EMC Property & Casualty Insurance Company v. Shivam Trading, Inc. et al

Filing 52

ORDER denying Thrift's 30 Motion for Summary Judgment, and granting EMC's 36 Motion for Summary Judgment. Signed by Judge Lisa G. Wood on 5/16/2017. (csr)

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Sn ?[9niteli States! Siisftritt Court tor tl^e ^outl^em Biotrtct ot 4leorgtu Wavttoisi BtbiOton EMPLOYERS MUTUAL CASUALTY CO., Plaintiff, No. V. SHIVAM TRADING, INC.; INVESTMENT CORP.; 5:16-CV-58 SIDHI & VICKI THRIFT; Defendants. ORDER Taking a cue from The Who, the parties in this insurance declaratory-judgment question: Are You Policy"), dispute seek ^^Who are ^you'?" (MCA Records the answer to a simple See The Who, Who Are You, on Who 1978) . In the policy at issue {^'the that pronoun clearly does not refer to additional insureds, nor does the Policy extend coverage to all liability relating to Policy's unambiguous these the reasons, judgment motion 30, A0 72A as insured's meaning explained brought will be DENIED, Casualty Co. (Rev. 8/82) named (^^EMC") , by be premises. undercut more fully Defendant Nor by estoppel. below, Vicki can the Thrift, the For summary dkt. no. while that of Plaintiff Employers Mutual dkt. no. 36, will be GRANTED. Background Thrift claims to have slipped and fallen at a convenience store whose landlord is Sidhi Investment Corp. ("'Sidhi") whose operator is Shivam Trading Co. {^'Shivam") . 1 6, 18.^ Dkt. No. 30- Sidhi was held not liable by the Georgia Court of Appeals. Sidhi Inv. Corp. v. Thrift, 785 S.E.2d 552 (Ga. Ct. App. 2016), reconsideration den^d Apr. 5, 2016. claim against Shivam is Georgia courts. Sidhi is 17. still making the its way through named insured on an EMC insurance covering the convenience store. Shivam is an additional insured. Policy has three provisions relevant here. preamble, ^your' Id. the policy Dkt. No. Id. at 6. 1-1 The The first is the which says that throughout the Policy, "^you' and refer to the Named Insured shown in the Declarations." at 36. coverage. at 37. Thrift's Dkt. No. 36-3 SI 26. (^'the Policy") at and Then, there are two provisions One is entitled, ^^Who Is An Insured." relating to Dkt. No. 1-2 It begins, "If you are designated in the Declarations as," then explains what entities and individuals are covered based on what sort of entity is designated. if a trust is designated, both the trust "with respect to their duties," are insureds. Id. and For example, its trustees, Id. at 38. Lastly, there is an endorsement for additional insureds: ^ Those parties are not litigating the motions currently before the Court 2 Any person(s) Schedule with is or also respect "property organization(s) an to additional liability damage" or shown "personal ''bodily and the but insured, for in only injury", advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf in the performance of your ongoing operations or in connection with your premises owned by or rented to you. Dkt. No. 1-5 at 2 (emphases added). EMC seeks declaratory judgment "as to whether the policy provides or Dkt. No. 1 ^ 19. 17, 2017. Policy's excludes Dkt. Vicki Thrift's claims." No. 30. she by In addition to arguing from the relied an on insurance certain agent, statements made Richard Herschel Thrift's motion met a dueling one from EMC. Lovett. 36. for Thrift moved for summary judgment on March language, contemporaneously coverage Dkt. No. The motions are fully briefed and ripe for disposition. Dkt. Nos. 41-44, 46, 48, 51. LEGAL STANDARD Summary judgment is due if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." 56(a). Fed. R. Civ. P. "Cross motions for summary judgment do not change the standard," but one's being denied does not always imply that the other should be granted. V. Gaffin Indus. Serv., at *6 (M.D. Fla. Mar. 7, White Springs Aqric. Chem., Inc., No. 2014) 3:ll-CV-998, Inc. 2014 WL 905577, (citation omitted). The party claiming insurance coverage exists ^'ha[s] the burden of proving [this] under the terms of the policy." Chix V. Ga. Farm Bureau Ins. Co., 258 S.E.2d 208, 209 {Ga. Ct. App. 1979) . Insurance is contractual, contract construction ^'is a question of law for the court," and it ^'is particularly well suited for disposition by summary judgment" unless there is an ambiguity. O.C.G.A. § 13-2-1; Allstate Ins. Harkleroad, No. 409CV011, 2010 WL 2076941, at *3 24, 2010); Tucker Maters. Supply, sis no Inc., (Ga.), 535 S.E.2d 858, ambiguity ^^unless v. (S.D. Ga. May Inc. v. Devito Contracting & 859 and Co. (Ga. Ct. App. until an 2000). application There of the pertinent rules of construction" leaves lingering uncertainty. Auto-Owners App. Ins. 1988). Co. v. ''[I]t Barnes, is the 373 S.E.2d 217, understanding 219 of (Ga. the Ct. average policyholder which is to be accepted as a court's guide to the meaning of words," with ^'ambiguities and uncertainties resolved against the insurance company." Ins. Co. 2010) V. Keyingham (citations construction . none, in Staton, fact, . Inv., LLC, omitted) . 702 But . . . Fidelity Nat'l Title S.E.2d "the 851, rule 853 of (Ga. liberal . cannot be used to create an ambiguity where exists." 685 S.E.2d 263, 266 State (Ga. Farm Mut. 2009). Auto. Ins. Co. v. DISCUSSION EMC's motion for summary judgment will be granted, while Thrift's will be denied. The Policy unambiguously only covers wrongdoing by Sidhi as the named insured, additional insured, and it does not Shivam as an not extend coverage to all liability relating to Sidhi's premises. The unambiguously limited Policy cannot be expanded through estoppel. I. THE POLICY UNAMBIGUOUSLY ONLY COVERS SIDHI'S WRONGDOING. The Policy unambiguously only covers wrongdoing by Sidhi, not by Shivam. and the Its ^'you's" and ''your's" signify Sidhi alone, additional-insureds endorsement does not extend coverage over all liability related to Sidhi's premises. A. "You" and "Your" Refer Only to Sidhi. "You" and Sidhi alone. 'your' "your" in the Policy unambiguously According to the Policy's preamble, "'you' refer to the Named Insured," which is Sidhi. 1-1 at 36. refer to and Dkt. No. Thrift does not identify any point at which the Policy uses either word otherwise. "Who Is An Insured" does use "you" to identify who fits under coverage for individuals, organizations, and trusts. additional-insureds "[a]ny person(s) or Dkt. endorsement No. 1-2 at 37-38. swaps organization(s) out shown "you" in in the But the favor of Schedule." ^ The endorsement specifically says such an entity "is . . . an additional insured," No. in 1-5 at a 2. distinct, added This defeats subsection Thrift's to "Who Is An Insured." Dkt. argument that "you" and "your" as Id. at 37 (emphasis added); Dkt. No. 1-5 at 2. An Insured," like the rest of the Policy, Thus, ^^Who Is only uses ^"you" to refer to the named insured. The Court must read ''you" and "your" in the additionalinsured endorsement the same way. See Ga. Ins. Co. V. Wilkerson, 549 S.E.2d 740, 742 ("The policy states that 'you' on the declaration page. . . Farm Bureau Mut. (Ga. Ct. App. 2001) refers to the . 'named insured' One simply need look at the declaration page to see who is listed as the named insured."). Shivam, then, is only covered for "[Sidhi's] acts or omissions or the acts or omissions of those acting on in the performance connection with [Sidhi]." so there Thrift, Dkt. is 785 den'd Apr. 5, SI V. used in coverage. (Ga. that owned See by Sidhi Ct. App. 2016), "'you' and 'your' or or in rented to Inv. Corp. v. reconsideration 28. This Liberty Mut. is not other subsections must such entities to have coverage. Co., be so, 234 read at to least [ [ ] and Shivam [ ]." per logic, Nat'l Union Fire Ins. Co. Ins. are referring to Shivam [ ] or to both Sidhi academic commentary. Pa. operations None of these conditions holds, to whether they are just to Sidhi behalf 2016. claims ambiguous as 30-1 Policy ongoing premises 1-5 at 2. S.E.2d 552 Thrift No. [Sidhi's] [Sidhi's] No. no of [Sidhi's] F. or Dkt. precedent, and of Pittsburgh, App'x 190, include ] 192-94 & n.2 additional insureds Dkt. No. 30-2 at 5; Dkt. No. 43 at 9. for (5th Cir. 2007) (holding ''you" and "your" to unambiguously refer only to named insured, given policy akin to that here); Nationwide Mut. Ins. Co. v. Architectural Glazing Sys., Inc., No. 1:13-CV-01069, 2015 WL 11438555, at *4 & n.6, *11-12 (N.D. Ga. Aug. 25, 40:26-27 2015) (same); Couch on Insurance (3d ed.) §§ ("[C]overage for an additional insured is typically limited to liability arising out of the named insured's work or operations. Thus, additional insured status does not provide coverage to an additional insured for the additional insured's own work or operations. * * * * '[Y]ou' and 'your' . . . are typically defined as referring to the named insured . . an . . Accordingly, additional Wilkerson, 'you' insured . and . 549 S.E.2d at 'your' . 742 ." do not encompass (footnote . . omitted)); cf. ("Although Eric may be insured because he is an authorized driver of the insured vehicle, is not the named insured. Cases holding unconvincing. Casualty Co., distinguished because the including 243 policy both organization Ashland are 1232, from precedent at named defined insureds and as" Line 1241 issue qualifying distinguishable Pipe F.3d itself he There is no ambiguity."). otherwise Marathon . such. (distinguishing Page v. Mountain W. LLC (10th "any to and 2001), EMC here at Farm Bureau Mut. "your" as person other Id. Maryland Cir. favorable "you" v. or or 1241-42 Ins. Co., 2 P.3d 506 (Wyo. 2000)); accord Architects, Ltd. v. Liberty Mut. {7th Cir. 1997); but see Frisco Ins. Co., Nat^l Union Serena Sturm 126 F. 3d 886, Fire Ins. 892 Co. of Pittsburgh, Pa., 234 F. App'x at 192-94 & n.2 (^^tak[ing] as a given that" ^'you" and '"your" referred only to named insured, given Marathon Ashland-style definition); Alexander v. Fire Ins, 2006) of Hartford, (same). 454 F.3d 214, By contrast, the 226-27 & n.9 Policy here Nat^l (3d Cir. restricts the definition of ""you" and ^^your" to only ''the Named Insured." Dkt. No. Ltd. V. 1-1 at 36; see also Associated Elec. Am. Int^ 1 Grp., Utah 2015) issue Inc., 166 F. Supp. & Gas Ins. 3d 1248, Serv. 1254 (D. (distinguishing Marathon Ashland because policy at "clearly define[d] the terms 'you' and 'your'" as "refer[ring] to a named insured."). Marathon Ashland is further distinguishable because the endorsement there did not "relegate [additional insureds] to a lesser status." 243 F.3d at 1241. coverage to Sidhi's wrongdoing. First 01052, Mercury Co. v. 2016 WL 7494286, filed Jan. where Ins. 19 & Feb. endorsement The one here cabins their Dkt. No. Cincinnati at *7 2, 2017 (D.N.M. United Residential, LLC, No. Fire & Cas. 06-CV-00037, 8 Ins. Co., Sept. 27, No. 1:14-CV- 2016), appeal (distinguishing Marathon Ashland "specifie[d] whose covered."); 1-5 at 2; see also acts Co. or v. omissions Boulder 2010 WL 420046, at are Plaza *9 (D. Colo. Feb. 1, (same); of. Supply, 2010), Inc., aff^d, 633 First Mercury Ins. (discussing 48 F. recent Supp. trend F.3d Co. 3d y. 158, of 951 (10th Cir. 2011) Shawmut Woodworking & 173-75 narrowing (D. Conn. coverage 2014) to those injuries proximately caused by named insured). As 78 for F.3d Wyner v. 752 (1st North American Specialty Cir. Circuit—including 1996), Wyner^ s a later author. unambiguous and to panel Judge that 'Mt]he mainstream of opinions . refer solely . to . Insurance of the Co., First Torruella—observed has held the ^you' to be individual or organization identified as the ^Named Insured.'" Wright-Ryan Constr., of Can., 411, Inc. (1st Cir. v. AIG 2011) . Ins. Co. v. (Wise. Ct. General App. F.3d 417-18 This Court prefers to swim that mainstream over Wyner's non-binding eddy. Greene 647 Casualty 1997). The Court similarly disregards Co. The of Wisconsin, Policy's unambiguously refer only to Sidhi, 576 '"you's" N.W.2d and 56 ^'your's" so coverage does not extend to any sole wrongdoing by Shivam. B. Coverage Unambiguously Does Not Extend Liability Relating to Sidhi's Premises. to All Thrift also claims that there is ambiguity as to whether Shivam is property. so. covered Dkt. Nos. for all injuries 30-2 at 10-11, relating 43 at 13-14. to Sidhi's This is not The endorsement is unambiguous once logic and grammar are taken into grammatical (^'The account. O.C.G.A. construction cardinal rule usually of person(s) Schedule is or also 13-2-2(6) govern construction intention of the parties."). Any §§ . is . . to rules of 13-2-3 ascertain the It reads: organization(s) an (^^The additional shown insured, with respect to liability for "property damage" or "personal in but the only ''bodily injury", and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf in the performance of your ongoing operations or in connection with your premises owned by or rented to you. Dkt. No. 1-5 at The 2. Court sees four possible ways of relating the clauses, as illustrated using the bolded marks below, but only the first is logically and grammatically sound: 1. Any person(s) or organization(s) shown in the Schedule is also an additional insured, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, of by your your acts ongoing or omissions operations or [(A)] [(B)] in the performance in connection with your premises owned by you. This construction is unambiguously correct, as it is both in keeping with what could logically be the intention of Sidhi, Shivam, and EMC and grammatically permissible. 2. Any person(s) or organization(s) shown in the Schedule is also an additional insured, but only with respect to liability for injury [(A)] caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf in the performance of your ongoing operations or [(B)] in connection with your premises owned by or rented to you. 10 This construction corresponding connection telling. verb. with What your clause could count premises"? every occurrence construction Supply, must Inc., 48 be F. insurance policies, limitless; injury "but would for' ever practical matter, The in our ruled as without ""injury an Court has a in no way Supp. interconnected world, out. See 3d at of occurred. . . far down cause in fact is . . additional insured, the . ." & in context of no crime or Therefore, limits must be established. how this Woodworking the creation of this world, Any person (s) or organization(s) an (noting, that "" [p]hilosophically, have determining also Shawmut 174 individuals will be held liable . 3. (B) Given that insurance is not meant to insure against any and drawn leaves as a Lines must be causal continuum (citations omitted)). shown in the Schedule is but only with respect to liability for injury caused, in whole or in part, [(A)] by your acts or omissions or the acts or omissions of those acting on your behalf in the performance of your ongoing operations or [(B)] in connection with your premises owned by or rented to you. This leaves clause (B) without any subject. there, but not allocation in causer? Nothing of legal significance. C.J.) R. Co., 162 with responsibility. ""caused Island connection of N.E. 99, your 101 premises" What mean 1928) always could without See Palsqraf v. (N.Y. (""The question of liability is 11 Causation is (per a Long Cardozo, anterior to the question of the measure [it]."). 4. of the consequences that go with This construction must also be rejected. Any person(s) or organization(s) shown in the Schedule is also an additional insured, but only with respect to liability for injury caused, in whole or in part, by [(A)] your acts or omissions or [ (B) ] the acts or omissions of those acting on your behalf ongoing operations or in the performance of in connection with your your premises owned by or rented to you. This final construction Neither party urges it. Sidhi, Shivam, operations cannot be adopted, either. Nor is there any apparent reason why and EMC would have intended for references to and premises to relate only to Sidhi's collaborators and not to Sidhi i t s e l f . With only one construction of the endorsement satisfying both logic and grammar, meaning. The it is the endorsement's unambiguous endorsement unambiguously does not extend coverage to all liability pertaining to Sidhi's premises. Policy's coverage, then, unambiguously does not reach The to whatever liability Shivam may have to Thrift. II. LOVETT CANNOT BE USED TO ESTOP EMC. Thrift also goes estoppel beyond argument the based Policy's on four raising an Lovett. Dkt. No. 30-2 at 11-13; Dkt. No. 51 at 7-8.^ corners, representations by This is ^ Thrift also mentions constructive fraud. Dkt. No. 43 at 15. She does not support this or raise it in her answer. See generally id.; Dkt. Nos. 5, 50. As "[i]t is not this Court's role to piece together a party's argument from . . . various fragments"—much less a single one— 12 improper. Although an insurer can existence of an insurance contract, be Co. 1339, of Am. 1349-50 Owners Ins. v. 3. {N.D. Guar. Ga. Ins. 2004); as to the Georgia law bars estoppel as to an unambiguous policy's meaning. Ins. estopped Co. Sumitomo Marine & Fire of Ga., Home Co., 300 S.E.2d 139 {Ga. Fire & Gas. Co., 486 S.E.2d 71, 76 337 Mater., F. Inc. 1983); Sapp v. (Ga. Ct. App. Supp. v. 2d Auto State Farm 1997) (^MA]ny assertions by [the dual agent] that the policy gave defendants . . . full coverage . beyond . what . would not extend additional coverage was given by the unambiguous wording of the policy."); Int'l Indem. (""The coverage estoppel."). Co., of 417 a S.E.2d policy 365, clear, plain, Lumber Transp., 367 cannot be (Ga. Ct. Inc. App. extended by and v. 1992) . . . Thrift's argument fails. CONCLUSION The Policy only covers Sidhi's wrongdoing, not Shivam's or all liability relating to Sidhi's premises—even if Lovett said something judgment, 30, dkt. to the contrary. no. 36, is GRANTED, EMC s motion for while Thrift's, summary dkt. no. is DENIED. nothing more will be said as to this. Hayes v. Lowers Home Improvement, LLC, No. CV414-005, 2016 WL 5660340, at *1 (S.D. Ga. Sept. 28, 2016). 13 so ORDERED, this 16th day of May, 2017. LISA TODBEY WOOD,l DISTRICT JUDGE UNITED STATES SOUTHERN A0 72A (Rev. 8/82) 14 DISTRICT COURT DISTRICT OF GEORGIA

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