Appellate Opinion Reaffirms that Insurance Coverage Defenses such as Policy Exclusions are Not Subject to Waiver Under Georgia Law


courthouse; court; court of appeals

By Jessica Samford

The United States Court of Appeals for the Eleventh Circuit, in a per curiam though unpublished opinion, has once again had the opportunity to apply the Supreme Court of Georgia’s holdings in the 2012 decision Hoover v. Maxum Indemnity Company, 291 Ga. 402 (2012).  

The Eleventh Circuit’s newest opinion in Century Communities of Georgia, LLC v. Selective Way Insurance Company conducted a de novo review of the United States District Court for the Northern District of Georgia’s summary judgment order on coverage claims brought by Century as an additional insured under the commercial general liability policy issued by Selective, alleging “bad faith” liability for not defending an underlying property damage suit. No. 19-14697, 2023 WL 2237303 (11th Cir. Feb. 27, 2023).  

The appellate court affirmed the district court’s grant of summary judgment in Selective’s favor under Georgia’s “right for any reason” doctrine: “We may affirm on any ground supported by the record, regardless of whether that ground was relied upon or even considered below.” Id. at *2. 

Selective had not listed the policy’s pollution exclusion in its letter denying coverage. Century, therefore, argued waiver based on Hoover’s holding that an insurer “cannot both deny a claim outright and attempt to reserve the right to assert a different defense in the future” and that a “continued failure to fairly inform [the insured] of its intention to raise a defense related to untimely notice” results in waiver. Id. The district court interpreted Hoover to mean that “the failure to include a defense in a denial letter does not render it automatically waived, but rather leaves the question of whether to consider the defense open for future litigation,” then “held that Selective did not waive the Pollution Exclusion because Century had sufficient notice of it.” Id. at *3. 

On appeal, the district court’s order was affirmed, but for a different reason. The appellate court relied on its decision in AEGIS Electric & Gas International Services Limited v. ECI Management LLC, 967 F.3d 1216 (11th Cir. 2020). There, the Eleventh Circuit explained that waiver under Hoover is limited to “policy defenses” such as untimely notice conditions because “there is no indication in Hoover that the Georgia Supreme Court intended to upend the longstanding rule that an insurer cannot waive coverage defenses.” Id. Accordingly, “coverage defenses,” which are defenses based on coverage provisions defining what is included or excluded from coverage, such as a pollution exclusion, are not subject to waiver. 

Applying the “right for any reason” doctrine to the record evidence, the Eleventh Circuit offers clarity for the decision in Hoover

For more information, please contact Jessica Samford at or your local FMG attorney.