Filed: Jul. 08, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D REVISED JULY 8, 2005 July 7, 2005 In the Charles R. Fulbruge III Clerk United States Court of Appeals for the Fifth Circuit _ m 04-60707 _ ANGELA WHIDDON, MINOR BY AND THROUGH ANGELA WHIDDON, MOTHER AND GENERAL GUARDIAN, Plaintiff-Appellee, VERSUS FEDERATED MUTUAL INSURANCE COMPANY, ET AL., Defendants, FEDERATED MUTUAL INSURANCE COMPANY, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Mississi
Summary: United States Court of Appeals Fifth Circuit F I L E D REVISED JULY 8, 2005 July 7, 2005 In the Charles R. Fulbruge III Clerk United States Court of Appeals for the Fifth Circuit _ m 04-60707 _ ANGELA WHIDDON, MINOR BY AND THROUGH ANGELA WHIDDON, MOTHER AND GENERAL GUARDIAN, Plaintiff-Appellee, VERSUS FEDERATED MUTUAL INSURANCE COMPANY, ET AL., Defendants, FEDERATED MUTUAL INSURANCE COMPANY, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Mississip..
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United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JULY 8, 2005
July 7, 2005
In the Charles R. Fulbruge III
Clerk
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-60707
_______________
ANGELA WHIDDON,
MINOR BY AND THROUGH ANGELA WHIDDON, MOTHER AND GENERAL GUARDIAN,
Plaintiff-Appellee,
VERSUS
FEDERATED MUTUAL INSURANCE COMPANY, ET AL.,
Defendants,
FEDERATED MUTUAL INSURANCE COMPANY,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Mississippi
m 2:03-CV-435
__________________
Before SMITH, DENNIS, and PRADO, liability policy and an umbrella liability policy.2
Circuit Judges.
In the instant federal declaratory judgment
*
JERRY E. SMITH, Circuit Judge: action, the parties filed cross-motions for sum-
mary judgment. Federated maintained that
Federated Mutual Insurance Company neither the primary commercial liability policy
(“Federated”) appeals a summary judgment in nor the umbrella liability policy issued to the
favor of Kassie Orr, through her legal repre- insured provided coverage for Orr’s injuries;
sentative Angela Whiddon, in this declaratory Orr claimed that both policies provided cover-
judgment action involving disputed issues of age.
insurance coverage. Finding no error, we
affirm. The district court entered partial summary
judgment in favor of Federated on the ground
I. that damages for Orr’s injuries did not come
Catron Oil, Inc. (“Catron”), the insured, within its coverage obligation under the pri-
owns and operates a gas station and conven- mary commercial liability policy; but the dis-
ience store in Hattiesburg, Mississippi, and trict court also granted a partial summary
sold beer to two minors in violation of state judgment in favor of Orr on the ground that
law.1 While a passenger in a vehicle driven by damages for her injuries did come within Feder-
one of those minors, Orr was severely injured ated’s coverage obligation under the additional
when the driver, under the influence of alco- liability coverage provisions of the umbrella
hol, lost control and crashed into a tree. Orr, policy. Federated appeals the summary judg-
through her legal representative, sued Catron ment in favor of Orr.
in Mississippi state court, asserting dram shop
liability. II.
We review a summary judgment and a
On behalf of its insured, Federated executed district court’s interpretation of the relevant
a settlement with Orr pursuant to which it paid
the per-occurrence policy limit under Catron’s
2
liquor liability policy and further agreed to pay Orr filed the declaratory judgment action
any sums ultimately determined, in a parallel against Federated and Catron in state court, seek-
declaratory judgment action in federal court, ing a declaration that the damages owed by Catron
to be covered by either or both of Catron’s for her injuries were covered by its two additional
other two insurance policies underwritten by insurance policies. Federated removed the action
Federated, which were a primary commercial to federal district court on the basis of diversity
jurisdiction and, in support of which, maintained
that Catron, a Mississippi corporation, had been
improperly joined as a defendant, and thus moved
the district court to realign Catron as a plaintiff,
* thereby creating complete diversity of citizenship.
Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published Orr initially opposed the motion and moved for
and is not precedent except under the limited cir- remand but, as part of the settlement of the
cumstances set forth in 5TH CIR. R. 47.5.4. underlying tort suit, agreed to confess the re-
alignment issue, thereby enabling the declaratory
1
See MISS. CODE ANN. § 67-3-53 (Rev. 2001). judgment action to proceed in federal court.
2
insurance policies de novo, applying the same B.
standards as did the district court. Am. Guar. The district court then turned its attention
& Liab. Ins. Co. v. 1906 Co., 129 F.3d 802, to whether there is additional coverage for
805 (5th Cir. 1997); Am. States Ins. Co. v. Orr’s injuries under the umbrella policy, which
Nethery,
79 F.3d 473, 475 (5th Cir. 1996). provides two distinct types of coverage: (1)
“Under Mississippi law, courts interpret insur- “excess liability coverage” and (2) “additional
ance policies according to contract law. This liability coverage.” The umbrella policy de-
interpretation is limited to the written terms of fines the insurer’s obligation for “excess liabil-
the policy. If the policy is unambiguous, its ity coverage” as follows:
terms must be given their plain meaning and
enforced as written.”
Nethery, 79 F.3d at 475 Except as excluded under the underlying in-
(citations omitted).3 surance, we will pay on behalf of the in-
sured those sums that the insured becomes
III. legally obligated to pay as damages that are
At the time Orr sustained her injuries, Ca- covered under the underlying insurance:
tron had three insurance policies underwritten (a) because of bodily injury . . . (b) which
by Federated: (1) a liquor liability policy; (2) a are in excess of the applicable insurance
primary commercial liability policy; and (3) an limit.
umbrella liability policy. In the underlying tort
suit, as we explained, Orr, and Federated on In contrast, the umbrella policy defines the
behalf of Catron, settled for the per-occur- insurer’s obligation for “additional liability
rence limit on the liquor liability policy. In this coverage” as follows:
declaratory judgment action, then, the question
before the district court was whether there is Except as excluded in Section II, we will
additional coverage for Orr’s injuries under pay on behalf of the insured those sums that
either or both the primary commercial liability the insured becomes legally obligated to
policy and the umbrella liability policy. pay as damages from an occurrence during
the policy period arising from . . . the
A. “products-completed operations hazard”
The district court concluded that Orr’s in- anywhere in the world.
juries were not covered by the insured’s pri-
mary commercial liability policy because that Critically, in section II, captioned “Exclu-
policy contains an exclusion for bodily injury sions,” the umbrella liability policy treats these
for which the insured may be held liable by two types of coverageSSexcess liability and
reason of the sale of alcohol to a minor. Orr additional liabilitySSdifferently. As to excess
does not cross-appeal this holding. coverage, the umbrella policy provides that
“the exclusions in the underlying insurance
apply.” Thus, the exclusions in the other
policies limit Federated’s coverage obligation
3
See also Aero Int’l, Inc. v. United States Fire for excess liability. As to additional liability
Ins. Co., 713 F.2d 1106, 1109 (5th Cir. 1983) (ap- coverage, however, there are thirteen enum-
plying Mississippi law); J & W Foods Corp. v. erated exclusions, none of which is applicable
State Farm Mut. Auto Ins. Co.,
723 So. 2d 550, here or claimed to be by Federated.
552 (Miss. 1998).
3
The umbrella policy defines “products- cifically enumerated, and none applies here.
completed operations hazard,” for which Thus, as the district court properly recognized,
Federated owes additional liability coverage to the outcome-determinative question of policy
Catron, as follows: interpretation is whether the injuries sustained
by Orr, for which Catron owes damages, come
[A]ll bodily injury and property damage oc- within the umbrella policy’s additional liability
curring away from premises you own or coverage for “products-completed operations
rent and arising out of “your product” or hazard”SSi.e., whether the accident and result-
“your work” except (a) products that are ing injuries “aris[e] out of” the insured’s
still in your physical possession; or “work” or “product” as those terms are de-
(b) work that has not yet been completed fined in the policy.
or abandoned.
a.
And the umbrella policy defines “your prod- The district court properly answered this
uct” as “any goods or products, other than real question in favor of coverage. As a threshold
property, manufactured, sold, handled, distrib- matter, there is no dispute that Orr’s personal
uted or disposed by you”; “your work,” is de- injuries constitute the requisite “bodily injury”
fined, in part, as “work or operations per- or that those injuries were sustained “away
formed by you or on your behalf.” from premises” owned or rented by the in-
sured. Nor is there any genuine dispute that
1. the alcohol sold at the convenience store qual-
The district court first considered whether ifies as “your product,” which the policy de-
the umbrella policy provides coverage for fines to include “any goods or products . . .
Orr’s injuries under its excess liability cover- sold by” the insured. Similarly, the policy de-
age provision. The court correctly concluded fines “your work” as “work or operations per-
that it does not: Because the umbrella policy formed by you or on your behalf,” thus plainly
provides that, as far as excess liability is con- encompassing the sale of regularly-stocked
cerned, the exclusions in the underlying insur- products such as beer. And the injuries sus-
ance apply, the umbrella policy incorporates tained by Orr “aris[e] out of” the sale of beer
the exclusion in the primary commercial lia- in typical but-for causation terms, as is the
bility policy for injuries sustained as a result of case with ordinary dram-shop liability.4
liquor sales to a minor; and thus there is no
excess liability coverage for Orr’s injuries. b.
In fact, Federated does not dispute that the
2.
In contrast to Federated’s excess liability
coverage obligation, however, its obligation 4
Cf. Am. Guar. & Liab. Co., 129 F.3d at 807
for additional liability coverage under the um- (“The phrase ‘arising out of’ is ordinarily under-
brella policy is not subject to the exclusions in stood to mean ‘originating from,’ ‘having its origin
the underlying policies—including, therefore, in,’ ‘growing out of,’ or ‘flowing from.’”);
id.
the dram-shop liability exclusion in the com- (noting that in the insurance context Mississippi
mercial liability policy. Instead, as we indi- law interprets the phrase “arising out of” to require
cated, the only applicable exclusions are spe- a “causal connection” between the injuries alleged
and the objects made subject to the phrase”).
4
damages owed by Catron for Orr’s injuries In rejecting this contention, the district rea-
“aris[e] out of” the sale of the insured’s prod- soned as follows:
uct. Rather, Federated maintains that “[t]he
mere fact that a claim can be said to ‘arise out While the terms of the “product-completed
of’ the sale of an insured’s ‘product’ in terms operations hazard” coverage is certainly
of a but-for causation tort analysis, does not broad enough to include strict liability
result in the application of ‘Products Hazard’ claims based on the sale of defective prod-
provision to afford the Claimant with a right of ucts, the question is whether that coverage
recovery in this case.” Instead, Federated is restricted to claims based on that theory
argues that the umbrella policy’s grant of ad- of liability. The coverage might certainly
ditional liability coverage for products-com- have contained such a limitation, but I see
pleted operation hazards should be read as nothing in the terms of the policy itself that
granting coverage only for claims based on a limits the operation of this provision to
defective products theory of liability; Feder- strict liability in tort for the sale of a defec-
ated cites various cases from jurisdictions oth- tive product. As written, the “product
er than Mississippi in support of this construc- completed operations hazard” affords cov-
tion.5 erage, up to the limits of the policy, for
“those sums that insured becomes legally
obligated to pay as damages,” without re-
5
Like the district court, we find the cases cited gard to the theory of recovery upon which
by Federated from jurisdictions other than Mis- an injured party may rely.
sissippi to be of limited utility. First, though Fed-
erated is correct that courts in other jurisdictions
We agree: Nothing in the terms of the
indeed have adopted, in some form, the position it
umbrella policy limits its grant of additional
urges here, those courts have done so in the context
of interpreting products-completed operations liability coverage to claims based on a
hazard exclusions (as opposed to an affirmative defective-products theory of recovery. To the
grant of coverage as is the case here) and thus were contrary, the policy grants coverage in plain
generally bound to construe the exclusions and unambiguous terms: “all bodily injury and
narrowly. See, e.g., Lessak v. Metro. Cas. Ins. property damage occurring away from pre-
Co., 151 N.E.2d 730, 735 (Ohio 1958); Gen. Ins.
Co. of Am. v. Crawford,
635 S.W.2d 98, 102-03
(Tenn. 1982); Farm Bureau Mut. Ins. Co. v. Lyon, Third, each court tasked with interpreting an
528 S.W.2d 932, 937 (Ark. 1975). insurance policy must consider the specific policy
language at issue, and thus reported cases cited by
Second, there is contrary authority from various litigants for general propositions often turn out to
other jurisdictions that squarely rejects the de- involve materially different policy language. See
fective-products limitation as beyond the text of the Brazas, 220 F.3d at 6. Thus, for example, al-
typical products-completed operations hazard though Federated relies heavily on Scarborough v.
exclusions. See, e.g., Brazas Sporting Arms, Inc. N. Assurance Co. of Am.,
718 F.2d 130 (5th Cir.
v. Am. Empire Surplus Lines Ins. Co.,
220 F.3d 1, 1983) (in which we held, applying Louisiana law,
5-6 & n.2 (1st Cir. 2000) (collecting cases); Cob- that a products hazard exclusion did not exclude
bins v. Gen. Accident Fire & Life Assurance coverage of a claim based on a negligent failure to
Corp.,
290 N.E.2d 873, 877 (Ill. 1972); Hagen warn theory), the specific exclusionary provision
Supply Corp. v. Iowa Nat. Mut. Ins. Co., 331 F.2d we construed included language directed squarely
199, 200-04 (8th Cir. 1964). at defective products claims. See
id. at 133.
5
mises you own or rent and arising out of ‘your of an umbrella insurance policy, the very pur-
product’ or ‘your work.’” pose of which is to provide coverage beyond
that provided by underlying insurance policies,
Limiting this affirmative grant of coverage it makes little sense to point to another policy
to injuries based on defective products would that provides coverage as a reason for why
thus require importing terms into the policy there cannot be additional coverage under the
that are plainly not there.6 We reject Fed- plain terms of the umbrella policy.
erated’s invitation to do so, for it is fundamen-
tally inconsistent with our duty faithfully to ap- In sum, the terms of the additional liability
ply the governing principles of Mississippi grant of coverage in the umbrella policy, when
contract law, first among them being the rule given their plain and ordinary meaning, do not
that the terms of an insurance policy “must be admit of any limitation of coverage (and thus
given their plain meaning and enforced as writ- ultimately of indemnity) for claims based only
ten.” Nethery, 79 F.3d at 475 (citations omit- on a defective-products theory of liability. Ac-
ted) (emphasis added).7 Thus, although Feder- cordingly, the judgment is AFFIRMED.
ated may well have intended to limit its cover-
age obligation for additional liability to third-
party claims based on a defective-products
theory of recovery, the granting provision in
the umbrella policy does not do so.
c.
Federated suggests that because Orr’s dam-
ages claim is the type of claim the insured’s
liquor liability policy was “specifically de-
signed to cover,” coverage should not also be
found under the additional liability coverage
grant in the umbrella policy. But in the context
6
Federated practically admitted as much at oral
argument when its counsel repeatedly admonished
the panel not “slavishly [to] follow the text.” Cf.
Brazas, 220 F.3d at 6 (“[I]n order to limit the . . .
exclusion provision to defective products, we
would need to read into the text a requirement that
is simply not there. . . . Where, as here, the
language of the exclusion provision is unambig-
uous, the text should be given its plain meaning. In
this case, the plain meaning of the exclusion is that
it applies to all product-related injuries.”).
7
This is especially so where, as here, the in-
surer demonstrated elsewhere that it knew how to
exclude the disputed damages if it so desired.
6
