Case: 14-10264       Date Filed: 10/24/2014      Page: 1 of 5


                                                                     [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 14-10264
                                Non-Argument Calendar
                              ________________________

                         D.C. Docket No. 1:12-cv-03112-TWT

SHAWN MOON, et al.,

                                                                         Plaintiffs-Counter
                                                                         Defendants,

                                            versus

CINCINNATI INSURANCE COMPANY,
                                                                         Defendant-
                                                                         Counter-Claimant-
                                                                         Appellee,
KEMI GREEN,
GBOLAHAN BANKOLEMOH,
                                                                         Counter
                                                                         Defendants-
                                                                         Appellants.
                                 ____________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                                ___________________
                                  (October 24, 2014)

Before TJOFLAT and JORDAN, Circuit Judges.*

________________
*The opinion is being entered by a quorum pursuant to 28 U.S.C. § 46(d) due to Judge Hill’s
retirement on October 20, 2014.
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PER CURIAM:

      Shawn Moon and Tanya Moon brought this action again The Cincinnati

Insurance Company (“Cincinnati”) asserting both common law and contractual

claims arising out of their insurance coverage dispute. The district court granted

summary judgment to Cincinnati on all the Moons’ claims against it. The Moons

brought this appeal. Finding no error in the district court’s conclusions, we shall

affirm.


      This action stems from the drowning death of a two-year-old child in a

swimming pool at a home occupied by Shawn and Tanya Moon. At the time of the

accident, Tanya Moon was babysitting the child.


      The property was owned and insured by Shawn Moon’s father, Terry Moon.

In addition to Terry Moon, the insurance policy extended coverage to “[a]ny

person . . . while acting as [Terry Moon’s] real estate manager.”


      The decedent’s parents and estate brought suit against Shawn and Tanya

Moon and obtained a judgment in excess of ten million dollars. After initially

defending Shawn and Tanya Moon under a signed reservation of rights, Cincinnati

subsequently denied coverage and withdrew its defense of the Moons. The stated

reason for the denial of coverage was that the policy did not cover Shawn and


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Tanya Moon through their relationship with Terry Moon, the homeowner and

policyholder.


      The Moons brought this action in state court asserting breach of contract and

both common law and statutory bad faith failure to settle claims. They also sought

punitive damages and attorneys’ fees. Cincinnati removed the action to the district

court. The parties filed cross motions for summary judgment. The district court

granted Cincinnati’s motion, holding that it had no duty to defend the Moons in the

wrongful death action against them as they were neither the insured under the

policy nor acting as real estate managers at the time of the accident. The court

reserved ruling on the Moons’ claim that Cincinnati voluntarily undertook duties to

them while providing them with a preliminary defense and considering settlement

proposals, but later denied these claims as well.


      On appeal, the Moons assert that the district court erred in these holdings.

The crux of their argument is that, since the term “real estate manager” is

undefined in the policy, it is ambiguous and its meaning must be strictly construed

and resolved in favor of coverage. They assert that a “real estate manager” is “one

who simply takes care of an owners’ (sic) needs with regard to a piece of real

estate.” They argue that, because they took care of the home they leased from

Shawn Moon’s father, Terry, they were real estate managers as well as lessees.


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They cite no authority whatsoever for these arguments.


      The district court held that the term real estate manager has an accepted

meaning in the industry and is not ambiguous. The industry term “real estate

manager” implicates real estate transactions rather than routine maintenance.

Sumitomo Marine & Fire Ins. Co. of America v. Southern Guar. Ins. Co., 337 F.

Supp. 2d 1339, 1358 (N.D. Ga. 2004)(real estate managers are involved in selling

or renting houses). See also Insurance Co. of North America v. Hilton Hotel USA,

Inc., 

, 815 (D. Nev. 1995); Dempsey Ex. Rel. Dempsey v. Clark,

, 137 (La. Ap. 2003); McDermott v. Smith, 

(La.

App. 1st Cir. 1978).


      Furthermore, to extend the definition of real estate manager to include a

tenant who performs routine maintenance on the home he is leasing would render

meaningless the policy’s lack of coverage for tenants of the property. Indeed, it

would transform every tenant, family member or friend living in another’s home,

who cuts the yard or paints a wall, into a covered real estate manager. This is not a

reasonable interpretation of real estate manager. See Gulf Ins. Co. v. Mathis, 

, 324 (1987)(construction of insurance contract term must conform to

what a reasonable insured would understand it to me). No reasonable insured




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would equate his tenants with real estate managers. 1


       Finally, the district court noted that the deposition testimony of the actual

insured, Terry Moon, clearly revealed that he did not consider his son and

daughter-in-law to be real estate managers of his property. He was allowing them

to live there to help them out (he purchased the home from them to avoid

foreclosure).


       The court subsequently held that, because the Moons were neither the

insureds nor real estate managers, all of their other claims – which depended upon

their being covered by the policy – were due to be denied.


       We agree with the district court. As mere tenants of the property, the Moons

were not covered by Terry Moon’s policy of insurance with Cincinnati. There

being no error in the judgment below, we


       AFFIRM.




       1
         Furthermore, to be covered, a real estate manager must be acting as a real estate
manager at the time of the event for which coverage is sought. At the time of this accident,
Tanya Moon was babysitting and Shawn Moon was not at home. There were no allegations in
the complaint that the Moons were acting as real estate managers at the time of the accident.
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