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)

Sn

?[9niteli States! Siisftritt Court

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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