Filed: Sep. 23, 2016
Latest Update: Mar. 03, 2020
Summary: Case: 15-15322 Date Filed: 09/23/2016 Page: 1 of 11 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 15-15322 Non-Argument Calendar _ D.C. Docket No. 1:13-cv-01069-ELR NATIONWIDE MUTUAL INSURANCE CO., as Successor in Interest by Merger to Harleysville Mut. Ins. Co., Plaintiff - Counter Defendant, versus ARCHITECTURAL GLAZING SYSTEMS, INC., Defendant - Cross Defendant - Third Party Plaintiff - Appellant, SUNBELT RENTALS, INC., Defendant - Counter Claimant - Cr
Summary: Case: 15-15322 Date Filed: 09/23/2016 Page: 1 of 11 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 15-15322 Non-Argument Calendar _ D.C. Docket No. 1:13-cv-01069-ELR NATIONWIDE MUTUAL INSURANCE CO., as Successor in Interest by Merger to Harleysville Mut. Ins. Co., Plaintiff - Counter Defendant, versus ARCHITECTURAL GLAZING SYSTEMS, INC., Defendant - Cross Defendant - Third Party Plaintiff - Appellant, SUNBELT RENTALS, INC., Defendant - Counter Claimant - Cro..
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Case: 15-15322 Date Filed: 09/23/2016 Page: 1 of 11
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15322
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cv-01069-ELR
NATIONWIDE MUTUAL INSURANCE CO.,
as Successor in Interest by Merger to Harleysville Mut. Ins. Co.,
Plaintiff - Counter Defendant,
versus
ARCHITECTURAL GLAZING SYSTEMS, INC.,
Defendant - Cross Defendant -
Third Party Plaintiff - Appellant,
SUNBELT RENTALS, INC.,
Defendant - Counter Claimant - Cross
Claimant -Third Party Plaintiff - Appellant,
MARSHA TURNER, et al.,
Defendants,
Case: 15-15322 Date Filed: 09/23/2016 Page: 2 of 11
SELECTIVE INSURANCE COMPANY OF SOUTH CAROLINA,
Defendant - Cross Defendant - Appellee,
AGS WATERPROOFING, LLC., et al.,
Third Party Defendants.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
________________________
(September 23, 2016)
Before WILSON, ROSENBAUM and BLACK, Circuit Judges.
PER CURIAM:
Appellant Sunbelt Rentals, Inc. (Sunbelt) appeals the district court’s order
granting summary judgment in favor of Selective Insurance Company of South
Carolina (Selective) on Sunbelt’s crossclaims against Selective. Appellant
Architectural Glazing Systems, Inc. (Glazing) appeals the district court’s order
denying its motion for summary judgment against Sunbelt on Sunbelt’s
crossclaims against Glazing. Glazing also argues that the district court erred in
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granting summary judgment in favor of Selective on Sunbelt’s crossclaims against
Selective. After review, 1 we affirm.
I. BACKGROUND
Glazing is a glazing contractor formed in 2002 and owned by Tommy
Sizemore (Sizemore), Rick Langford (Langford), and Jacki Langford. 2 Glazing’s
business entails installing glass storefronts and windows in commercial and
residential buildings. Waterproofing is a waterproofing contractor formed in 2007
by Sizemore and Langford. Waterproofing’s business entails caulking and
waterproofing work on windows and buildings. Glazing was managed by
Sizemore and Langford, while Waterproofing was managed by an operations
manager, Karl Turner, who was not an employee of Glazing. The two companies
shared office space and Waterproofing paid a fee to use Glazing’s administrative
staff. Waterproofing also sometimes worked as a subcontractor for Glazing.
Despite this overlap in ownership and operations, Glazing and Waterproofing
were insured by different companies. Glazing was insured by Nationwide Mutual
Insurance Company (Nationwide), while Waterproofing was insured by Selective.
In 2005, Glazing made credit applications to Sunbelt for the purpose of
opening a rental account so that it could rent equipment from Sunbelt. The
1
We review de novo a district court’s grant of summary judgment, viewing all facts and
reasonable inferences in the light most favorable to the nonmoving party. Allison v. McGhan
Med. Corp., 184 F.3d 1300, 1306 (11th Cir.1999)
2
As the parties are familiar with the facts of this case, we will not recount them in detail.
We include only those facts necessary to the discussion of each issue.
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applications resulted in a Credit Agreement that established a rental account for
Glazing and contained terms governing “all purchases/rentals made by Customer
from Sunbelt.” The Credit Agreement identified Glazing as the sole “Customer”
associated with the rental account and listed Sizemore, Langford, and Jacki
Langford as the “Authorized Renter(s).” By signing the Credit Agreement,
Glazing agreed that each rental would be subject to the terms and conditions of
Sunbelt’s Rental Agreement, which terms and conditions were “incorporated into
and made a part of” the Credit Agreement. Glazing agreed that the terms of the
Rental Agreement would apply to “each and every rental of equipment and/or
provision of labor furnished to Lessee, whether or not Lessee executes each such
rental contract.” The Credit Agreement further provided that terms associated with
future rentals that were “inconsistent with or in addition to the terms and
conditions of [the Credit Agreement]” would be “void and have no effect.”
Sunbelt assigned Glazing rental account number 432746.
After Waterproofing was formed in 2007, Glazing began to permit
Waterproofing to use rental account number 432746 to rent equipment that
Waterproofing needed for its own jobs. Sizemore and Langford authorized Karl
Turner to order equipment and charge the rental to account number 432746. When
Sunbelt invoiced Glazing for a rental, Jacki Langford would separate the invoices
according to whether the equipment had been used by Glazing or Waterproofing.
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Invoices for equipment used by Glazing were paid with checks issued on a Glazing
checking account. Invoices for equipment used by Waterproofing were paid with
checks issued on a Waterproofing checking account.
Sunbelt became aware of these practices as early as 2010. Sunbelt was
aware that two companies associated with Sizemore and Langford were using
account number 432746. Sunbelt also knew that some of the invoices sent out for
Glazing were paid by Waterproofing. Yet Sunbelt never rejected a Waterproofing
payment or requested that Waterproofing open its own rental account. Sunbelt
continued to list Glazing as the “Customer” on its Rental Agreements, to interface
with Glazing employees in connection with past-due payments, and to address its
invoices to Glazing.
In November 2011, Sunbelt sent a letter to Glazing requesting an updated
certificate of insurance in connection with account number 432746. The letter was
addressed to Glazing and did not mention Waterproofing. Glazing responded by
sending Sunbelt a certificate of insurance stating that Sunbelt was an additional
insured under Glazing’s policy with Nationwide. The certificate of insurance did
not mention Waterproofing. Sunbelt did not request a certificate of insurance for
Waterproofing.
On November 29, 2011, Karl Turner called Sunbelt and ordered an 80 foot
boom lift on account number 432746. Sunbelt prepared a Rental Agreement
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identifying the “Customer” renting the equipment as “432746” and “Architectural
Glass Systems.” 3 On November 30, 2011, Sunbelt delivered the boom lift to Old
Fourth Ward, the jobsite listed on the Rental Agreement, where Waterproofing was
conducting a job. A Waterproofing employee, Rigoberto Lopez, signed a Rental
Agreement and accepted delivery of the boom lift. The Rental Agreement listed
Glazing as the “Customer” and incorporated the terms of the original “Customer
executed” Credit Agreement. The Rental Agreement contained a clause requiring
the “Customer” to maintain liability insurance and “name Sunbelt as an additional
insured” on the insurance policy. It also required the “Customer” to indemnify
Sunbelt in connection with the boom-lift rental.
On December 2, 2011, during the course of Waterproofing’s work at the
Old Fourth Ward site, the boom lift overturned. Karl Turner and Rigoberto Lopez
were killed in the accident. Thereafter, the families of Turner and Lopez filed suit
against Sunbelt for damages associated with their deaths. Sunbelt added
Waterproofing and Glazing as third-party defendants, arguing that one or both of
them have a duty to indemnify Sunbelt under the Rental Agreement. Nationwide
agreed to defend Glazing in that action subject to a reservation of rights. Selective
denied coverage and declined to defend Waterproofing.
3
The parties agree that “Architectural Glass Systems” is a misnomer for Glazing that
Sunbelt used in paperwork connected with account number 432746.
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On April 2, 2013, Nationwide filed the present action against Sunbelt,
Selective, Glazing, and other defendants, requesting relief in connection with the
various insurance controversies. Sunbelt filed a crossclaim against Selective
requesting declaratory judgment that: (1) Waterproofing is a party to the Rental
Agreement; (2) Selective is required to provide coverage to Sunbelt for the boom-
lift accident because Sunbelt is an “additional insured” under the insurance
contract between Selective and Waterproofing; and (3) the insurance contract
between Selective and Waterproofing requires Selective to provide coverage to
Waterproofing for any and all indemnity obligations that Waterproofing owes
Sunbelt under the Rental Agreement. Sunbelt also filed a crossclaim against
Glazing alleging that: (1) Glazing is a party to the Rental Agreement; (2) the
Rental Agreement requires Glazing to indemnify Sunbelt for any and all
obligations associated with the boom-lift accident; and (3) Glazing breached the
Rental Agreement by failing to obtain insurance coverage for Sunbelt in
connection with the boom-lift rental.
Selective and Glazing filed motions for summary judgment. The district
court found that Glazing was a party to the Rental Agreement, that Waterproofing
was not a party to the Rental Agreement, and that the Rental Agreement requires
Glazing to indemnify Sunbelt in connection with the boom-lift accident. See
Jurich v. Compass Marine, Inc., 764 F.3d 1302, 1304 (11th Cir. 2014) (“Summary
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judgment is appropriate where there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law.”). The district court
therefore (1) denied Glazing’s motion for summary judgment against Sunbelt on
Sunbelt’s crossclaim against Glazing; and (2) granted Selective’s motion for
summary judgment against Sunbelt on Sunbelt’s crossclaim against Glazing. On
October 26, 2015, the district court entered final judgment pursuant to a stipulation
by the parties. Sunbelt and Glazing appeal.
II. DISCUSSION
A. Sunbelt v. Glazing
We first consider Sunbelt’s crossclaim against Glazing. Glazing argues on
appeal that the district court erred when it held that Turner and Lopez had
“apparent authority” to rent equipment on Glazing’s account and bind Glazing to
the Rental Agreement. The district court found that Glazing knowingly permitted
Waterproofing employees to rent equipment on Glazing’s account, that all parties
were aware of this practice, and that this course of dealing caused Sunbelt to
reasonably believe that Turner and Lopez had authority to bind Glazing to Rental
Agreements in connection with account number 432746. See Dunn v. Venture
Bldg. Grp., Inc., 642 S.E.2d 156, 159 (Ga. 2007) (“Apparent authority is . . . based
on acts of the principal which have led [a] third party to believe reasonably the
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agent had such authority.”). The district court therefore concluded that Glazing
was a party to the November 30, 2011, boom-lift Rental Agreement.
We have reviewed the record and agree with the district court that Glazing
was a party to the Rental Agreement. The Credit Agreement for account number
432746 establishes that Glazing was the sole “Customer” associated with account
number 432746, that each rental on the account was subject to the Credit
Agreement along with any rental-specific agreements, and that terms and
conditions “inconsistent with” the Credit Agreement would be “void and have no
effect.” Thus, by authorizing Waterproofing to use account number 432746,
Glazing communicated to Sunbelt that Waterproofing had authority to bind
Glazing in connection with Glazing’s agreed-upon obligations under the Credit
Agreement. Neither Glazing nor Waterproofing took action to disabuse Sunbelt of
the belief that Waterproofing had such authority, despite numerous opportunities to
do so. See Addley v. Beizer, 423 S.E.2d 398, 402 (Ga. Ct. App. 1992) (“The
authority of an agent in a particular instance may be established by the principal’s
conduct and course of dealing . . . .” (emphasis omitted)). In particular, neither
party asked Sunbelt to address invoices to Waterproofing or list Waterproofing as
the “Customer” on the Rental Agreements. When Sunbelt requested an updated
certificate of insurance, Glazing provided a certificate of insurance for Glazing but
not for Waterproofing. Turner and Lopez never indicated that they worked for
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Waterproofing or were renting the boom lift on Waterproofing’s behalf. And
finally, the boom-lift Rental Agreement Lopez signed listed Glazing as the
“Customer” and incorporated the terms of the original “Customer executed” Credit
Agreement. These facts demonstrate that Waterproofing had at least apparent
authority to bind Glazing to the boom-lift Rental Agreement. See Dunn, 642
S.E.2d at 159;
Addley, 423 S.E.2d at 402. We therefore affirm the denial of
Glazing’s motion for summary judgment against Sunbelt on Sunbelt’s crossclaim
against Glazing.
B. Sunbelt v. Selective
We next consider Sunbelt’s crossclaim against Selective. Sunbelt argues on
appeal that (1) Selective has a duty to provide coverage to Sunbelt as an
“additional insured” under its insurance contract with Waterproofing; and (2)
Selective has a duty to indemnify Sunbelt because Waterproofing agreed to
indemnify Sunbelt when Lopez signed the Rental Agreement. The insurance
contract between Selective and Waterproofing provided that Waterproofing could
add “additional insured[s]” to the policy by “agree[ing] in a written contract,
written agreement, or written permit to add [the entity] as an additional insured on
[the] policy.” The contract further provided that “[t]he provisions of this coverage
extension do not apply unless the written contract or written agreement has been
executed.” The contract defines “executed” as “signed by the named insured.”
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Sunbelt argues that Waterproofing added Sunbelt as an “additional insured” when
Lopez—a Waterproofing employee—signed the Rental Agreement promising to
maintain liability insurance and “name Sunbelt as an additional insured” on the
insurance policy. As we concluded supra, however, Waterproofing was acting as
Glazing’s agent when it rented equipment on account number 432746. Because
Lopez signed the Rental Agreement on behalf of Glazing—not Waterproofing—
his signature is insufficient to add Sunbelt as an additional insured to
Waterproofing’s insurance policy. We reject the contention that Selective has a
duty to indemnify Sunbelt on behalf of Waterproofing for similar reasons. The
Rental Agreement provides that “CUSTOMER INDEMNIFIES . . . SUNBELT.”
But Glazing—not Waterproofing—is the entity bound by that promise. We
therefore affirm the order granting summary judgment in favor of Selective on
Sunbelt’s crossclaims against Selective.
AFFIRMED.
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