Bickerstaff Imports, Inc. d/b/a Southlake Mitsubishi “Southlake”, a car dealership, appeals from the trial court’s order granting summary judgment to its insurer, Sentry Select Insurance Company “Sentry”, in Southlake’s action to recover proceeds under a policy covering commercial crimes, including employee theft. Because the trial court did not err in ruling that Southlake’s action against Sentry was barred by the two-year limitation period contained in the insurance contract, we affirm. To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 c. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.1 Once the moving party meets this burden, the nonmoving party may not rest on its pleadings, but must instead come forth with evidence establishing a triable issue.2 On appellate review of a ruling granting summary judgment, we review the evidence de novo to determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the moving party was entitled to judgment as a matter of law.3 Viewed in the light most favorable to Southlake as the non-moving party, the record reflects that Southlake suffered certain losses resulting from a fraudulent scheme perpetrated by one of its salesmen, Pasteur Alvin Camp, beginning in August 2001. Southlake sought to recover these losses under a commercial crime policy issued by Sentry. The policy provided that “you Southlake may not bring any legal action against us Sentry involving loss . . . unless brought within 2 years from the date you discover the loss.” In February 2003 Southlake submitted a proof of loss to Sentry, in which it named Camp as the employee practicing “fraudulent activity.” Southlake gave various dates for discovery of the loss, the latest of which was December 12, 2002.
On February 5, 2003, Sentry rejected the claim, on the ground that “nothing has been shown” to indicate that Camp’s illegal activities were a “direct theft loss” within the scope of the policy. Sentry reiterated its denial of the claim in a letter dated December 29, 2003, from John Reddington at Sentry to Robert McKnight, Southlake’s attorney. Reddington requested that Southlake provide Sentry with any “other information” it might have indicating that the losses were covered; and Reddington stated that another Sentry employee “will contact you McKnight on this shortly as we discussed.” The record reflects that Sentry initiated no further contact with Southlake with regard to this claim until after December 31, 2005.
