United States District Court, S.D. Georgia, Waycross Division
GODBEY WOOD, DISTRICT JUDGE
a cue from The Who, the parties in this insurance
declaratory-judgment dispute seek the answer to a simple
question: "Who are 'you'?" See The
Who, Who Are You, on Who Are You (MCA
Records 1978). In the policy at issue ("the
Policy"), that pronoun clearly does not refer
to additional insureds, nor does the Policy extend coverage
to all liability relating to the named insured's
premises. Nor can the Policy's unambiguous meaning be
undercut by estoppel. For these reasons, as explained more
fully below, the summary judgment motion brought by Defendant
Vicki Thrift, dkt. no. 30, will be DENIED, while that of
Plaintiff Employers Mutual Casualty Co. ("EMC"),
dkt. no. 36, will be GRANTED.
claims to have slipped and fallen at a convenience store
whose landlord is Sidhi Investment Corp. ("Sidhi")
and whose operator is Shivam Trading Co.
("Shivam"). Dkt. No. 30-1 ¶¶ 6,
18.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. Thrift's claim against
Shivam is still making its way through the Georgia courts.
Dkt. No. 36-3 ¶ 26.
is the named insured on an EMC insurance policy ("the
Policy") covering the convenience store. Dkt. No. 1-1 at
17. Shivam is an additional insured. Id. at 6. The
Policy has three provisions relevant here. The first is the
preamble, which says that throughout the Policy,
"'you' and 'your' refer to the Named
Insured shown in the Declarations." Id. at 36.
Then, there are two provisions relating to coverage. One is
entitled, "Who Is An Insured." Dkt. No. 1-2 at 37.
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.
Id. For example, if a trust is designated, both the
trust and its trustees, "with respect to their duties,
" are insureds. Id. at 38.
there is an endorsement for additional insureds:
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, 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).
seeks declaratory judgment "as to whether the policy
provides or excludes coverage for Vicki Thrift's
claims." Dkt. No. 1 ¶ 19. Thrift moved for summary
judgment on March 17, 2017. Dkt. No. 30. In addition to
arguing from the Policy's language, she relied on certain
statements made contemporaneously by an insurance agent,
Richard Herschel Lovett. Thrift's motion met a dueling
one from EMC. Dkt. No. 36. The motions are fully briefed and
ripe for disposition. Dkt. Nos. 41-44, 46, 48, 51.
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." Fed.R.Civ.P.
56(a). "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. White
Springs Aqric. Chem., Inc. v. Gaffin Indus. Serv., Inc.,
No. 3:ll-CV-998, 2014 WL 905577, at *6 (M.D. Fla. Mar. 7,
2014) (citation omitted).
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. Co. v.
Harkleroad, No. 409CV011, 2010 WL 2076941, at *3 (S.D.
Ga. May 24, 2010); Tucker Maters. (Ga.), Inc. v. Devito
Contracting & Supply, Inc., 535 S.E.2d 858, 859
(Ga.Ct.App. 2000). There sis no ambiguity "unless and
until an application of the pertinent rules of
construction" leaves lingering uncertainty.
Auto-Owners Ins. Co. v. Barnes, 373 S.E.2d 217, 219
(Ga.Ct.App. 1988). "[I]t is the understanding of the
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." Fidelity Nat'l Title Ins. Co. v.
Keyingham Inv., LLC, 702 S.E.2d 851, 853 (Ga. 2010)
(citations omitted) . But "the rule of liberal
construction . . . cannot be used to create an ambiguity
where none, in fact, exists." State Farm Mut. Auto.
Ins. Co. v. Staton, 685 S.E.2d 263, 266 (Ga. 2009).
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, not Shivam
as an additional insured, and it does not extend coverage to
all liability relating to Sidhi's ...