IN THE MAGISTRATE COURT OF COBB COUNTY
STATE OF GEORGIA
ROSEMARY KILKENNY,
Plaintiff,
v.
MAURICE DAUGHTRY,
Defendant.
CASE NO.: 21-J-10157
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
i. 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.
ii. 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: __ Signature
MAURICE DAUGHTRY
- 4 –
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]
Signature
MAURICE DAUGHTRY
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