The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ALLSTATE VEHICLE AND PROPERTY
INSURANCE COMPANY, and
ALLSTATE INDEMNITY COMPANY,
Plaintiffs,
Civil Action No. 1:21CV100
v. (Judge Keeley)
DONNA L. PIXLER-DAVIS, DELBERT L. DAVIS,
ALBERT CLAUDIO, JR., Executor of the
Estate of Pamela A. Ciuni,
ALBERT CLAUDIO, III, and
STEVEN A. CIUNI, Parent and Next Friend
of A.C.C., a minor,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING SUMMARY JUDGMENT IN FAVOR OF THE PLAINTIFFS
Pending before the Court is the motion for summary judgment
filed by the plaintiffs, Allstate Vehicle and Property Insurance
Company and Allstate Indemnity Company (collectively, “Allstate”)
(Dkt. No. 30). Also pending is the cross-motion for summary
judgment filed by the defendants, Albert Claudio, Jr. (“Claudio,
Jr.”), Albert Claudio, III (“Claudio III”), and Steven A. Ciuni
(collectively, “the Claudio defendants”) (Dkt. No. 32).1 For the
reasons that follow, the Court GRANTS the plaintiffs’ motion and
DENIES the defendants’ cross-motion.
1 In the alternative, the Claudio defendants moved the Court to abstain
from exercising jurisdiction (Dkt. No. 32).
ALLSTATE VEHICLE & PROP. INS. 1:21CV100
CO. v. PIXLER-DAVIS
MEMORANDUM OPINION AND ORDER
GRANTING SUMMARY JUDGMENT IN FAVOR OF THE PLAINTFFS
I. Background
This case arises out of a motor vehicle accident in Westover,
West Virginia, that resulted in the death of a pedestrian, Pamela
A. Ciuni (“Ciuni”). Subsequently, Claudio, Jr., filed a wrongful
death lawsuit in state court against Donna L. Pixler-Davis
(“Pixler-Davis”) and Delbert Davis (“Davis”) (collectively, “the
Davises”), the owners of the property on which the accident
occurred. Claudio, III, and Steven A. Ciuni also sued the Davises
for damages arising out of Ciuni’s death.
For purposes of summary judgment, courts “view the evidence
in the light most favorable to the non-moving party” and refrain
from “weighing the evidence or making credibility determinations.”
Lee v. Town of Seaboard, 863 F.3d 323, 327 (4th Cir. 2017) (quoting
Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 568-69 (4th
Cir. 2015)). Here, however, the underlying facts are largely
undisputed.
Near the end of May 2020, prior to the motor vehicle accident,
Pixler-Davis orally agreed to allow Duda’s Farm, Inc. (“Duda’s”)
to operate a seasonal produce stand on her property located at 707
Fairmont Avenue, Morgantown, West Virginia (Dkt. No. 33-1 at 52-
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53). In exchange for the right to operate the stand, Duda’s orally
agreed to pay Pixler-Davis $400 per month. Id. Shortly thereafter,
Duda’s began operating its stand on the property. Id. at 8.
On August 10, 2020, Jerrey L. Hoyt (“Hoyt”) and the decedent,
Ciuni, separately drove to Duda’s produce stand (Dkt. No. 1 at ¶¶
18, 21). Ciuni was accompanied by her grandson, A.C.C., a minor,
and Claudio III. Id. at ¶ 21. After Hoyt made his purchase and as
he was attempting to leave, he crashed his car into the stand,
seriously injuring Ciuni. Id. Later that day, Ciuni died from the
injuries she sustained. Id. at ¶ 20. At the time of the accident
and her death, the Davises were insured under three (3) separate
Allstate insurance policies, specifically two House and Home
Policies and one Umbrella Policy (Dkt. Nos. 30-5, 30-6, 30-7).
Following the accident, the defendants filed three lawsuits
in state court. First, Claudio, Jr., Ciuni’s long-time domestic
partner and the executor of her estate, filed a wrongful death
suit alleging that Duda’s, Pixler-Davis, and Hoyt were negligent
in their actions leading up to Ciuni’s death (Dkt. No. 1-1). And
because Claudio III, Ciuni’s “equitably adopted son,” had
witnessed the accident, he too sued Duda’s, Pixler-Davis, and Hoyt,
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GRANTING SUMMARY JUDGMENT IN FAVOR OF THE PLAINTFFS
alleging negligent infliction of emotional distress (Dkt. No. 1-
2). Finally, because A.C.C., Ciuni’s grandson, also had witnessed
the accident, Steven A. Ciuni, A.C.C.’s father, filed suit, as
parent and next friend of A.C.C., against Duda’s, Pixler-Davis,
and Hoyt, asserting negligent infliction of emotional distress
(Dkt. No. 1-3).
After the filing of these lawsuits against the Davises,
Allstate sought a declaratory judgment in this Court that the three
(3) insurance policies owned by the Davises do not provide coverage
for the defense or indemnification of the claims asserted in the
state court lawsuits (Dkt. No. 1). One of the House and Home
Policies at issue (Policy No. 952 746 402) covered the Davises’
property located at 707 Fairmont Road, Morgantown, West Virginia
26505, where the accident occurred. The other House and Home Policy
(Policy No. 977 792 910) covered property owned by the Davises
located at 508 Wheeling Street, Westover, West Virginia 26501. In
general, both House and Home Policies provide family liability
protection and guest medical protection, but they also include
several exclusions relevant to the coverage questions raised here.
The third policy, the Umbrella Policy (Policy No. 952 961 488)
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MEMORANDUM OPINION AND ORDER
GRANTING SUMMARY JUDGMENT IN FAVOR OF THE PLAINTFFS
issued by Allstate Indemnity Company, generally provides coverage,
subject to certain exclusions, above the limits in the House and
Home Policies, and “drops down” to provide primary coverage in
specific instances.
In its motion for summary judgment, Allstate argues that these
three (3) policies exclude coverage for losses resulting from the
August 10, 2020 motor vehicle accident because the Davises were
engaged in business activity (Dkt. No. 31). In their cross-motion,
the Claudio defendants argue that Allstate’s policies are
ambiguous and, under West Virginia law, should be construed in
their favor (Dkt. No. 32). The Davises make a similar argument
(Dkt. No. 33). The motions are now fully briefed and ripe for
decision.
II. Jurisdiction
Before taking up the parties’ coverage dispute, the Court
first addresses an alternative argument raised by the Claudio
defendants, that the Court should either abstain from exercising
its jurisdiction in this case or issue a stay pending the outcome
of the state court litigation (Dkt. No. 32 at 20). Allstate urges
the Court to decide the coverage issues (Dkt. No. 34 at 2-6).
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MEMORANDUM OPINION AND ORDER
GRANTING SUMMARY JUDGMENT IN FAVOR OF THE PLAINTFFS
The Declaratory Judgment Act authorizes district courts to
“declare the rights and other legal relations of any interested
party seeking such declaration.” 28 U.S.C. § 2201. In the Fourth
Circuit, “a declaratory judgment action is appropriate ‘when the
judgment will serve a useful purpose in clarifying and settling
the legal relations in issue, and . . . when it will terminate and
afford relief from the uncertainty, insecurity, and controversy
giving rise to the proceeding.’” Centennial Life Ins. Co. v.
Poston, 88 F.3d 255, 256 (4th Cir. 1996) (citing Aetna Cas. & Sur.
Co. v. Quarles, 92 F.2d 321, 324 (4th Cir. 1937) (internal citation
omitted)).
In this regard, district courts should consider four factors
in considering whether to exercise jurisdiction:
(i) the strength of the state’s interest in
having the issues raised in the federal
declaratory action decided in the state
courts; (ii) whether the issues raised in the
federal action can more efficiently be
resolved in the court in which the state
action is pending; [ ](iii) whether permitting
the federal action to go forward would result
in unnecessary “entanglement” between the
federal and state court systems, because of
the presence of “overlapping issues of fact or
law”[; and (iv) ] whether the declaratory
judgment action is being used merely as a
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MEMORANDUM OPINION AND ORDER
GRANTING SUMMARY JUDGMENT IN FAVOR OF THE PLAINTFFS
device for “procedural fencing”—that is, “to
provide another forum in a race for res
judicata” or “to achiev[e] a federal hearing
in a case otherwise not removable.”
Poston, 88 F.3d at 257 (citing Nautilus Ins. Co. v. Winchester
Homes, Inc., 15 F.3d 371, 377 (4th Cir. 1994), rev’d on other
grounds, 88 F.3d 255 (4th Cir. 1996)) (alterations in original).
Here, all of the Nautilus factors favor the Court’s exercise
of its jurisdiction. In the first place, West Virginia has a weak
interest in deciding this case as “the contractual coverage issue
will not be decided by the state tort case, and [Allstate] is not
a party to the state case.” Penn-America Ins. Co. v. Coffey, 368
F.3d 409, 414 (4th Cir. 2004). “Moreover, . . . the State’s
interest is ‘not particularly significant’ where,” as here, “any
state law issues are standard and ‘unlikely to break new ground.’”
Id.
As to the final three factors, the critical point is that the
coverage issues are not part of the state actions. Consequently,
a decision here would not unnecessarily entangle the Court in the
pending state proceedings. It also would be more efficient to
decide the coverage question than to defer that decision until the
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MEMORANDUM OPINION AND ORDER
GRANTING SUMMARY JUDGMENT IN FAVOR OF THE PLAINTFFS
conclusion of the state litigation. Nor would a decision by this
Court encourage procedural fencing. The Court’s exercise of
jurisdiction over this matter therefore is proper.
III. Standard of Review
Under Fed. R. Civ. P. 56(a), “[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter of law.” “A dispute is genuine if a reasonable jury could
return a verdict for the nonmoving party,” and “[a] fact is
material if it might affect the outcome of the suit under the
governing law.” Jacobs, 780 F.3d at 568 (quoting 10A Charles A.
Wright et al., Federal Practice & Procedure § 2728 (3d ed. 1998)).
A motion for summary judgment should be granted if the
nonmoving party fails to make a showing sufficient to establish
the existence of an essential element of his claim or defense upon
which he bears the burden of proof. Celotex v. Catrett, 477 U.S.
317, 323 (1986). The existence of a mere scintilla of evidence
supporting the nonmovant’s position is insufficient to create a
genuine issue; rather, there must be evidence on which a jury could
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MEMORANDUM OPINION AND ORDER
GRANTING SUMMARY JUDGMENT IN FAVOR OF THE PLAINTFFS
reasonably find for the nonmovant. Anderson v. Liberty Lobby, 477
U.S. 242, 252 (1986).
IV. Discussion
Under West Virginia law,2 liability insurance policies impose
two main duties on the part of the insurer, the duty to defend and
the duty to indemnify. See, e.g., Aetna Cas. & Sur. Co. v. Pitrolo,
342 S.E.2d 156, 160 (W. Va. 1986); Donnelly v. Transp. Ins. Co.,
589 F.2d 761, 765 (4th Cir. 1978). As a general rule, an insurer’s
duty to defend is triggered when “the allegations in the
plaintiff’s complaint are reasonably susceptible of an
interpretation that the claim may be covered by the terms of the
insurance policy.” Pitrolo, 342 S.E.2d at 160; see also Syl. Pt.
6, Farmers & Mechs. Mut. Ins. Co. of W. Va. v. Cook, 557 S.E.2d
801 (W. Va. 2001).
If any of the claims against the insured might trigger
coverage, the insurer must defend against all the claims asserted.
See Horace Mann Ins. Co. v. Leeber, 376 S.E.2d 581, 584 (W. Va.
2 The parties agree that, pursuant to Erie Railroad Company v. Tompkins,
304 U.S. 64, 78 (1938), the substantive law of West Virginia governs the
interpretation and application of the insurance policies at issue.
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MEMORANDUM OPINION AND ORDER
GRANTING SUMMARY JUDGMENT IN FAVOR OF THE PLAINTFFS
1988) (citing Donnelly, 589 F.2d at 765). Nevertheless, the insurer
need not provide a defense if the claims against the insured are
“entirely foreign to the risk insured against.” Air Force Ass’n v.
Phoenix Ins. Co., No. 89-2317, 1990 WL 12677, at *2 (4th Cir. 1990)
(citing Donnelly, 589 F.2d at 765).
The specific wording of an insurance policy determines
whether it provides coverage for a particular claim. See Beckley
Mech. Inc. v. Erie Ins. Prop. & Cas. Co., 374 F. App’x 381, 383
(4th Cir. 2010); Cherrington v. Erie Ins. Prop. & Cas. Co., 745
S.E.2d 508, 524 (W. Va. 2013). Indeed, “[l]anguage in an insurance
policy should be given its plain, ordinary meaning.” Syl. Pt. 8,
Cherrington, 745 S.E.2d at 511 (internal quotations and citations
omitted). Courts should not endeavor to interpret policy
provisions unless they are unclear or ambiguous. Id. Instead,
courts must give terms and provisions their meaning in the “plain,
ordinary[,] and popular sense, not in a strained or philosophical
sense.” Polan v. Travelers Ins. Co., 192 S.E.2d 481, 484 (W. Va.
1972); see also Syl. Pt. 9, Cherrington, 745 S.E.2d at 511.
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MEMORANDUM OPINION AND ORDER
GRANTING SUMMARY JUDGMENT IN FAVOR OF THE PLAINTFFS
A. House and Home Policies
Allstate first argues that its two House and Home Policies
exclude coverage because the August 10, 2020 accident arose out of
the Davises’ business activity (Dkt. No. 31 at 17-21). The House
and Home Policies include two pertinent types of coverage: (1)
Family Liability Protection – Coverage X; and (2) Guest Medical
Protection – Coverage Y (Dkt. Nos. 30-5 at 46-51, 30-6 at 42-47).
Under Family Liability Protection – Coverage X, “[Allstate] will
pay damages which an insured person becomes legally obligated to
pay because of bodily injury or property damage arising from an
occurrence to which this policy applies, and is covered by this
part of the policy” (Dkt. Nos. 30-5 at 46, 30-6 at 42). However,
Family Liability Protection – Coverage X excludes coverage for
“bodily injury or property damage arising out of the past or
present business activities of an insured person” (Dkt. Nos. 30-5
at 47, 30-6 at 43).
Similarly, under Guest Medical Protection – Coverage Y,
“[Allstate] will pay the reasonable expenses incurred for the
necessary medical, surgical, X-ray and dental services, ambulance,
hospital, licensed nursing and funeral services, and prosthetic
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GRANTING SUMMARY JUDGMENT IN FAVOR OF THE PLAINTFFS
devices, eye glasses, hearing aids, and pharmaceuticals” (Dkt.
Nos. 30-5 at 48, 30-6 at 44). But again, Guest Medical Protection
– Coverage Y excludes coverage for “bodily injury arising out of
the past or present business activities of an insured person” (Dkt.
Nos. 30-5 at 49, 30-6 at 45). It further excludes coverage for
“bodily injury to any person on the insured premises because of a
business activity or professional service conducted there” (Dkt.
Nos. 30-5 at 49, 30-6 at 45).
Each of Allstate’s House and Home Policies defines business
as “any full- or part-time activity of any kind engaged in for
economic gain including the use of any part of any premises for
such purposes” or “the rental or holding for rental of property by
an insured person” (Dkt. No. 30-5 at 27, 30-6 at 23). This
definition applies to both the Family Liability Protection –
Coverage X, and the Guest Medical Protection – Coverage Y.
The facts in this case, when viewed in light of the plain and
ordinary meaning of the business activities exclusion, lead the
Court to conclude that no coverage is available to the defendants
under these two Allstate policies. The Davises agreed to allow
Duda’s to sell produce on a portion of their property in exchange
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GRANTING SUMMARY JUDGMENT IN FAVOR OF THE PLAINTFFS
“for [the] economic gain” of $400 per month rent. Moreover, the
plain and ordinary meaning of rent is “[c]onsideration paid,
usu[ally] periodically, for the use or occupancy of property (esp.
real property).” Rent, Black’s Law Dictionary (11th ed. 2019).
Permitting Duda’s to use a portion of the property in exchange for
a regular payment thus also constituted “the rental . . . of
property.” Accordingly, under either definition of business, the
Davises’ activities plainly qualify as business activities. And
because the House and Home Policies exclude coverage for bodily
injury arising out of the past or present business activities of
an insured person, they do not provide coverage for damages
resulting from the August 10, 2020 motor vehicle accident.3
B. Umbrella Policy
Allstate next contends that the Umbrella Policy issued by
Allstate Indemnity Company does not provide coverage because the
conditions triggering coverage have not been met (Dkt. No. 31 at
21-23). Alternatively, it again argues that the policy excludes
3 Because both House and Home Policies exclude coverage for damages
resulting from the August 10, 2020 motor vehicle accident, the Court
need not decide whether the House and Home Policy for 508 Wheeling
Street, Westover, West Virginia 26501 covered occurrences at the site
of the accident on 707 Fairmont Road, Morgantown, West Virginia 26505.
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GRANTING SUMMARY JUDGMENT IN FAVOR OF THE PLAINTFFS
coverage because the Davises were engaged in a business activity.
Id. The defendants argue that, regardless of the underlying
insurance, the Umbrella Policy provides coverage once losses
surpass the underlying policy limits (Dkt. Nos. 32 at 17-19, 33 at
18-20).
The Umbrella Policy contains the following coverages: (1)
Excess Liability Insurance – Bodily Injury and Property Damage
Coverage XL; and (2) Excess Liability Insurance – Personal Injury
– Coverage XP. Under Excess Liability Insurance – Bodily Injury
and Property Damage Coverage XL, two sections are pertinent to the
coverage dispute here.
Section 1 of Excess Liability Insurance – Bodily Injury and
Property Damage Coverage XL provides:
[Allstate] will pay damages which an insured
person becomes legally obligated to pay
because of bodily injury or property damage
arising out of an occurrence that is both a
loss we cover under Excess Liability Insurance
– Bodily Injury and Property Damage – Section
1 of this policy and a covered loss under your
Required Underlying Insurance policy.
(Dkt. No. 30-7 at 15).
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MEMORANDUM OPINION AND ORDER
GRANTING SUMMARY JUDGMENT IN FAVOR OF THE PLAINTFFS
Section 2 provides:
[Allstate] will pay damages which an insured
person becomes legally obligated to pay
because of bodily injury or property damage
arising only out of:
1. a covered occurrence for which
Required Underlying Insurance is not
required by this policy; or
2. a covered occurrence for which you are
required by this policy to maintain
Required Underlying Insurance but
there is no Required Underlying
Insurance in effect at the time of the
occurrence.
Id. at 16. Section 2 excludes coverage, however, for “any
occurrence arising out of a business or business property.” Id. at
17. The General Provisions of the Umbrella Policy define business
as
a. any full- or part-time activity of any
kind:
1. arising out of or relating to an
occupation, trade or profession of an
insured person; and
2. engaged in by an insured person for
economic gain, including the use of
any part of any premises for such
purposes. . . .
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GRANTING SUMMARY JUDGMENT IN FAVOR OF THE PLAINTFFS
b. the rental or holding for rental of any
property by an insured person.
Id. at 25.
The Required Underlying Insurance provision of the Umbrella
Policy also provides in pertinent part that
[y]ou must maintain at least the Required
Underlying Insurance amount listed on the
Policy Declarations for each residence you
own, maintain or use. This liability coverage
may be provided by either:
1. a separate Comprehensive Personal
Liability policy; or
2. a Homeowners Insurance or similar
package policy.
(Dkt. No. 30-7 at 14). The applicable Required Underlying Insurance
amount listed on the policy declarations is $300,000. Id. at 4.
As the Court has already determined, there is no coverage
under the Required Underlying Insurance, i.e., the House and Home
Policies. The Umbrella Policy therefore does not provide coverage
under Section 1. Moreover, under the plain and ordinary meaning of
Section 2, coverage is only available for an occurrence “for which
Required Underlying Insurance is not required” and “for which you
are required by this policy to maintain Required Underlying
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Insurance but there is no Required Underlying Insurance in effect
at the time of the occurrence.” And because underlying insurance
was required for personal liability coverage in the form of
homeowners insurance and was in effect at the time of the accident,
the Umbrella Policy provides no coverage under Section 2.
Section 2 also specifically excludes coverage for business
activities, including “the rental or holding for rental of any
property by an insured person.” As previously discussed, supra pp.
12-13, permitting Duda’s to use a portion of the property in
exchange for a regular payment plainly constituted “the rental .
. . of property.” Accordingly, the business activities exclusion
precludes coverage under Section 2.
The defendants argue that, even if Allstate is correct, the
Umbrella Policy provides coverage once losses exceed the policy
limits of the Required Underlying Insurance. In support of this
argument, they rely on the Required Underlying Insurance provision
of the Umbrella Policy, which provides that “[i]f the underlying
insurance applicable to the occurrence does not provide at least
the limits required under [the Umbrella Policy], you will be
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responsible for the damages up to the Required Underlying Insurance
amount” (Dkt. No. 30-7 at 14).
But this provision addresses when the Umbrella Policy would
potentially provide coverage if the Required Underlying Insurance
did not provide coverage up to the amount listed on the Umbrella
Policy’s Policy Declarations. Contrary to the defendants’
contention, it does not address whether the Umbrella Policy would
in fact provide coverage above the limits required in the Policy
Declarations. As discussed earlier, the portion of the policy
relevant to that issue is found in Excess Liability Insurance –
Bodily Injury and Property Damage Coverage XL - Sections 1 and 2,
neither of which provides coverage under the circumstances of this
case. Here, Section 1 does not provide coverage because the
Required Underlying Insurance does not provide coverage, and
Section 2 does not provide coverage because specific conditions
were not met or, alternatively, because of the business activities
exclusion.
C. Ambiguity
Despite the plain and ordinary meaning of the House and Home
Policies and the Umbrella Policy, the defendants urge the Court to
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GRANTING SUMMARY JUDGMENT IN FAVOR OF THE PLAINTFFS
find an ambiguity in the policies’ definitions of business and
property (Dkt. Nos. 32 at 13-17, 33 at 13-18), and then to construe
the policies to align with their reasonable expectations (Dkt. No.
33 at 21-23). Policy language is ambiguous if it “is reasonably
susceptible of two different meanings or is of such doubtful
meaning that reasonable minds might be uncertain or disagree as to
its meaning.” Syl. Pt. 1, Prete v. Merchs. Prop. Ins. Co. of
Indiana, 223 S.E.2d 441 (W. Va. 1976). But “[t]he mere fact that
parties do not agree to the construction of a contract does not
render it ambiguous,” Syl. Pt. 4, W. Va. Fire & Cas. Co. v. Stanley,
602 S.E.2d 483 (W. Va. 2004), and “a court should read policy
provisions to avoid ambiguities and not torture the language to
create them.” Payne v. Weston, 466 S.E.2d 161, 166 (W. Va. 1995).
1. Definition of Business
The defendants first contend that the definition of business
is ambiguous because it differs between the House and Home Policies
and the Umbrella Policy (Dkt. Nos. 32 at 13-15, 33 at 13-15). But
Allstate asserts there is no ambiguity because the House and Home
Policies and the Umbrella Policy are separate policies issued by
different companies (Dkt. No. 34 at 7-11).
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In support of their argument, the defendants cite Gage County
v. Employers Mutual Casualty Co., 937 N.W.2d 863 (Neb. 2020), but
this reliance is unavailing. First, setting aside the fact that
Gage County is not controlling authority, a careful reading of the
opinion establishes that it fails to support the defendants’
position. In Gage County, where the term professional services was
undefined in the underlying insurance policy, the court looked to
definitions in another related insurance policy and an umbrella
policy to define the term. Id. at 873-875. Importantly, while the
court considered the policies as a whole, it never held, as the
defendants have argued here, that differences between the
definitions in the related policies created an ambiguity, but
rather concluded that the undefined term should be given a meaning
consistent with the definitions used in the other two policies.
Id. at 941-42. Here, in contrast, the term business is defined in
each of the three (3) policies at issue.
The defendants offer no authority in addition to Gage County
to support their argument that different definitions in separate
policies constitute an ambiguity. On the contrary, where, as here,
separate policies issued by separate companies include definitions
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of business the Court concludes that each definition is not
“reasonably susceptible of two different meanings.” Syl. Pt. 1,
Prete, 223 S.E.2d 441. Indeed, as “a court should read policy
provisions to avoid ambiguities,” Payne, 466 S.E.2d at 166, the
definition of business in each policy “should be given its plain,
ordinary meaning.” Syl. Pt. 8, Cherrington, 745 S.E.2d at 511
(internal quotations and citations omitted).
2. Definition of Property
The defendants next argue that the meaning of property in the
definition of business is ambiguous because property could refer
to real or personal property (Dkt. Nos. 32 at 15-17, 33 at 16-18).
Allstate contends there is no ambiguity because property
encompasses both real and person property (Dkt. No. 34 at 13-14).
The plain and ordinary meaning of property is “[a]ny external
thing over which the rights of possession, use, and enjoyment are
exercised.” Property, Black’s Law Dictionary (11th ed. 2019). Such
definition clearly includes both real and personal property. The
Court therefore declines to “torture the language to create [an
ambiguity],” Payne, 466 S.E.2d at 166, and concludes that property
refers to both real and personal property.
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In summary, the pertinent portions of the House and Home
Policies and the Umbrella Policy are unambiguous, thereby
precluding consideration of the defendants’ argument regarding
their reasonable expectations. Syl. Pt. 2, State ex rel. Universal
Underwriters Ins. Co. v. Wilson, 825 S.E.2d 95 (W. Va. 2019).
V. Conclusion
For the reasons discussed, the Court GRANTS the plaintiffs’
motion for summary judgment (Dkt. No. 30) and DENIES the Claudio
defendants’ cross-motion for the same (Dkt. No. 32). It also DENIES
the Claudio defendants’ alternative motion to abstain (Dkt. No.
32).
It is so ORDERED.
The Clerk SHALL transmit copies of this Order to counsel of
record, enter a separate Clerk’s judgment, and remove this case
from the Court’s active docket.
DATED: August 9, 2022
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
22