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Employers Mutual Casualty Co. v. Shivam Trading, Inc.

United States District Court, S.D. Georgia, Waycross Division

May 16, 2017




         Taking 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.


         Thrift 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.[1]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.

         Sidhi 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.

         Lastly, 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).

         EMC 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.


         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." 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).

         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. 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).


         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, not Shivam as an additional insured, and it does not extend coverage to all liability relating to Sidhi's ...

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