Grand China Buffett & Grill, Inc. et al v. State Auto Property and Casualty Co. et al

Filing 31

MEMORANDUM OPINION AND ORDER GRANTING STATE AUTOS MOTION FOR SUMMARY JUDGMENT 25 AND DISMISSING THIS CASE WITH PREJUDICE: The Court GRANTS State Autos motion for summary judgment on the coverage issues 25 ; DECLARES that the allegations in the un derlying complaint do not trigger the Subject Policys coverage for bodily injury or personal injury; 3) DECLARES that State Auto has no duty to defend or indemnify Grand China and Chen on the allegations in the underlying complaint; DISMISSES AS MOOT Grand Chinas bifurcated bad faithclaims; and DISMISSES this case WITH PREJUDICE. The Court DIRECTS the Clerk of Court to transmit copies of this Order to counsel of record and to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 5/16/17. (jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
GRAND CHINA BUFFETT & GRILL, INC.;
QI FENG CHEN; and SCOTT ULLOM,
Plaintiffs,
v.

//

CIVIL ACTION NO. 1:16CV159
(Judge Keeley)

STATE AUTO PROPERTY & CASUALTY
COMPANY,
Defendant.
MEMORANDUM OPINION AND ORDER GRANTING STATE AUTO’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 25]
AND DISMISSING THIS CASE WITH PREJUDICE
Plaintiffs Qi Feng Chen (“Chen”) and Grand China Buffet &
Grill, Inc. (“Grand China”), filed a complaint in the Circuit Court
of Harrison County, West Virginia, on June 17, 2016 (Dkt. No. 1-1),
which, in part, sought a declaration that defendant State Auto
Property & Casualty Co. (“State Auto”) has a duty to defend and
indemnify them against a wrongful exclusion action filed in state
court by Scott Ullom (“Ullom”) on July 21, 2015 (“underlying
complaint”) (Dkt. No. 1-1 at 23). State Auto removed the case to
this Court on July 22, 2016 (Dkt. No. 1). Now pending is State
Auto’s motion for summary judgment on the coverage issues in the
case (Dkt. No. 25). For the reasons that follow, the Court GRANTS
State Auto’s motion.

GRAND CHINA, ET AL. v. STATE AUTO

1:16CV159

MEMORANDUM OPINION AND ORDER GRANTING STATE AUTO’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 25]
AND DISMISSING THIS CASE WITH PREJUDICE
I. BACKGROUND
A.

The Underlying Complaint
On July 21, 2015, Ullom filed the underlying complaint in the

Circuit Court of Harrison County, West Virginia, seeking to hold
Chen

liable

in

his

capacity

as

“Director,

Incorporator,

and

President” of Grand China for violations of the West Virginia Human
Rights Act (“WVHRA”), as well as “all applicable West Virginia
Statutes” and “Constitutional Laws” (Dkt. No. 1-1 at 25). The
underlying complaint alleges that Ullom has hearing and other
physical impairments that require him to use a service dog,
prosthetic foot, and, at times, a wheelchair. Id. at 24.
Ullom claims that, on July 23, 2013, he and his friend were
refused service1 at Grand China by an “oriental looking” individual
believed to be the manager, Stanley Sun (“Sun”). Id. at 23. Sun
allegedly would not allow Ullom to bring his service dog into the
restaurant, even after Ullom advised that the dog was not a pet but

1

In the scheduling conference and its order denying the
plaintiffs’ motion to remand, the Court stated “that Ullom and his
friend were evicted from Grand China” (Dkt. No. 24 at 2) (emphasis
added). This language was drawn directly from the plaintiffs’
complaint and does not reflect the Court’s opinion on the coverage
implications of the term “evicted,” including its plain and
ordinary meaning in the context of the State Auto policy at issue.
2

GRAND CHINA, ET AL. v. STATE AUTO

1:16CV159

MEMORANDUM OPINION AND ORDER GRANTING STATE AUTO’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 25]
AND DISMISSING THIS CASE WITH PREJUDICE
provided assistance. Id. at 23-24. The underlying complaint claims
that Sun “frantically wave[d] both hands above his head and in
front of his face,” and yelled “the dog cannot come in, the dog
cannot come in.” Id. at 23. After exiting Grand China, Ullom dialed
911. The Clarksburg City Police arrived shortly thereafter to
investigate the incident, but advised Ullom that Chen was “afraid
of what other customers would say about a dog in his restaurant,”
and that he had the “right to refuse service to anyone.” Id. at 24.
The underlying complaint seeks “a significant amount” of
damages under the WVHRA, both to accommodate Ullom and to punish
Chen and Grand China for their “intentional acts of wrong doing.”
Id.

at

25.

It

also

seeks

damages

for

emotional

distress,

embarrassment, and humiliation in an amount that will “fairly
compensate [Ullom] for the intentional acts of wrong doing.” Id.
B.

Procedural Background
When Chen placed Grand China’s commercial general liability

insurance

company,

State

Auto,

on

notice

of

the

underlying

complaint, the carrier at first provided a defense. See id. at 8.
After deposing Ullom, however, State Auto decided that he had not
incurred a “bodily injury” covered under Grand China’s policy (“the

3

GRAND CHINA, ET AL. v. STATE AUTO

1:16CV159

MEMORANDUM OPINION AND ORDER GRANTING STATE AUTO’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 25]
AND DISMISSING THIS CASE WITH PREJUDICE
Subject Policy”), and withdrew any further defense to Grand China
and Chen. Id. at 9.
As a result of State Auto’s decision to withdraw its defense,
Grand China and Chen2 filed the instant action against State Auto
and Ullom in the Circuit Court of Harrison County on June 17, 2016.
See id. at 6. The complaint seeks the following declarations: (1)
“that the Subject Policy does provide them with bodily injury
liability coverage for some or all” of Ullom’s claims in the
underlying complaint; (2) “that the Subject Policy does provide
them with personal and advertising injury liability coverage for
some or all” of Ullom’s claims in the underlying complaint; and (3)
that State Auto’s reservation of rights was improperly and untimely
issued and that State Auto is barred by waiver and estoppel from
avoiding

coverage

obligations,

or

alternatively,

that

the

reservation of rights is the sole statement of the basis for
coverage avoidance. Id. at 12-14. In addition to the declaratory
claims, the complaint seeks damages for breach of contract, common
law bad faith, a Hayseeds claim, and violations of the West
Virginia Unfair Trade Practices Act. Id. at 15-21.

2

In the remainder of this order, plaintiffs Grand China and
Chen will be referred to collectively as “Grand China.”
4

GRAND CHINA, ET AL. v. STATE AUTO

1:16CV159

MEMORANDUM OPINION AND ORDER GRANTING STATE AUTO’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 25]
AND DISMISSING THIS CASE WITH PREJUDICE
State Auto removed the case to this Court on July 22, 2016
(Dkt. No. 1 at 2). On July 29, 2016, State Auto answered the
complaint, and filed a counterclaim and cross claim for declaratory
relief against Grand China and Ullom (Dkt. No. 4). State Auto seeks
declarations that Ullom’s claims in the underlying complaint are
not covered by the Subject Policy, and that it has no duty to
defend or indemnify Grand China. Id. at 18.
On August 22, 2016, Grand China moved to remand the case to
the Circuit Court of Harrison County based on lack of complete
diversity (Dkt. No. 7). State Auto opposed the motion and requested
that the Court realign Ullom as a plaintiff to create complete
diversity (Dkt. No. 10). At a scheduling conference on September
29, 2016, the Court denied Grand China’s motion to remand, granted
State Auto’s motion to realign Ullom as a plaintiff, bifurcated the
case, and scheduled deadlines for dispositive motions on the
coverage issues raised in the case. On November 8, 2016, State Auto
moved for summary judgment on the coverage issues (Dkt. No. 25).
That motion is fully briefed and ripe for review.
II. STANDARD OF REVIEW
Summary
documents,

judgment

is

electronically

appropriate
stored
5

where

the

information,

“depositions,
affidavits

or

GRAND CHINA, ET AL. v. STATE AUTO

1:16CV159

MEMORANDUM OPINION AND ORDER GRANTING STATE AUTO’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 25]
AND DISMISSING THIS CASE WITH PREJUDICE
declarations,

stipulations

.

.

.

,

admissions,

interrogatory

answers, or other materials” establish that “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a), (c)(1)(A).
When ruling on a motion for summary judgment, the Court reviews all
the evidence “in the light most favorable” to the nonmoving party.
Providence Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846,
850 (4th Cir. 2000). The Court must avoid weighing the evidence or
determining

its

truth

and

limit

its

inquiry

solely

to

a

determination of whether genuine issues of triable fact exist.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of informing the
Court

of

the

basis

for

the

motion

and

of

establishing

the

nonexistence of genuine issues of fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the moving party has made the
necessary showing, the non-moving party “must set forth specific
facts showing that there is a genuine issue for trial.” Anderson,
477 U.S. at 256 (internal quotation marks and citation omitted).
The “mere existence of a scintilla of evidence” favoring the nonmoving party will not prevent the entry of summary judgment; the

6

GRAND CHINA, ET AL. v. STATE AUTO

1:16CV159

MEMORANDUM OPINION AND ORDER GRANTING STATE AUTO’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 25]
AND DISMISSING THIS CASE WITH PREJUDICE
evidence

must

be

such

that

a

rational

trier

of

fact

could

reasonably find for the nonmoving party. Id. at 248–52.
III. APPLICABLE LAW
“A federal court exercising diversity jurisdiction is obliged
to apply the substantive law of the state in which it sits.” Volvo
Const. Equip. N. Am. v. CLM Equip. Co., Inc., 386 F.3d 581, 599-600
(4th Cir. 2004) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79
(1938)). The Court must therefore apply West Virginia law. See
Beckley Mech., Inc. v. Erie Ins. & Cas. Co., 374 F. App’x 381, 383
n.1 (4th Cir. 2010) (unpublished decision) (citing Erie, 304 U.S.
64). In West Virginia, “[d]etermination of the proper coverage of
an insurance contract when the facts are not in dispute is a
question of law.” Syl. Pt. 1, Tennant v. Smallwood, 568 S.E.2d 10
(W. Va. 2002).
Liability insurance policies establish two main duties on the
part of the insurer, the duty to defend and the duty to indemnify.
See, e.g., Aetna Cas. & Sur. Co. v. Pitrolo, 342 S.E.2d 156, 160
(W. Va. 1986); Donnelly v. Transp. Ins. Co., 589 F.2d 761, 765 (4th
Cir. 1978). An insurer’s duty to defend is normally triggered when
“the

allegations

in

the

plaintiff’s

complaint

are

reasonably

susceptible of an interpretation that the claim may be covered by
7

GRAND CHINA, ET AL. v. STATE AUTO

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MEMORANDUM OPINION AND ORDER GRANTING STATE AUTO’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 25]
AND DISMISSING THIS CASE WITH PREJUDICE
the terms of the insurance policy,” but “[t]here is no requirement
that

the

facts

alleged

in

the

complaint

specifically

and

unequivocally make out a claim within the coverage.” Pitrolo, 342
S.E.2d at 160; see also Syl. Pt. 2, Farmers & Mechs. Mut. Ins. Co.
of W. Va. v. Cook, 557 S.E.2d 801, 802 (W. Va. 2001). If any of the
claims against the insured might trigger coverage, the insurer must
defend against all the claims. See Horace Mann Ins. Co. v. Leeber,
376 S.E.2d 581, 584 (W. Va. 1988) (citing Donnelly, 589 F.2d at
765). Nevertheless, the insurer need not provide a defense if the
claims are “entirely foreign to the risk insured against.” Air
Force Ass’n v. Phoenix Ins. Co., 896 F.2d 545 (4th Cir. 1990)
(unpublished table decision) (citing Donnelly, 589 F.2d at 765).
The specific wording of an insurance policy determines whether
it provides coverage for a particular claim. See Beckley Mech., 374
F. App’x at 383; Cherrington v. Erie Ins. Prop. & Cas. Co., 745
S.E.2d 508, 524 (W. Va. 2013). Indeed, “[l]anguage in an insurance
policy should be given its plain, ordinary meaning.” Syl. Pt. 8,
Cherrington, 745 S.E.2d 508 (internal quotations and citations
omitted). Courts should not endeavor to interpret policy provisions
unless they are unclear or ambiguous. Id. Instead, courts must give
terms and provisions their meaning in the “plain, ordinary and
8

GRAND CHINA, ET AL. v. STATE AUTO

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MEMORANDUM OPINION AND ORDER GRANTING STATE AUTO’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 25]
AND DISMISSING THIS CASE WITH PREJUDICE
popular sense, not in a strained or philosophical sense.” Polan v.
Travelers Ins. Co., 192 S.E.2d 481, 484 (W. Va. 1972); see also
Syl. Pt. 9, Cherrington, 745 S.E.2d 508.
A term is ambiguous if it “is reasonably susceptible of two
different meanings or is of such doubtful meaning that reasonable
minds might be uncertain or disagree as to its meaning.” Allstate
Ins.

Co.

v.

Ashley,

37

F.3d

1492,

at

*2

(4th

Cir.

1994)

(unpublished table decision) (quoting Syl. Pt. 1, Surbaugh v.
Stonewall Cas. Co., 283 S.E.2d 859, 860 (W. Va. 1981)). Courts
should resolve any ambiguity in favor of the insured. See Jenkins
v. State Farm Mut. Auto. Ins. Co., 632 S.E.2d 346, 350 (W. Va.
2006) (quoting Leeber, 376 S.E.2d at 584).
IV. DISCUSSION
Grand China’s complaint seeks a declaration that State Auto is
obligated to defend it against Ullom’s allegations because the
underlying complaint alleges a “bodily injury” or “personal and
advertising injury” within the meaning of the Subject Policy.3

3

As discussed earlier, Grand China’s complaint relied
alternatively on the principles of waiver and estoppel to argue
that State Auto could not avoid providing coverage (Dkt. No. 1-1 at
13-14). Neither party briefed this issue, however, and during a
motion hearing on May 15, 2017, Grand China advised that it no
longer intended to pursue the claim.
9

GRAND CHINA, ET AL. v. STATE AUTO

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MEMORANDUM OPINION AND ORDER GRANTING STATE AUTO’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 25]
AND DISMISSING THIS CASE WITH PREJUDICE
A.

Bodily Injury
Grand China first seeks a declaration that the Subject Policy

provides “bodily injury liability coverage for some or all of the
claims asserted and losses allegedly sustained” by Ullom in the
underlying complaint (Dkt. No. 1-1 at 12). State Auto, however,
contends that the underlying complaint does not allege a claim for
“bodily injury” as that term is defined in the Subject Policy (Dkt.
Nos. 4 at 17; 26 at 9-11).
The Subject Policy provides coverage for “bodily injury” as
follows (Dkt. No. 25-2 at 97, 108):
SECTION I - COVERAGES
COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1.
Insuring Agreement
a.
We will pay those sums that the insured
becomes legally obligated to pay as damages
because of “bodily injury” or “property
damage” to which this insurance applies. We
will have the right and duty to defend the
insured against any “suit” seeking those
damages. However, we will have no duty to
defend the insured against any “suit” seeking
damages for “bodily injury” or “property
damage” to which this insurance does not
apply. We may at our discretion investigate
any “occurrence” and settle any claim or
“suit” that may result.
. . .

10

GRAND CHINA, ET AL. v. STATE AUTO

1:16CV159

MEMORANDUM OPINION AND ORDER GRANTING STATE AUTO’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 25]
AND DISMISSING THIS CASE WITH PREJUDICE
SECTION V - DEFINITIONS
2.

“Bodily injury” means bodily injury, sickness or
disease sustained by a person, including death
resulting from any of these at any time.

In West Virginia, it is well-settled that “purely mental or
emotional harm that . . . lacks physical manifestation does not
fall within a definition of ‘bodily injury,’ . . . which is limited
to ‘bodily injury, sickness, or disease.’” Cherrington, 745 S.E.2d
at 522 (quoting Syl. Pt. 1, Smith, 542 S.E.2d 827) (“Because there
is no indication that Ms. Cherrington’s emotional distress has
physically

manifested

sustained

a

itself,

‘bodily

we

injury.’”).

conclude

that

“‘[G]reat

she

has

not

embarrassment,

consternation, mental pain and anguish, and emotional upset’ . . .
standing alone, do not constitute ‘bodily injury.’” Tackett v. Am.
Motorists Ins. Co., 584 S.E.2d 158, 166 (W. Va. 2003); see also
Smith, 542 S.E.2d at 831 (noting that a complaint was “completely
devoid of allegations” that physical symptoms occurred).
Here, the Subject Policy defines “bodily injury” as “bodily
injury, sickness or disease” (Dkt. No. 25-2 at 108). In light of
clearly established West Virginia precedent, Ullom’s underlying
claims

for

statutory

violations,

“emotional

distress,

embarrassment, [and] humiliation,” without more, do not fall within
11

GRAND CHINA, ET AL. v. STATE AUTO

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MEMORANDUM OPINION AND ORDER GRANTING STATE AUTO’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 25]
AND DISMISSING THIS CASE WITH PREJUDICE
this

definition.

manifestation

of

Ullom

simply

has

not

these

“purely

mental

alleged
or

any

emotional

physical
harm[s].”

Cherrington, 745 S.E.2d at 522. Therefore, coverage for “bodily
injury” is not triggered under the Subject Policy, and the Court
GRANTS State Auto’s motion for summary judgment on Grand China’s
first claim.4
B.

Personal Injury
Grand China next seeks a declaration that the Subject Policy

provides “personal and advertising injury liability coverage for
some or all of the claims asserted and losses allegedly sustained”
by Ullom in the underlying complaint (Dkt. No. 1-1 at 13). The
threshold question prompted by this claim is whether Ullom’s
allegation that he was refused service and directed to leave Grand
China is “reasonably susceptible of an interpretation that the
claim may be covered” under the Subject Policy as a “wrongful
eviction.” Pitrolo, 342 S.E.2d at 160.5 State Auto argues that,
4

Because Ullom did not allege a covered “bodily injury,” the
Court need not address State Auto’s alternative arguments that the
incident does not qualify as an “occurrence,” or that Sun’s conduct
triggers the Subject Policy’s exclusion for “expected or intended
injury” (Dkt. No. 26 at 10-12).
5

The parties do not dispute that Ullom need not have alleged
a cause of action for “wrongful eviction” to trigger the Subject
Policy’s coverage, for “wrongful eviction from . . . a room,
12

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MEMORANDUM OPINION AND ORDER GRANTING STATE AUTO’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 25]
AND DISMISSING THIS CASE WITH PREJUDICE
“[b]ecause Ullom was not a tenant and had no possessory interest in
the restaurant,” the underlying complaint does not trigger coverage
for “wrongful eviction” (Dkt. No. 28 at 6). Grand China contends
that “eviction” is reasonably susceptible to more than one meaning,
including “to force someone to leave a place,” and would encompass
Ullom’s allegations (Dkt. No. 27 at 14-16).
The Supreme Court of Appeals of West Virginia (“Supreme Court
of Appeals”) has not squarely addressed the scope of the term
“wrongful eviction” in this context. Nonetheless, this Court must
interpret the term as a West Virginia court would. Nautilus Ins.
Co. v. BSA Ltd. Partnership, 602 F. Supp. 2d 641, 652 (D. Md. 2009)
(citing Private Mortgage Inv. Servs., Inc. v. Hotel & Club Assocs.,
Inc., 296 F.3d 308, 312 (4th Cir. 2002)). After due consideration
of the Subject Policy’s language, as well as persuasive authority
from other jurisdictions, the Court concludes that the Subject
Policy

does

not

provide

personal

injury

coverage

for

the

allegations in the underlying complaint.
1.

The Subject Policy and Related Definitions

The Subject Policy provides “personal injury” coverage that
includes the following:
dwelling or premises that a person occupies” (Dkt. No. 27 at 9-14).
13

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MEMORANDUM OPINION AND ORDER GRANTING STATE AUTO’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 25]
AND DISMISSING THIS CASE WITH PREJUDICE
SECTION I - COVERAGES
. . .
COVERAGE B PERSONAL AND ADVERTISING LIABILITY
1.
Insuring Agreement
a.
We will pay those sums that the insured
becomes legally obligated to pay as damages
because of “personal and advertising injury”
to which this insurance applies. We will have
the right and duty to defend the insured
against any “suit” seeking those damages.
However, we will have no duty to defend the
insured against any “suit seeking damages for
“personal and advertising injury” to which
this insurance does not apply. We may, at our
discretion, investigate any offense and settle
any claim or “suit” that may result.
. . .
SECTION V - DEFINITIONS
14.

“Personal and advertising injury” means injury,
including consequential “bodily injury”, arising
out of one or more of the following offenses:
a.
False arrest, detention or imprisonment;
b.
Malicious prosecution;
c.
The wrongful eviction from, wrongful entry
into, or invasion of the right of private
occupancy of a room, dwelling or premises that
a person occupies, committed by or on behalf
of its owner, landlord or lessor;
d.
Oral or written publication, in any manner, of
material that slanders or libels a person or
organization or disparages a person’s or
organization’s goods, products or services;
e.
Oral or written publication, in any manner, of
material that violates a person’s right of
privacy;
f.
The use of another’s advertising idea in your
“advertisement”; or

14

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MEMORANDUM OPINION AND ORDER GRANTING STATE AUTO’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 25]
AND DISMISSING THIS CASE WITH PREJUDICE
g.

Infringing upon another’s copyright, trade
dress or slogan in your “advertisement”.

(Dkt. No. 25-2 at 101, 108) (emphasis added).
Although the Subject Policy does not define “eviction,” the
term “should be given its plain, ordinary meaning,” and dictionary
definitions may be instructive in that regard. Syl. Pt. 9, Nat’l
Union Fire Ins. Co. of Pittsburgh v. Miller, 724 S.E.2d 343, 352
(W. Va. 2012) (internal citation and quotation omitted). Based on
a review of several popular dictionaries, when taken in isolation
“eviction” may be assigned both the broad and narrow meanings urged
by the parties.
The ordinary meaning of “eviction” includes:
1: the act or process of evicting or the state of being
evicted[,] 2a: the recovery of lands or tenements from
another’s possession by due course of law . . . [,] b:
dispossession in virtue of a paramount title[,] c:
dispossession of a tenant by his landlord . . . .
Webster’s Third New International Dictionary 788 (unabridged ed.
2002). “Evict” means:
1a: to recover (property) of or from a person by legal
process or by virtue of a superior title[,] b: to put out
(a person) from property by legal process or by virtue of
a paramount right or claim of such right: eject, oust [,]
2: to force out: expel . . . .

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MOTION FOR SUMMARY JUDGMENT [DKT. NO. 25]
AND DISMISSING THIS CASE WITH PREJUDICE
Id. Black’s Law Dictionary defines “eviction” as “[t]he act or
process of legally dispossessing a person of land or rental
property.” Eviction, Black’s Law Dictionary (10th ed. 2014). Its
definition

of

“evict”

is

likewise

narrower

than

Webster’s

definition: “1. To expel (a person, esp. a tenant), from real
property, usu. by legal process. — Also termed put out. 2. Archaic.
To recover (property or title) from a person by legal process.”
Evict, Black’s Law Dictionary (10th ed. 2014).
2.

Persuasive Authority

Grand China urges the Court to find that, “[a]t the very
least,” “wrongful eviction” has an ambiguous meaning that can
reasonably be interpreted to encompass Ullom’s claim that he was
excluded from or forced out of Grand China (Dkt. No. 27 at 16).6 A
6

Grand China argues only that the underlying complaint
contains an allegation of “wrongful eviction,” not “invasion of the
right of private occupancy.” Indeed, Ullom’s claims relate to
“public accommodations” (Dkt. No. 1-1 at 24). The cases cited by
Grand China interpreting the “right of private occupancy” are thus
largely inapposite. See, e.g., Sell v. Nationwide Mut. Ins. Co.,
492 Fed. App’x 740 (9th Cir. 2012) (unpublished decision)
(reasoning that a “right of private occupation” does not
necessarily require “physical possession” simply by nature of the
limitation requiring the location at issue to be one “that a person
occupies”); New Castle Cty. v. Nat’l Union Fire Ins. Co., 243 F.3d
744 (3d Cir. 2001) (reasoning that “invasion of the right of
private occupancy,” “[a] single phrase, which insurance companies
have consistently refused to define, and that has generated
literally hundreds of lawsuits, with widely varying results,
16

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MOTION FOR SUMMARY JUDGMENT [DKT. NO. 25]
AND DISMISSING THIS CASE WITH PREJUDICE
number of jurisdictions have endorsed this reasoning. For instance,
in Insurance Co. of North America v. Forrest City Country Club, the
insured country club purchased a policy that included coverage for
“wrongful entry into, or eviction of a person from a room, dwelling
or premises that the person occupies.” 819 S.W.2d 296, 297 (Ark.
App. 1991). After the country club refused to allow an African
American

high

school

student

to

play

a

tennis

match

on

its

premises, the student filed suit alleging that the club had
violated her rights. Id. The insurer denied coverage, interpreting
“eviction” narrowly to require a landlord-tenant relationship. Id.
at 298. The Arkansas appellate court ruled otherwise, finding the
term to be ambiguous because it also reasonably could be construed
to include the more popular usage of “force out or eject.” Id.
Likewise, in a more recent decision, the District of Idaho
found coverage where the underlying claimant had no possessory
interest in real property. Harn v. Scottsdale Ins. Co., 1:12-cv00633-REB, 2014 WL 4702235 (D. Idaho Sept. 22, 2014). In Harn, a
woman who had been paralyzed after being hit by a drunk driver
volunteered

for

Mothers

Against

Drunk

Driving

in

order

to

cannot, under our application of commonsense, be termed
unambiguous”); Drought v. Nawrocki, 444 N.W.2d 65 (Wisc. Ct. App.
1989) (unpublished disposition).
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1:16CV159

MEMORANDUM OPINION AND ORDER GRANTING STATE AUTO’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 25]
AND DISMISSING THIS CASE WITH PREJUDICE
demonstrate

the

serious

consequences

of

driving

under

the

influence. Id. at *1. While she was volunteering at the Western
Idaho State Fair, the woman allegedly was told to leave because she
was “too graphic and other customers [were] complaining.” Id. When
suit followed, the fair organizer sought coverage from its insurer
based on a “personal injury” definition that included the same
“wrongful eviction” clause at issue in this case. The insurer
maintained that the coverage did not apply absent a landlord-tenant
relationship. Id. at *6.
After surveying other cases, the court reasoned that such
“wrongful eviction” provisions had been interpreted to apply both
narrowly,

to

“an

individual’s

possessory

interest

in

real

property,” and broadly, to “the removal of a person who has an
understood right to be in a place from which she is ultimately
removed.” Id. at *11. Finding the language “susceptible to more
than one reasonable construction, and therefore . . . ambiguous,”
the court declared that the insurer was obligated to provide
coverage. Id. at *12.7
7

For another example, see International Insurance Co. v.
Rollprint Packaging Products, Inc., 728 N.E.2d 680 (Ill. App. Ct.
2000) (finding that “eviction” could reasonably be interpreted to
apply when an employee was fired and physically removed from an
office that he “occupied,” even though the employee did not have a
18

GRAND CHINA, ET AL. v. STATE AUTO

1:16CV159

MEMORANDUM OPINION AND ORDER GRANTING STATE AUTO’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 25]
AND DISMISSING THIS CASE WITH PREJUDICE
State Auto relies on decisions where courts have denied
coverage after considering the same policy language. For instance,
in Westfield Insurance Group v. J.P.’s Wharf, Ltd., the insured
restaurant was the subject of allegations that it had “engaged in
racial discrimination” by “refus[ing] to serve certain patrons and
order[ing] them to leave.” 859 A.2d 74, 75 (Del. 2004). At issue in
the related declaratory action was language identical to the
“wrongful eviction” language in the Subject Policy. Id. While
acknowledging that some jurisdictions have found this language to
be ambiguous, the Supreme Court of Delaware nonetheless concluded
“that [the insurer’s] ‘wrongful eviction’ clause plainly requires
that the claim involve a possessory interest in property.” Id. at
76. It went on to quote with approval the following reasoning from
Zelda v. Northland Insurance Co., 66 Cal. Rptr. 2d 356 (1997):
[A]n insurance policy, like any other contract, must be
construed in its entirety, with each clause lending
meaning to the other. The proposal that the policy
legal or vested interest in the space). Although Grand China also
points to Martin Marietta Corp. v. Insurance Co. of North America
for support, contrary to Grand China’s position, the court in that
case actually reasoned that “‘other invasion of the right of
private occupancy,’ and ‘wrongful entry’ can apply only to the
general class of things to which ‘eviction’ clearly belongs, that
is, to claims relating to an invasion of an interest in real
property.” 47 Cal. Rptr. 2d 670, 678 (Cal. Ct. App. 1995) (emphasis
added).
19

GRAND CHINA, ET AL. v. STATE AUTO

1:16CV159

MEMORANDUM OPINION AND ORDER GRANTING STATE AUTO’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 25]
AND DISMISSING THIS CASE WITH PREJUDICE
definition covers any wrongful “eviction,” understood in
the popular sense, fails to give the phrase “from, a
room, dwelling or premises that the person occupies” a
function in the definition. Because an eviction,
popularly understood, is necessarily from somewhere the
phrase in question is redundant unless it means something
other than merely “from somewhere.” In this regard, we
observe that the term “to occupy,” in one of its popular
senses, means “to reside in as an owner or tenant.” Thus,
the only reasonable explanation for the additional phrase
is to clarify that the wrongfulness of the ejection must
consist in, or attach to, an invasion of the right of
occupation.
Id. at 364; see also STK Enterprises, Inc. v. Crusader Ins. Co., 14
P.3d 638 (Or. 2000) (“A ‘wrongful eviction’ within the context of
plaintiff's policy connotes an improper ouster from a possessory
interest in property.”); Am. Hardware Ins. Grp. v. West One
Automotive Grp., Inc., 2 P.3d 413 (Or. Ct. App. 2000).
Federal courts sitting in diversity have reached the same
conclusion where a patron has been excluded from a business. In
Gatlin v. Delux Entertainment, LLC, the insured nightclub allegedly
“refused to allow plaintiffs to enter the nightclub because of
their race.” No. 09-C-0961, 2010 WL 1904984, at *4 (E.D. Wisc. May
10, 2010). Applying Wisconsin law, the district court reasoned
that, in order to be wrongfully evicted, the plaintiffs must have
had “a legal right to occupy” the nightclub:
In the present case, plaintiffs do not allege that they
had a legal right to occupy DBB. Rather, DDB is a
20

GRAND CHINA, ET AL. v. STATE AUTO

1:16CV159

MEMORANDUM OPINION AND ORDER GRANTING STATE AUTO’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 25]
AND DISMISSING THIS CASE WITH PREJUDICE
nightclub, and plaintiffs could have been denied entry
for any number of permissible reasons. The fact that
plaintiffs
allege
that
they
were
excluded
for
impermissible reasons does not mean that they had a legal
right to occupy the premises.
Id. at *4 (citing Westfield, 859 A.2d 74; STK Enters., Inc., 14
P.3d 638; Zelda, 66 Cal. Rptr. 2d 356); see also Century Surety Co.
v. Seductions, LLC, 609 F. Supp. 2d 1273 (S.D. Fla. 2009) (“[T]he
complaint alleges that Mr. Arana, a business invitee of the insured
at the time of the incident, was forcefully removed from the club.
Nothing in the Complaint suggests that Mr. Arana even temporarily
had a possessory interest in the premises.”).
3.

Application to West Virginia Precedent

Obviously, courts disagree sharply about whether the term
“wrongful

eviction”

is

unambiguous

in

its

scope.

Under

West

Virginia law, this split of authority should undoubtedly be taken
into consideration. Indeed, the Supreme Court of Appeals has noted
that “[a] provision in an insurance policy may be deemed to be
ambiguous if courts in other jurisdictions have interpreted the
provision in different ways.” Murray v. State Farm Fire & Cas. Co.,
509 S.E.2d 1, 9 n.5 (W. Va. 1998).
But such differing interpretations do not establish that the
language at issue necessarily is ambiguous if a term’s ordinary
21

GRAND CHINA, ET AL. v. STATE AUTO

1:16CV159

MEMORANDUM OPINION AND ORDER GRANTING STATE AUTO’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 25]
AND DISMISSING THIS CASE WITH PREJUDICE
meaning

is

otherwise

clear.

Mylan

Laboratories,

Inc.

v.

Am.

Motorists Ins. Co., 700 S.E.2d 518, 529 (W. Va. 2010).8 Nor does
the fact that the parties disagree on a term’s meaning render it
ambiguous. Syl. Pt. 4, Blake v. State Farm Mut. Auto. Ins. Co., 685
S.E.2d 895 (W. Va. 2009). Instead, the Court must “construe all
parts of the [policy] together” and “avoid ambiguities and not
torture the language to create them.” Id. at 900-01 (quoting Payne
v. Weston, 466 S.E.2d 161, 166 (W. Va. 1995)).
In West Virginia, a term may be ambiguous if it has a number
of

possible

meanings,

and

the

policy

provides

no

narrowing

definition. Bowyer v. Hi-Lad, Inc., 609 S.E.2d 634, 651 (W. Va.
2004). For instance, in Bowyer, a hotel employee sued his employer
for using hidden microphones to illegally conduct oral surveillance
of its employees. The hotel sought coverage and a defense from its
commercial general liability insurer, claiming that the employee’s
allegations were covered personal injuries. Id. at 641. The hotel
argued that the allegations fell within coverage for “[o]ral or
written publication of material that violates a person’s right to

8

Other jurisdictions that find “wrongful eviction” to be
ambiguous somewhat blithely conclude that multiple meanings and
judicial interpretations of the term compel such a finding. See,
e.g., Harn, 1:12-cv-00633-REB, 2014 WL 4702235, at *11.
22

GRAND CHINA, ET AL. v. STATE AUTO

1:16CV159

MEMORANDUM OPINION AND ORDER GRANTING STATE AUTO’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 25]
AND DISMISSING THIS CASE WITH PREJUDICE
privacy.”

The

insurer

contended

that

this

provision

required

publication to a third party, which, in Bowyer’s case, had not
occurred. Id. at 650. The Supreme Court of Appeals agreed with the
insured, reasoning that the policy did not contain a definition of
“publication” narrowly requiring that intercepted communications be
transmitted to a third party in order to trigger coverage. Id. at
651.
Here, however, unlike the policy in Bowyer, the Subject Policy
provides the clarifying language necessary to avoid ambiguity. Not
every allegation of “eviction” is a covered personal injury;
rather, the Subject Policy provides coverage only for “wrongful
eviction from . . . a room, dwelling or premises that a person
occupies” (Dkt. No. 25-2 at 108) (emphasis added). Thus, although
if considered in isolation, “eviction” may carry a number of
possible

meanings,

the

plain

language

of

the

Subject

Policy

“clearly signal[s] the requirement that [Ullom] be wrongly deprived
of occupation.” Zelda, 66 Cal. Rptr. 2d at 364. “[T]he only
reasonable explanation” for the Subject Policy’s requirement that
the eviction be from a place that a person occupies “is to clarify
that the wrongfulness of the ejection must consist in, or attach
to, an invasion of the right of occupation.” Westfield, 859 A.2d at
23

GRAND CHINA, ET AL. v. STATE AUTO

1:16CV159

MEMORANDUM OPINION AND ORDER GRANTING STATE AUTO’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 25]
AND DISMISSING THIS CASE WITH PREJUDICE
77

(quoting

Zelda,

66

Cal.

Rptr.

2d

at

364);

cf.

Mylan

Laboratories, 700 S.E.2d at 528 (summarizing the same “wrongful
eviction” language at issue here as “wrongful eviction from, entry
into, or invasion of the right of occupancy of one’s property”
(emphasis added)).9
Ullom’s underlying complaint does not allege any possessory
interest in Grand China that gave him a right to occupy the
restaurant. He has alleged only that Grand China wrongfully denied
him the right to be served with certain accommodations required by
West Virginia law, namely the presence of his service dog. Accord
Gatlin, No. 09-C-0961, 2010 WL 1904984, at *4. Thus, Ullom’s
allegation is not reasonably susceptible to an interpretation that
is

covered

by

the

Subject

Policy’s

provision

for

“wrongful

eviction.” The Court therefore GRANTS State Auto’s motion for

9

That the term “occupy” may be subject to varying definitions
does not render the clause ambiguous. Webster’s Third New
International Dictionary 1561 (unabridged ed. 2002). If the Subject
Policy’s occupation requirement did not implicate a possessory
interest, the clarifying language would be superfluous. Accord
Westfield, 859 A.2d at 77 (quoting Zelda, 66 Cal. Rptr. 2d at 364)
(“Because an eviction, popularly understood, is necessarily from
somewhere, the phrase in question is redundant unless it means
something other than merely ‘from somewhere.’”).
24

GRAND CHINA, ET AL. v. STATE AUTO

1:16CV159

MEMORANDUM OPINION AND ORDER GRANTING STATE AUTO’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 25]
AND DISMISSING THIS CASE WITH PREJUDICE
summary judgment on Grand China’s second claim. See Pitrolo, 342
S.E.2d at 160.10
V. CONCLUSION
For the reasons discussed, the Court:
1)

GRANTS State Auto’s motion for summary judgment on the
coverage issues (Dkt. No. 25);

2)

DECLARES that the allegations in the underlying complaint
do not trigger the Subject Policy’s coverage for “bodily
injury” or “personal injury”;

3)

DECLARES

that

State

Auto

has

no

duty

to

defend or

indemnify Grand China and Chen on the allegations in the
underlying complaint;
4)

DISMISSES AS MOOT Grand China’s bifurcated bad faith
claims; and

5)

DISMISSES this case WITH PREJUDICE.

It is so ORDERED.

10

In light of this conclusion, the Court need not reach the
parties’ dispute concerning the Subject Policy’s exclusion for
“knowing violations of right of another” (Dkt. Nos. 27 at 18-21; 28
at 10-11).
25

GRAND CHINA, ET AL. v. STATE AUTO, ET AL.

1:16CV159

MEMORANDUM OPINION AND ORDER GRANTING STATE AUTO’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 25]
AND DISMISSING THIS CASE WITH PREJUDICE
The Court DIRECTS the Clerk of Court to transmit copies of
this Order to counsel of record and to enter a separate judgment
order.
DATED: May 16, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

26