| IN THE MAGISTRATE COURT OF COBB COUNTY | ||
| STATE OF GEORGIA | ||
|
MOTION TO DISMISS
Pursuant to O.C.G.A. § 9-11-12(b)(6), Defendant moves to dismiss Plaintiff’s Complaint against Defendant. Defendant moves for dismissal of the Complaint on the ground that the Plaintiff’s policy provides for a cancellation at no fee. Plaintiff’s Complaint therefore raises no claim upon which relief can be granted. In support of this Motion, Defendant asserts as follows:
FACTUAL BACKGROUND
On or about March 26, 2021, Defendant purchased two new trucks. Defendant then asked Plaintiff for quotes for the new vehicles. Defendant did not want to accept any coverage without knowing the amount of the money required to pay for the coverage. The insurance agent stated she would give Defendant the Certificate of Insurance to get the tags for the vehicles. However, Defendant still needed to know the monthly price for all vehicles covered.
On or about April 21, 2021, the agent finally gave Defendant the numbers upon which Defendant informed the agent of Defendant’s intention to cancel the policy.
On or about April 28, 2021, Defendant mailed Plaintiff a letter containing Defendant’s notice of cancellation.
Plaintiff’s Cancellation Policy expressly states that the insured may cancel the policy by mailing the notice of cancellation. (Exhibit- Plaintiff’s Cancellation Policy). Even if the Insured had already paid the premium, the Plaintiff’s cancellation policy states that the Plaintiff would refund any paid premium upon cancellation.
Consequently, on or about November 17, 2021, Plaintiff initiated the instant action against Defendant alleging that Defendant owes Plaintiff $12,425.04 for coverage Plaintiff provided to the Defendant’s Company.
LEGAL ARGUMENT
- Legal Standard
Pursuant to O.C.G.A. § 9-11-12(b)(6), a claim may be dismissed where it fails to state a claim upon which relief may be granted. “The main consideration of such a motion to dismiss is whether, under the assumed set of facts, a right to some form of legal relief would exist. If material allegations are missing from a pleading, then the pleading fails.” Cumberland Contractors, Inc. v. State Bank & Trust Co., 327 Ga. App. 121, 126 (2014).
Construing the allegations of the Complaint in the light most favorable to Plaintiffs, the case should be dismissed.
- Plaintiff’s actions are against its own Cancellation Policy
Insurance contracts are governed by the same rules of construction or interpretation, for the purpose of ascertaining the intention of the parties, as apply to other contracts. Code § 56-815; Golden v. National Life Accident Insurance Co., 189 Ga. 79 (2), 87 (5 S.E.2d 198, 125 A.L.R. 838). Where the terms and conditions of an insurance policy are unambiguous, the court must declare the contract as made by the parties. Penn Mutual Life Insurance Co. v. Marshall, 49 Ga. App. 287 (1) (175 S.E. 412). Where the meaning is plain and obvious, it should be treated as literally provided therein. Daniel v. Jefferson Standard Life Insurance Co., 52 Ga. App. 620 (2) (184 S.E. 366). Genone v. Citizens Ins. Co. of N. J., 207 Ga. 83, 86 (1) (60 S.E.2d 125). Courts have further held that where the cancellation provision of the policy was clear and unambiguous, a cancellation is effective if a party mails a notice of cancellation pursuant to the said provision.
In the instant action, Plaintiff’s Cancellation Policy expressly states that the insured may cancel the policy by mailing the notice of cancellation. The Policy further provides that the Plaintiff would refund the any paid premium upon cancellation. Defendant therefore relied on the Cancellation provision to send the Notice of Cancellation to the Plaintiff. Defendant therefore challenges Plaintiff’s allegations in the Complaint and avers that there is not issue of material fact therein.
WHEREFORE, Defendant requests this Court to dismiss this action. Defendant further requests all additional relief the Court may deem proper.
Respectfully submitted,
DATED: __________
CERTIFICATE OF MAILING
Defendant affirms that a copy of the above was served upon the Plaintiff to this action by electronic and/or U.S. mail to her respective address as stated below:
[ENTER ADDRESS]
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