policy lapse Mr. Brannen’s insurance policy lapsed because he failed to pay his premium on time. The Brannens argue that the insurance company waived the lapse by

Case: 19-14025 Date Filed: 04/23/2020 Page: 4 of 85 knowingly depositing their check for the missing payment and retaining the funds for twelve days. Georgia courts 1 have long recognized that an insur ance company ’s knowing retention of a belated premium payment can serve as an implied waiver of a lapse for non

- payment. See, e.g. , Ga. Masonic Mut. Life Ins. Co. v. Gibson , 52 Ga. 640, 642

– 43 (187 4). Specifically, they have held that “[i] f an insurance company receives, accepts, and retains past

- due premiums which are paid subsequent to the due date and expiration of the grace period, it renews the contract and waives the forfeiture for non

- paymen ts provided the acceptance is unconditional and the facts are known. ” Clark v. United Ins. Co. of Am. , 404 S.E.2d 149, 152 (Ga. Ct. App. 1991) (quoting Causey v. Gulf Life Ins. Co. , 8 S.E.2d 535, 536

– 37 (Ga. Ct. App. 1940)). We have likewise applied the se principles in determining whether a waiver
occurred under Georgia law

. See Rutland v. State Farm Mut. Auto. Ins. Co. , 426 F. App’x 771 (11th Cir. 2011) (unpublished). In Rutland , the plaintiff was involved in a car accident after her auto insurance policy had lapsed due to non

- payment. Id. at 773. The plaintiff attempted to report the accident to her insurance agent, and an

1 The parties do not dispute that Georgia’s substantive law applies in this diversity case. Cf. also Am. Family Life Assurance Co. of Columbus v. U.S. Fire Co. , 885 F.2d 826, 830 (11th Cir. 1989) (“ In diversity cases, the choice

- of

- law rules of the foru m state determine which state ’ s substantive law applies.

. . . Under Georgia choice

- of

- law rules, interpretation of insurance contracts is governed by the law of the place of making. Insurance contracts are considered made at the place where the contract is delivered. ” (citations omitted)); Am. Compl. at ¶ 7 ( alleging that

“ the life insurance policy in controversy was issued and delivered in Dooly County, Georgia”).

Case: 19-14025 Date Filed: 04/23/2020 Page: 5 of 86 employee in the agent’s office told the plaintiff that the policy had lapsed. Id. The employee allegedly told the plaintiff that if she paid the past

- due premium, her policy would be reinstated and the insurer would provide retroactive coverage for the accident

. Id. After the plaintiff made the belated payment, the same employee again confirmed that the plaintiff would receive retroactive coverage. Id.
The insurer accepted the belated payment. See id. Later , the insurer sent a letter to the plaintiff informing her that it would not provide retroactive coverage for the accident. Id. About six weeks after accepting the belated payment , the insurer issued a refund to the plaintiff

. See id. at 774. On appeal, the plaintiff relied on Clark to argue that the insurer waived the policy lapse. Id. We held that Clark wa s distinguishable because , there , the insurer never refunded the late payment. Id. Thus , we held that the plaintiff’s insurer “did not ‘retain’ a past

- due premium as was the case in Clark .” Id. Although the insurer held on to the plaintiff ’s late payment for “at least six weeks,” we explained that “six weeks was not unreasonably long because [the insurer ] needed first to determine that [the plaintiff ’s] payment was properly tendered.” Id. Similarly , we conclude that the insurance company d id not improperly “retain” the Brannens’ belated payment so as to waive the policy lapse. The insurance company held on to the payment for only twelve days. Despite the letter and other materials that accompanied the check, twelve days was not unreasonab ly

Case: 19-14025 Date Filed: 04/23/2020 Page: 6 of 87 long for the insurance company to determine whether the payment was properly tendered.
We haven’t overlooked Horace Mann Life Insurance Co. v. Lunsford , 324 S.E.2d 808 (Ga. Ct. App. 1984) . There, too, the court concluded that an insurer waived a lapse in part because it retained a belated payment. But Horace Mann is plainly distinguishable because the insurance company retained the belated premium for almost two months

— significantly longer than here and in Rutland

— and the Georgia court relied on additional facts to conclude that there was a waiver

. T he court noted the insurance company twice extended the grace period for payments
and sent inconsistent notices as to whether a lapse had occurred . Its “whole pattern of collecting premiums . . . ind icate[d] a waiver of the due date.” Id. at 8 11

. There is no such pattern evidence in this case. Accordingly , the district court did not err in granting summary judgment on the Brannens’ waiver argument. Entry into a new contract The Br a nn e ns next argue that “ [ b ] y cashing [their] check with full knowledge of its purpose, [ the insurance company ] created and breached a binding contract.” More specifically, they argue that their “demand was a clear offer to [the insurance company] to accept the late premium in exchange for death benefits, forgoing bad faith litigation, and a report to the insurance commissioner.” They claim that “[n] o

Case: 19-14025 Date Filed: 04/23/2020 Page: 7 of 88 reasonable insurer could read the letter and package as anything other than a request for death benefits in exch ange for the past

- due premium and forgoing litigation. ” However, the Georgia Court of Appeals has held that “[t] he acceptance of premiums after default does not create a new contract, but merely continues the binding effect of the original policy .” Uni on Cent. Life Ins. Co. v. Merrell , 184 S.E. 655, 657 (Ga. Ct. App. 1936). To hold otherwise would mean that acceptance of belated premiums could result both in a revival of a lapsed contract and the formation of a new contract. Taken even further, it wou ld mean that any insured could send a letter and check to their insurer and then bind the insurer to whatever “offer” the letter purportedly described when the check is deposited

. Neither of these outcomes comports with our understanding of Georgia contract law. CONCLUSION The district court correctly concluded there was no dispute of material fact that the insurance company did not waive the policy lapse and that the insurance company did not accept an offer to enter into a new contract. Accordingly, the district court did not err in granting summary judgment in the insurance company’s favor. AFFIRMED.

Case: 19-14025 Date Filed: 04/23/2020 Page: 8 of 8