NOT RECOMMENDED FOR PUBLICATION
                                    File Name: 21a0475n.06

                                                   No. 21-5129


                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT

                                                          )                                        FILED
 JOSHUA DONALD TARTER,                                                                       Oct 25, 2021
                                                          )
                                                          )                             DEBORAH S. HUNT, Clerk
             Plaintiff-Appellant,
                                                          )
                                                          )
 v.                                                             ON APPEAL FROM THE UNITED
                                                          )
                                                          )     STATES DISTRICT COURT FOR THE
 NAVIGATORS INSURANCE                                           EASTERN DISTRICT OF KENTUCKY
                                                          )
 COMPANY,
                                                          )
                                                          )
             Defendant-Appellee.
                                                          )




Before: DAUGHTREY, COLE, and CLAY, Circuit Judges.

         MARTHA CRAIG DAUGHTREY, Circuit Judge.                              Defendant Navigators Insurance

Company sought to resist paying the costs of defending its insured, plaintiff Joshua Donald Tarter,

in a 2018 lawsuit filed in the United States District Court for the Eastern District of Kentucky,

C-Ville Fabricating, Inc., et al. v. Joshua Donald Tarter, et al., No. 5:18-cv-00379-KKC (E.D.

Ky. Mar. 26, 2019). Relying upon what is known as the “insured versus insured exclusion” in its

Directors and Officers Liability policy, Navigators claimed that it had no duty to defend Joshua1

in what can be described only as a high-stakes family feud. Joshua then sued Navigators, both

alleging that the company breached its contract with him and seeking a declaration that Navigators

was obligated to defend and indemnify him in the underlying litigation. The district court,


         1
           Given the presence of so many Tarter family members in these connected lawsuits, the first names of Tarters
will be used to lessen any confusion.
Case No. 21-5129, Tarter v. Navigators Ins. Co.


exercising its diversity jurisdiction, examined the relevant provisions of the applicable insurance

policy and concluded that Navigators’ position in the dispute was the sounder one. The district

court thus granted the company’s motion to dismiss the lawsuit. We agree with the district court’s

reasoning and affirm.

                                        BACKGROUND

       In 1945, members of the Tarter family founded Tarter Gate, a business that made and sold

wooden gates in central Kentucky. Over the years, the company expanded and diversified by

manufacturing both farm and ranch equipment. From that relatively humble start, there now “are

a number of entities under common ownership and control that combine with other entities to carry

on the family business.” The various Tarter businesses, referred to collectively as the Tarter

Companies, include C-Ville Fabricating, Inc., d/b/a Tarter Industries; Tarter Management

Company, Inc.; Tarter Gate Company, LLC, operating under the assumed name of Tarter Farm &

Ranch Equipment; and Tarter Tube, LLC.

       Eventually, ownership of the Tarter Companies was consolidated in the hands of two Tarter

brothers, David and Donald, and their respective wives, Anna Lou (now Anna Lou Tarter Smith)

and Joy. David and Anna Lou had two children, LuAnn (now LuAnn Tarter Coffey) and Douglas.

Donald and Joy had three children, Keith, Joshua, and Nell (now Nell Tarter Duggins). Together,

Keith, Joshua, and Nell own 50% of the Tarter Companies, and Anna Lou, LuAnn, and Douglas

own the remaining 50%, with Anna Lou owning the largest individual share at 25%. Anna Lou

also serves as a director of C-Ville Fabricating and Tarter Management, as well as serving as a

manager of Tarter Gate and Tarter Tube. Joshua also “had management responsibilities in relation

to all Tarter Companies.”




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Case No. 21-5129, Tarter v. Navigators Ins. Co.


         Any semblance of family cooperation ended, however, when Joshua, together with Thomas

Gregory and Xiaofeng Chen, formed a Chinese shell company, Hong Kong QMC Industry

Company, Ltd. According to allegations in a lawsuit that C-Ville Fabricating, Anna Lou, LuAnn,

and Douglas eventually filed against Joshua, Gregory, and QMC, the shell company was

responsible not only for selling supplies to the Tarter Companies from China at grossly inflated

prices, but also for embezzling trade secrets from the Tarter Companies. Specifically, that

complaint alleged that Joshua “used [his] position[ ] with the Tarter Companies to overcharge the

Tarter Companies by, at least, $20,000,000 over the term of the scheme from one supplier.”

         Facing that lawsuit, Joshua called upon Navigators to defend him. The insurance company

declined to do so, however, noting that its Directors and Officers Liability policy specifically

excluded from coverage (including the insurer’s duty to defend):

         [A]ny Claim2 made against any Insured . . . by or on behalf of any Insured or any
         security holder of the Company; provided, however, that this exclusion shall not
         apply to any Claim . . . brought by any security holder of the Company, whether
         directly or derivatively, if the security holder bringing such Claim is acting totally
         independently of, and without the solicitation, assistance, active participation or
         intervention of, the Company or any Insured Person[.]3

In large part, Navigators based its decision on the policy’s broad definition of the word “Claim,”

which, in pertinent part, was defined to mean “a civil . . . proceeding brought against any Insured

seeking monetary or non-monetary relief and commenced by the service of a complaint . . . .”

Because at least Anna Lou, an insured party, had commenced a civil proceeding against another

insured party (Joshua) by service of a complaint, Navigators claimed that it had no duty to defend

Joshua in the lawsuit despite the presence of any uninsured party as an additional plaintiff.



         2
           Bolded terms in the Directors and Officers Liability policy were defined specifically elsewhere in the
insurance contract.
         3
           The first clause of the quoted policy provision is known as the “insured versus insured exclusion,” and the
proviso is known as the “assistance exception” to that exclusion.

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Case No. 21-5129, Tarter v. Navigators Ins. Co.


       Latching on to the fact that one of the named plaintiffs in the C-Ville Fabricating action

was not an insured party, Joshua asserted that the policy’s “insured versus insured exclusion” was

not applicable. Instead, he argued that the “allocation provision” was included in the policy to

cover just such a situation and required Navigators to provide him with a defense to the suit.

Pursuant to that “allocation provision”:

       If a Claim made against any Insured includes both covered and uncovered matters,
       or is made against any Insured and others, the Insureds and the Insurer recognize
       that there must be an allocation between Loss and uninsured damages, settlement
       amounts and other liabilities in connection with such Claim. The Insureds and the
       Insurer will use their best efforts to agree upon a fair and proper allocation. If no
       agreement can be reached, the Insurer will advance Costs of Defense based on what
       it believes is a fair and proper allocation until such time as the issue can be resolved.

       In addressing the parties’ disagreements, the district court examined cases from other

jurisdictions that have resolved similar insurance-coverage disputes. The district court found most

helpful and instructive the opinion of the Eighth Circuit Court of Appeals in Jerry’s Enterprises,

Inc. v. U.S. Specialty Insurance Co., 

 (8th Cir. 2017). In Jerry’s Enterprises, the

court was confronted, as are we, with a lawsuit brought against an insured person by both insured

and uninsured plaintiffs. Moreover, the policy at issue in Jerry’s Enterprises, like the policy here,

contained an “insured versus insured exclusion” with an “assistance exception,” as well as an

allocation clause and a broad definition of the term “claim.” Affirming the district court’s grant

of summary judgment to the insurance company on Jerry’s Enterprises’ demand for indemnity, the

Eighth Circuit reasoned:

       A claim is not afforded its ordinary meaning under the insurance policy. Rather,
       the policy defines Claim as a civil proceeding commenced by service of a
       complaint, i.e., the entirety of the . . . lawsuit. U.S. Specialty, therefore, need only
       show that the exclusion clause applied to the lawsuit as brought. It has done so.
       We have no room under the language of the exclusion clause to apply the clause to
       some parts of a lawsuit but not others.




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Case No. 21-5129, Tarter v. Navigators Ins. Co.

. Moreover, the Eighth Circuit noted that “the allocation clause does not restore coverage

for any part of the” lawsuit, and “applying the allocation clause to the . . . claim would render the

assistance exception superfluous, effectively reading that exception out of the contract.” 

(citation omitted).

                                          CONCLUSION

       The district court’s grant of Navigators’ motion to dismiss for failure to state a claim in

this case was based on reasoning identical to that used by the Eighth Circuit in Jerry’s Enterprises.

In issuing its opinion in this litigation, the district court diligently considered relevant caselaw and

ably articulated the reasons why judgment should be entered in favor of Navigators. Given the

relatively unique confluence of factors that led to the filing of this lawsuit, we believe that our

issuance of a full written opinion would be duplicative and also would serve no useful precedential

purpose. We thus AFFIRM the judgment of the district court for the reasons set forth in that

court’s Order and Opinion filed on January 15, 2021. Tarter v. Navigators Ins. Co., No. 5:20-240-

KKC, 

 (E.D. Ky. Jan. 15, 2021).




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