Case: 13-60001       Document: 00512374350         Page: 1     Date Filed: 09/16/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 16, 2013
                                     No. 13-60001
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




STATE AUTO INSURANCE COMPANIES,

                                                  Plaintiff–Appellant,

versus

HARRISON COUNTY COMMERCIAL LOT, L.L.C.;
H. GORDON MYRICK, INCORPORATED;
H. GORDON MYRICK, JR., Individually;
SHOEMAKE PAINTING SERVICES, INCORPORATED,

                                                  Defendants–Appellees.




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:11-CV-125




Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                    No. 13-60001

      State Auto Insurance Companies (“State Auto”) appeals the denial of sum-
mary judgment in its declaratory-judgment action. Because H. Gordon Myrick,
Incorporated (“HGM”), is entitled to coverage under the policy purchased by
Shoemake Painting Services, Incorporated (“Shoemake”), we affirm.


                                          I.
      Harrison County Commercial Lot, L.L.C. (“HCCL”), hired HGM and
H. Gordon Myrick, Jr., as general contractor for a planned office building and
hired Shoemake as a sub-contractor. HCCL sued HGM and Myrick in state
court, alleging a variety of claims—including deficiencies in the building’s dry-
wall that HGM attributed to Shoemake’s negligence.
      Pursuant to its agreement with HGM, Shoemake purchased a policy pro-
viding commercial general liability coverage but excluding “‘property damage’
to ‘your work.’” An endorsement added HGM as “an additional insured only with
respect to liability for ‘bodily injury’, ‘property damage’ or ‘personal and adver-
tising injury’ caused, in whole or in party, by . . . [y]our acts or omissions . . . .”
      State Auto sought a declaratory judgment that it was not required to pro-
vide coverage or defend HGM in the state court action. The district court denied
summary judgment to State Auto and found that “the endorsement for addi-
tional insureds modified the original policy to create coverage for [HGM] for any
liability resulting from Shoemake’s work.” On State Auto’s unopposed motion,
the court entered final judgment pursuant to Federal Rule of Civil Procedure
54(b) and dismissed State Auto’s claims.


                                          II.
        We review a summary judgment de novo, “using the same stan-
      dard as that employed by the district court under Rule 56.” Kerstet-
      ter v. Pac. Scientific Co., 

, 435 (5th Cir. 2000). Sum-
      mary judgment is appropriate “if the movant shows that there is no

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                                          No. 13-60001

          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).

Newman v. Guedry, 

, 761 (5th Cir. 2012), petition for cert. filed
(June 11, 2013) (No. 12-1437).


                                                III.
          Mississippi law governs this diversity action. “The interpretation of an
insurance policy is a question of law, not one of fact.” Noxubee Cnty. Sch. Dist.
v. United Nat. Ins. Co., 

, 1165 (Miss. 2004). Where “the provi-
sions of [a] policy . . . are plain and unambiguous, [] they should be construed as
written.” Paul Revere Life Ins. Co. v. Prince, 

, 419 (Miss. 1979).
“The initial question of whether [a] contract is ambiguous is a matter of law.”
Lamb Const. Co. v. Town of Renova, 

, 1383 (Miss. 1990).
          “If a court determines that ambiguity inheres in the policy language,” Mis-
sissippi law “requires the court to construe ambiguous terms in favor of the poli-
cyholder.”1 “Ambiguity arises when a term or provision is susceptible to more
than one reasonable meaning, but can also result from ‘internal conflict’ between
policy provisions that renders uncertain the meaning of the policy as a whole.”2


                                                IV.
          State Auto contends that the policy’s denial of coverage to primary insured
Shoemake for “‘property damage’ to ‘your work’” precludes HGM, as additional
insured, from receiving coverage based on Shoemake’s negligence. HGM claims
coverage based on the endorsement, which “modifies” the policy, adds HGM as

          1
       Leonard v. Nationwide Mut. Ins. Co., 

, 429 (5th Cir. 2007) (citing J&W
Foods Corp. v. State Farm Mut. Auto. Ins. Co., 

, 552 (Miss.1998)).
          2
              

Bureau Mut. Ins. Co. v. Walters, 

, 769 (Miss.
2005)).

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                                        No. 13-60001

additional insured, and expressly provides coverage for “‘property damage’ . . .
caused . . . by . . . [y]our”—that is, Shoemake’s3—“acts or omissions . . . .”
       State Auto observes that an additional insured generally stands in shoes
no larger than those worn by the primary policyholder.4 In this case, however,
the endorsement extends to HGM—coverage for property damage caused by
Shoemake’s acts—what the policy denies to Shoemake. Considering the relevant
provisions together, we find ambiguity arising from internal conflict, so we con-
strue the ambiguous terms in favor of coverage. See 

.
       The judgment is AFFIRMED.




       3
        The policy provides that “you” and “your” refer to Shoemake, and nothing in the
endorsement modifies that definition. We thus conclude that “[y]our acts,” as described in the
endorsement, denotes Shoemake only. See Nat’l Union Fire Ins. Co. v. Liberty Mut. Ins. Co.,
234 F. App’x 190, 193 (5th Cir. 2007) (“tak[ing] as a given that ‘you’” refers only to the primary
insured).
       4
         See, e.g., Mass. Tpk. Auth. v. Perini Corp., 

, 813 (Mass. 1965) (“The
naming of additional insureds does not extend the nature of the substantive coverage origin-
ally given by the policy but merely gives to other persons the same protection afforded to the
principal insured.”).

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