The U.S. Court of Appeals for the Eleventh Circuit, affirming a decision by the U.S. District Court for the Southern District of Georgia, has ruled that the insurer for a store owner had no duty to defend the company that leased the store as an "additional insured," even though it was listed on the policy as such.
The Case
Vicki Thrift sued Shivam Trading, Inc., in a Georgia state court for an injury she allegedly suffered in a slip and fall at a convenience store operated by Shivam.
Ms. Thrift also sued Sidhi Investment Corporation, which owned the store and leased it to Shivam, but Sidhi obtained summary judgment against Ms. Thrift on those claims.
Sidhi was insured by Employers Mutual Casualty Company, and Shivam was listed on Sidhi's insurance policy as an "additional insured."
Employers contended that it had no obligation to defend Shivam as an additional insured because its insurance policy did not cover Shivam for Ms. Thrift's claims.
Employers asked the Georgia district court to declare that it had no duty to defend Shivam against Ms. Thrift's lawsuit.
The district court ruled in favor of the insurer, and Ms. Thrift appealed to the Eleventh Circuit.
The Employers Policy
The preamble to the Employers policy stated that throughout the policy:
"you" and "your" refer to the Named Insured shown in the Declarations [Sidhi]
An endorsement provided:
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.The Eleventh Circuit's Decision
The circuit court affirmed.
In its decision, the circuit court agreed with the district court that the words "you" and "your" in the policy and endorsement referred only to the named insured – Sidhi – and, therefore, Shivam, as the additional insured, was covered only for liability caused, "in whole or in part," by the acts of the named insured (Sidhi).
According to the circuit court, nothing in the endorsement contravened the language in the preamble, and the endorsement was "most convincingly read in tandem with the preamble." The most logical reading of the endorsement, the circuit court said, was that an additional insured (Shivam) was covered only for liability "caused, in whole or in part, by [Sidhi's] acts or omissions or the acts or omissions of those acting on [Sidhi's] behalf in the performance of [Sidhi's] ongoing operations or in connection with [Sidhi's] premises owned by or rented to [Sidhi]."
Because "you" and "your" unambiguously referred to Sidhi, and Sidhi was found not liable to Ms. Thrift for her slip and fall, EMC was not liable under the policy for Ms. Thrift's slip and fall, the circuit court concluded.
The case is Employers Mutual Cas. Co. v. Shivam Trading, Inc., No. 17-12672 (11th Cir. Jan. 11, 2018). Attorneys involved include: For EMPLOYERS MUTUAL CASUALTY COMPANY, Plaintiff – Appellee: Thomas Jeffery Lehman, Thomas Eugene Brennan, Fain Major & Brennan, PC, ATLANTA, GA. For VICKI THRIFT, Defendant – Appellant: Earl Daniel Smith, Jr., Earl Daniel Smith, Jr., PC, NAHUNTA, GA; C. Deen Strickland, D. Deen Strickland, P.C., WAYCROSS, GA. For SERVICE: Chetaliben Patel, Hitesh Patel, Shivam Trading, Inc., BIRMINGHAM, AL; Niteshkumar Patel, RICEBORO, GA.
Steven A. Meyerowitz
Steven A. Meyerowitz, a Harvard Law School graduate, is the founder and president of Meyerowitz Communications Inc., a law firm marketing communications consulting company. He may be contacted at [email protected].