Auto-Owners Insurance Company v. Benjamin Hugh Johnson
CourtCourt of Appeals for the Eleventh Circuit
Date FiledOctober 8, 2026
Docket24-13530
StatusUnpublished
📰 News Coverage: Read the LAWS.com news report on this case
Full Opinion
USCA11 Case: 24-13530 Document: 32-1 Date Filed: 10/08/2026 Page: 1 of 15
NOT FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-13530
____________________
AUTO-OWNERS INSURANCE COMPANY,
OWNERS INSURANCE COMPANY,
Plaintiffs-Appellees,
versus
BENJAMIN HUGH JOHNSON,
MARGARET LILES JOHNSON,
Defendants-Appellants,
ROLAND T. DISINGER, et al.,
Defendants.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 3:23-cv-00179-TCB
____________________
USCA11 Case: 24-13530 Document: 32-1 Date Filed: 10/08/2026 Page: 2 of 15
2 Opinion of the Court 24-13530
Before BRANCH, GRANT, Circuit Judges, and DAMIAN,∗ District
Judge.
PER CURIAM:
Benjamin and Margaret Johnson (the “Johnsons”) are
Roland and Nancy Disinger’s (the “Disingers”) neighbors. The
Johnsons allegedly left a pile of branches and other natural detritus
on the Disingers’ property following some yard work along the
neighbors’ shared property line. The presence of the pile led to an
acrimonious dispute between the two families, including lengthy
arguments, complaints to the city, and a lawyers’ letter from the
Disingers threatening to sue the Johnsons if the pile was not dealt
with to their satisfaction. Ultimately, the Disingers followed
through on their threats and sued the Johnsons in state court.
All this transpired unbeknownst to the Johnsons’ home
insurer, Auto-Owners Insurance Company (“Auto-Owners”). The
Johnsons never notified Auto-Owners of their litigious dispute with
the Disingers. Instead, Auto-Owners learned of it from the
Disingers at the end of March 2023: three months after the
Disingers had sued the Johnsons, and four months after the
Disingers had formally threatened to sue.
While providing the Johnsons with a contingent defense in
state court subject to a reservation of rights, Auto-Owners sued the
Johnsons in diversity in the district court below. It sought a
∗ Honorable Melissa J. Damian, United States District Judge for the Southern
District of Florida, sitting by designation.
USCA11 Case: 24-13530 Document: 32-1 Date Filed: 10/08/2026 Page: 3 of 15
24-13530 Opinion of the Court 3
declaratory judgment that it had no duty to defend or indemnify
the Johnsons for any liability connected to their underlying dispute
with the Disingers. The district court ultimately agreed and
granted Auto-Owners summary judgment because the Johnsons’
failure to comply with the prompt notice provisions of the
insurance contracts—which were mandatory conditions precedent
to coverage—meant the Johnsons were not entitled to any
coverage.
The Johnsons now appeal, but not on the merits of the
district court’s ruling—which they did not contest below. Instead,
they argue that the district court erred in determining that it had
subject matter jurisdiction for two reasons: the case was unripe and
it did not satisfy the amount in controversy required for diversity
jurisdiction. We decline the Johnsons’ invitation to reverse the
district court. A live controversy persisted at all stages of the case
below, and Auto-Owners’s allegations handily met the amount in
controversy threshold. Accordingly, we affirm.
I. BACKGROUND
The Johnsons and the Disingers live next door to each other
in Carrollton, GA. Auto-Owners insures the Johnsons’ property
under two insurance contracts: a homeowner’s policy and an
umbrella policy. In relevant part, the homeowner’s policy contains
the following notice provision: “In the event of bodily injury,
property damage, or personal injury, the insured must . . . notify
[Auto-Owners] as soon as possible . . . [and] promptly send [Auto-
USCA11 Case: 24-13530 Document: 32-1 Date Filed: 10/08/2026 Page: 4 of 15
4 Opinion of the Court 24-13530
Owners] any legal papers received relating to any claim or suit.”
The umbrella policy contains a similar notice provision:
When an occurrence likely to involve [Auto-Owners]
takes place, the insured shall notify [Auto-Owners] as
soon as practicable. . . . If claim is made or suit is
brought, we must be advised promptly. All papers in
connection with claims or suits must be sent to [Auto-
Owners] without delay.
Sometime in late September or early October 2022, the
Johnsons began harvesting trees and other vegetation near the
boundary between the Johnsons’ and Disingers’ properties. The
Disingers allege that the Johnsons, without the Disingers’ consent,
left the remains of the harvested trees and vegetation in a large pile
(the “pile of branches.”) 1 At some point—the parties dispute
whether it was during or after the cutting of the trees and
vegetation—the Disingers had the property line surveyed and
marked by tape and flags, allegedly revealing that the pile of
branches was left in part or in full on their side of the neighbors’
shared property line. The Disingers allege that the location of the
pile of branches is also “within [] a flood zone and a sanitary sewer
easement.”
1 Although the Disingers’ complaint claims that it was one large pile, the quote
that the Johnsons obtained for the removal of the detritus discusses “remov[al]
[of] 4 piles of vegetation, brush and tree debris.” Ultimately, whether there is
one large pile or several smaller piles, the issue of the presence of the debris
on the Disingers’ property is, at bottom, the same.
USCA11 Case: 24-13530 Document: 32-1 Date Filed: 10/08/2026 Page: 5 of 15
24-13530 Opinion of the Court 5
The Johnsons and Disingers began feuding over the pile of
branches in October 2022, arguing over whether the pile was on
the Disingers’ property, and if so, how to properly remove it.
Among other things, the Disingers complained to the City of
Carrollton, which on October 26, 2022 sent the Johnsons a letter
formally instructing them that, “as soon as possible,” they
“shall . . . dispose[] of [the pile of branches] in a manner satisfactory
to the [Disingers].” The cost to remove the pile of branches was
quoted as approximately $2,000. The Johnsons did not inform
Auto-Owners of the city’s letter.
Eventually, the Disingers hired a lawyer, and on November
11, 2022, they sent a demand letter to the Johnsons concerning the
pile of branches, threatening to sue if the Johnsons did not reply to
the letter by November 25, 2022. The Johnsons did not promptly
notify Auto-Owners of the letter or the looming litigation, but
instead had their personal attorney reply to the Disingers’ letter.
Ultimately, on December 21, 2022, the Disingers sued the
Johnsons in state court, seeking (1) injunctive relief;
(2) compensatory and punitive damages for nuisance, negligence,
trespass, conversion, and failure to comply with Georgia insurance
disclosure law; and (3) attorney’s fees (the “State Court Action”).
The Disingers sought compensatory damages and attorneys’ fees,
as well as over $250,000 in punitive damages. The Johnsons did
not notify Auto-Owners of the State Court Action.
On March 31, 2023, Auto-Owners learned of the State Court
Action from the Disingers themselves. Under the terms of its
USCA11 Case: 24-13530 Document: 32-1 Date Filed: 10/08/2026 Page: 6 of 15
6 Opinion of the Court 24-13530
insurance contracts with the Johnsons, Auto-Owners began
providing the Johnsons with a defense to the State Court Action,
subject to a reservation of rights. On September 19, 2023, Auto-
Owners filed this action in the federal district court, based in
diversity jurisdiction, seeking a declaration that they had no duty
to defend or indemnify the Johnsons against the State Court Action
(the “Federal Court Action”). Auto-Owners filed alongside its
complaint a sworn certification from its claims adjuster, stating that
Auto-Owners expected its cost of defending the Johnsons from the
State Court Action would exceed $82,000. 2
After limited discovery in the Federal Court Action, the
Johnsons moved to dismiss the lawsuit, and Auto-Owners moved
for summary judgment. The Johnsons sought dismissal based on
Auto-Owners’ alleged failure to satisfy the amount in controversy
requirement for diversity jurisdiction. Auto-Owners sought
summary judgment because, in relevant part, the Johnsons had
failed to give timely notice of the State Court Action and, as timely
notice was a condition precedent to coverage, Auto-Owners did
not have to provide them either a defense or indemnification. The
Johnsons did not oppose Auto-Owners’s motion for summary
judgment on the merits, instead simply arguing that an insurer’s
declaratory judgment action involving a duty to indemnify and a
2 At oral argument before this Court, counsel for Auto-Owners represented
that, at the time the district court granted summary judgment, Auto-Owners
had incurred over $90,000 in costs to defend the Johnsons in the State Court
Action.
USCA11 Case: 24-13530 Document: 32-1 Date Filed: 10/08/2026 Page: 7 of 15
24-13530 Opinion of the Court 7
duty to defend is unripe until the underlying lawsuit has ended. In
this case, as the State Court Action was ongoing, the Johnsons
argued that the Federal Court Action was unripe.
Before the district court ruled on these motions, on
September 10, 2024, the Disingers voluntarily dismissed the State
Court Action without prejudice in state court. Pursuant to
O.C.G.A §§ 9-2-61 and 9-11-41, the terms of the voluntary dismissal
stated that the Disingers had six months from the date the dismissal
was filed to recommence the action “as if originally filed as the
same day of the Complaint dated December 21, 2022.”
The Johnsons notified the district court of the dismissal of
the State Court Action on September 25, 2024. As a result, the
Johnsons argued that the Federal Court Action “is now moot and
should therefore be dismissed.” The Disingers, however, had
refiled the State Court Action in state court the day before, on
September 24, 2024. The record does not indicate that the district
court was aware that the Disingers had refiled the State Court
Action in state court when it ruled on the parties’ competing
motions.
On September 27, 2024, the district court denied the
Johnsons’ motion to dismiss and granted Auto-Owners’s motion
for summary judgment. As to the motion to dismiss, the court
concluded that Auto-Owners’s cost of defending the lawsuit, along
with a potential loss liability of over $100,000 (due to the costs the
Disingers claimed in their complaint related to the State Court
Action), satisfied the amount in controversy requirement.
USCA11 Case: 24-13530 Document: 32-1 Date Filed: 10/08/2026 Page: 8 of 15
8 Opinion of the Court 24-13530
Addressing Auto-Owners’s motion for summary judgment,
the district court held that it could determine whether Auto-
Owners had a duty to defend the Johnsons while the underlying
lawsuit was pending by comparing the allegations of the complaint
to the policy provisions. And, per the district court, “if there is no
duty to defend, then there is no duty to indemnify.” As for whether
the case had been rendered non-justiciable 3 because of the dismissal
of the State Court Action, the district court held that “[b]ecause the
dismissal was without prejudice, the ability to refile the case is
sufficient to establish a controversy such that this court may still
rule on the pending motions.”
Turning to the merits, the district court “interpret[ed] the
Johnsons’ silence on the issue [of notice] as a lack of opposition to
that argument.”4 The court nevertheless undertook a full merits
analysis, concluding that, because “the Johnsons failed to comply
with the notice requirements under both policies, . . . [Auto-
3 Although the Johnsons argued in their notice to the district court of the
dismissal of the State Court Action that the Federal Court Action had thus
been rendered moot, the portion of the district court’s order addressing the
effect of the dismissal of the underlying lawsuit does not clarify the specific
justiciability doctrine the court was applying.
4 The Johnsons do not attempt to contest the merits on appeal either. As such,
we consider them to have abandoned any argument on the correctness of the
district court’s ruling on the notice issue. Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 680 (11th Cir. 2014) (holding that an appellant abandons an issue
by failing to raise it on appeal).
USCA11 Case: 24-13530 Document: 32-1 Date Filed: 10/08/2026 Page: 9 of 15
24-13530 Opinion of the Court 9
Owners had] no duty to defend or indemnify the Johnsons in the
underlying suit.”
The Johnsons timely appealed.
II. DISCUSSION
A. Amount in Controversy
The Johnsons argue that the object of the litigation is the
removal of the pile of branches, which would cost $2,000. 5 They
argue that this $2,000 is the amount in controversy; any other
damages are indeterminate at best. Auto-Owners responds by
arguing that the cost of an insurer to defend their insured must be
factored into the calculation of the amount in controversy, and on
that basis alone Auto-Owners’s claims in the Federal Court Action
satisfy the amount in controversy requirement. The Johnsons’
argument falls short.
A federal court has subject matter jurisdiction based on
diversity of citizenship if there is complete diversity among the
parties and the amount in controversy exceeds $75,000.00. 28
U.S.C. § 1332; Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1059 (11th
Cir. 2010). When an insurer seeks a declaratory judgment
concerning its duty to defend and indemnify an insured, “[t]he
pecuniary value of the obligation to defend the separate lawsuit is
properly considered in determining the existence of the
jurisdictional amount.” Stonewall Ins. Co. v. Lopez, 544 F.2d 198, 199
5 “We review de novo questions concerning our subject matter jurisdiction.”
Lozman v. City of Riviera Beach, 119 F.4th 913, 916 (11th Cir. 2024).
USCA11 Case: 24-13530 Document: 32-1 Date Filed: 10/08/2026 Page: 10 of 15
10 Opinion of the Court 24-13530
(5th Cir. 1976). 6 This rule makes sense: unlike in an ordinary case
where a party’s cost of defense is his own, an insurer’s cost of
providing its insured a defense is part of its overall cost of coverage.
Here, Auto-Owners submitted sworn testimony that its cost to
defend the Johnsons would exceed $82,000. Thus, Auto-Owners
satisfied the amount in controversy.
B. Ripeness
We break this section into two parts. First, we explain why
the Federal Court Action was a ripe controversy when it was filed
even though the underlying State Court Action had not yet
resolved the issue of liability. Second, we explain why the Federal
Court Action continued to be a ripe controversy despite the
Disingers’ voluntary dismissal without prejudice of the State Court
Action.
In the Federal Court Action, Auto-Owners sought a
declaratory judgment that it had neither a duty to defend the
Johnsons against the State Court Action nor a duty to indemnify
the Johnsons for any related loss. As “an insurer’s duty to pay and
its duty to defend are separate and independent obligations,” we
treat them separately in this analysis, starting with the duty to
defend. Penn-Am. Ins. Co. v. Disabled Am. Veterans, Inc., 268 Ga. 564,
565 (1997).
6 Decisions of the former Fifth Circuit issued before the close of business on
September 30, 1981, are binding precedent on this Court. Bonner v. City of
Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981).
USCA11 Case: 24-13530 Document: 32-1 Date Filed: 10/08/2026 Page: 11 of 15
24-13530 Opinion of the Court 11
The portion of the Federal Court Action concerning the
duty to defend was ripe when it was filed even though the State
Court Action remained unresolved. An insurer must provide its
insured a defense—thus incurring the cost of doing so—as soon as
a lawsuit is filed, rather than after liability for the underlying loss is
determined, because “[i]f the facts as alleged in the complaint even
arguably bring the occurrence within the policy’s coverage, the
insurer has a duty to defend the action.” Hoover v. Maxum Indem.
Co., 291 Ga. 402, 408 (2012). As such, once a lawsuit is filed against
an insured, the insurer and its insured have “adverse legal interests,
of sufficient immediacy and reality to warrant the issuance of a
declaratory judgment.” Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S.
270, 273 (1941) (citation omitted); Atlanta Gas Light Co. v. Aetna Cas.
& Sur. Co., 68 F.3d 409, 414 (11th Cir. 1995). Thus, once the State
Court Action was filed against the Johnsons, Auto-Owners was
able to ask the district court to compare the policy against the
underlying complaint and determine whether it has a duty to
defend its insured, and the district court did not err in doing so.
The question is what effect does a determination that an
insurer has no duty to defend have on the separate and generally
unripe question of whether there is a duty to indemnify?7 The
answer lies in the rule that “a court’s determination that the insurer
7 The duty to indemnify is ordinarily unripe until the underlying lawsuit which
gives rise to the insurer’s potential liability for coverage—here, the State Court
Action—is resolved. Allstate Ins. Co. v. Emps. Liab. Assurance Corp., 445 F.2d
1278, 1281 (5th Cir. 1971); Edwards v. Sharkey, 747 F.2d 684, 686 (11th Cir. 1984)
(citing Allstate Ins. Co.).
USCA11 Case: 24-13530 Document: 32-1 Date Filed: 10/08/2026 Page: 12 of 15
12 Opinion of the Court 24-13530
has no duty to defend requires a finding that there is no duty to
indemnify,” Trailer Bridge, Inc. v. Ill. Nat’l Ins. Co., 657 F.3d 1135,
1146 (11th Cir. 2011) (per curiam) (alteration omitted) (emphasis
added) (quotation omitted), because “[t]o excuse the duty to
defend the petition must unambiguously exclude coverage under
the policy.” Penn-Am. Ins. Co., 268 Ga. at 565.
Put differently, the duty to defend turns on a determination
that the allegations in the complaint, true or not, state a claim that
arguably would trigger coverage. Penn-Am. Ins. Co., 268 Ga. at 565.
The duty to indemnify, in contrast, turns on a determination that
the allegations in the complaint are in fact true. Aetna Cas. & Sur.
Co. v. Brooks, 218 Ga. 593, 597 (1963) (“The insurer’s obligation to
pay arises only after liability is established against the insured.”).
Thus, if a court determines that there is no duty to defend, then
necessarily the underlying complaint does not state a claim which
could even arguably trigger the duty to indemnify. At that point,
a court need not delay the inevitable: it may at once enter
judgment declaring that there is no duty to indemnify. Trailer
Bridge, Inc., 657 F.3d at 1146. A determination that an insurer has
no duty to defend thus acts as a narrow exception to the rule that
declaratory judgment as to the duty to indemnify is unripe until the
underlying lawsuit is decided.
Given our analysis above, the district court did not err in
adjudicating that portion of Auto-Owners’s motion for summary
judgment concerning its duty to indemnify the Johnsons. Once the
district court had determined that Auto-Owners had no duty to
USCA11 Case: 24-13530 Document: 32-1 Date Filed: 10/08/2026 Page: 13 of 15
24-13530 Opinion of the Court 13
defend the Johnsons, the issue of Auto-Owners’s duty to indemnify
was ripe.
We turn now to analyzing the effect of the voluntary
dismissal of the State Court Action on the ripeness of the Federal
Court Action. The Johnsons argue that the dismissal of the State
Court Action renders the Federal Court Action unripe because “the
insurer’s duty cannot be determined when the underlying lawsuit
has been dismissed.” Auto-Owners responds by arguing that “a
justiciable controversy existed at all times relevant because the
originally filed lawsuit was only dismissed without prejudice, so the
Disingers preserved their right to refile their claims against the
Johnsons,” and in any event a justiciable controversy over
insurance coverage can exist even in the absence of an underlying
lawsuit.
We conclude that the district court did not err in
determining that a continuing controversy existed between Auto-
Owners and the Johnsons even though the State Court Action,
upon which the Federal Court Action had initially been premised,
had been dismissed without prejudice.
An action for declaratory judgment may be brought
preemptively, in anticipation of another’s claims. Fed. Reserve Bank
of Atlanta v. Thomas, 220 F.3d 1235, 1246 n.11 (11th Cir. 2000).
Thus, the presence or absence of the State Court Action is not
decisive here. Our analysis is instead focused on analyzing the
underlying controversy that is the subject of the Federal Court
Action. In the context of that frame, “the question . . . is whether
USCA11 Case: 24-13530 Document: 32-1 Date Filed: 10/08/2026 Page: 14 of 15
14 Opinion of the Court 24-13530
the facts alleged, under all the circumstances, show that there is a
substantial controversy, between parties having adverse legal
interests, of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment.” Md. Cas. Co., 312 U.S. at 273;
Atlanta Gas Light Co., 68 F.3d at 414.
There is, unambiguously, a sufficiently substantial
controversy between Auto-Owners and the Johnsons to ripen the
Federal Court Action. While the Disingers had dismissed their first
complaint, that dismissal was without prejudice and did not resolve
the underlying dispute between the neighbors over the Johnsons’
alleged damage to the Disingers’ property. Nor did it resolve the
fundamental infirmity in the Johnsons’ entitlement to a defense
(and thus indemnification) from Auto-Owners: the Johnsons’
failure to comply with the notice provisions of the insurance
contracts with Auto-Owners, an infirmity which the Johnsons
conceded and which equally affects any lawsuit that the Disingers
may bring concerning the piles of branches they allegedly left on
the Disingers’ property. 8 And, finally, the dismissal of the State
Court Action expressly stated that the Disingers had six months to
refile their lawsuit, which they did two days before the district
8 Per the district court, “[a] reasonable and prudent insured would believe the
potential for liability arose when the City of Carrollton sent the letter on
October 26. If not by then, the Johnsons were certainly aware of more than
just the potential for liability when they received the cease-and-desist letter on
November 11. Yet [Auto-Owners] did not receive notice until March 31.”
USCA11 Case: 24-13530 Document: 32-1 Date Filed: 10/08/2026 Page: 15 of 15
24-13530 Opinion of the Court 15
court issued its judgment in this case below. 9 Thus, judgment in
the Federal Court Action would resolve a live issue of real,
immediate concern to both parties: whether Auto-Owners had a
duty to defend the Johnsons against litigation concerning the
damage they had allegedly caused to the Disingers’ property. See
Md. Cas. Co., 312 U.S. at 273; Atlanta Gas Light Co., 68 F.3d at 414.
The district court did not err in determining that the Federal Court
Action remained a ripe controversy. 10
III. CONCLUSION
For the reasons explained above, the district court’s
judgment is affirmed.
AFFIRMED.
9 This appeal only concerns the allegations in the complaint from the State
Court Action. As such, we do not opine on the effect that our ruling may have
on Auto-Owners’ duties to cover the Johnsons in relation to any additional
allegations in the Disingers’ new state court lawsuit.
10 As noted above, the Johnsons’ notice to the district court of the dismissal of
the State Court Action argued that the Federal Court Action had thus been
rendered moot. Given our independent obligation to assure ourselves of our
own jurisdiction, Belleri v. United States, 712 F.3d 543, 547 (11th Cir. 2013), we
note here that, for the same reason that this case remained ripe after the
dismissal of the State Court Action, it also was not moot: There remained a
live, continuing controversy between the parties who had adverse legal
interests. See City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000) (explaining that
a case becomes “moot” when there is no longer a live controversy and the
parties lack a legally cognizable interest in the outcome.)