Harper, Charlene v. Vigilant Insur Co

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-1087

CHARLENE HARPER,

Plaintiff-Appellant,

v.

VIGILANT INSURANCE COMPANY,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 01-cv-0554-MJR—Michael J. Reagan, Judge.

____________

ARGUED SEPTEMBER 15, 2004—DECIDED DECEMBER 6, 2005

____________

Before BAUER, COFFEY and KANNE, Circuit Judges.

COFFEY, Circuit Judge. Plaintiff-appellant, Charlene

Harper, acting in the capacity of administrator of Jane

Doe’s (“Jane”) estate, appeals an order of the district

court granting summary judgment in favor of the

defendant-appellee Vigilant Insurance Company (“Vigi-

lant”). The district court found that Jane, as an assignee of

John Doe’s (“John”) rights to sue Vigilant for bad faith

failure to defend and indemnify, could not prevail because

John was not a “resident” of his father’s “household” under

the terms of his father’s homeowner’s insurance policy. The

trial court also concluded, in the alternative, that even if

John was an insured under the policy, Harper had failed to

2 No. 04-1087

establish that Jane’s injury occurred during the effective

insurance policy coverage period. We affirm.

I. BACKGROUND

John and Jane met in St. Louis, Missouri, in the spring or

summer of 1987. Not long after meeting they began dating,

and became sexually active somewhere in September or

October of that year. While dating Jane, John lived with his

mother at 5525 Wilson Avenue in St. Louis, Missouri, but

occasionally visited his estranged father’s lake house in

Lake of the Ozarks, Missouri. He and Jane stayed at his

father’s lake house “maybe six times . . . a year” and he

went there “pretty consistently” without Jane.1

Prior to, and throughout his relationship with Jane, John

engaged in high-risk sexual behavior. Among other things,

John admitted to having sexual encounters with numerous

men as well as other women while contemporaneously

having relations with Jane. In 1990, John’s treating

physician advised him to get tested for HIV, as the doctor

suspected he was suffering from AIDS. However, through-

out the period of time that he was dating Jane, John failed

to seek or obtain a HIV test. In addition, John neglected to

inform Jane of either his sexual behavior or his doctor’s

suspicion that he was suffering from AIDS. In 1991 John

and Jane broke up, and in January of 1992, John tested

positive for HIV. Just a few months later, in April of 1992,

1

Other than John’s statement that he went to the lake house

“pretty consistently” throughout his life without Jane, the rec-

ord is barren of any evidence which would allow us to ascertain

how frequently John visited his father’s lake home without Jane.

We are also unable to determine from the record how long

John stayed at the lake house when he visited either in the

company of Jane or without her.

No. 04-1087 3

Jane discovered that she too was infected with the HIV

virus.

In March of 1994, Jane filed suit against John in St. Clair

County, Illinois, (“the St. Clair lawsuit”) seeking recovery

for bodily injury, pain and suffering, emotional distress, loss

of income and medical expense based on John’s alleged

negligence, battery and intentional infliction of emotional

distress in infecting her with the HIV virus. Specifically,

Jane alleged inter alia that: (1) John “transmitted HIV [to

her] when he knew or should have known he was infected

with the communicable disease”; and (2) John had “failed to

take adequate precautions to prevent himself from contract-

ing HIV” after he had “engaged in high-risk [sexual] behav-

ior” while simultaneously sleeping with Jane.

After the St. Clair lawsuit was filed, John made numer-

ous demands2 upon Vigilant—as his father’s insurer—to

defend and indemnify him in the St. Clair lawsuit, relying

on four different homeowner’s insurance policies issued

to his father. The four Vigilant policies included: (1) Policy

Number 5224-35-36—issued to John’s mother and father for

property located at 2100 South 59th Street in St. Louis,

Missouri, effective from January 7, 1985, through January

7, 1986; (2) Policy Number 5228-68-33—issued to John’s

father for property located at 4390 Via Giudici Drive in

St. Louis, Missouri, effective from September 15, 1985,

through September 15, 1991; (3) Policy Number 5229-31-

78—issued to John’s father for Lot #4, Horseshoe Bend #9,

Lake Ozark, Missouri, effective from October 23, 1985,

through October 23, 1989 (“the lake house policy”); and (4)

Policy Number 1060-24-3601—issued to John’s father for

the Via Giudici Drive address, effective from September 15,

1989, through September 15, 1991. After investigating and

2

Indeed, between 1994 and 1998, John made three separate

requests on Vigilant to defend or indemnify him in the St. Clair

lawsuit, each of which was denied.

4 No. 04-1087

reviewing each of the claims, Vigilant denied each request

for coverage.3

During their investigation, Vigilant proceeded to con-

duct a number of depositions as well as serve informal

interrogatories on John through his counsel. For example,

on November 13, 1997, John participated in a deposition

dealing with the St. Clair lawsuit and stated that his

residence was 5525 Wilson Avenue, St. Louis, Missouri and

added that he had lived at that location “all of [his] life.”

John also testified that he had never claimed any other

residence as his own and that he owned no real estate and

had not lived anywhere else for an extended period of time.

In addition, in response to a letter requesting more informa-

tion, dated June 9, 1998, John, through his counsel, stated

that: (a) he never maintained a bedroom at his father’s lake

house and that he resided at his mother’s home “all of [his]

life”; (b) he did not keep personal belongings at the lake

house; and (c) he listed his mother’s address on his tax

returns and other legal documents. After concluding their

investigation, Vigilant made a final determination on

August 13, 1998, and advised John that Vigilant was not

obligated, under any of the policies, to defend him, stating

that they would: “neither defend [n]or indemnify [him in]

[the St. Clair lawsuit] or participate in any settlement.”

On March 29, 1999, Jane and John entered into a confi-

dential Settlement and Mutual Release (“the settlement

agreement”), thus terminating the St. Clair lawsuit.4 In the

3

In refusing to defend or indemnify John in the St. Clair suit,

Vigilant determined that they were not required to do so because

“[t]he complaint [did] not allege any personal injury, bodily injury,

or property damage” within the meaning of the policy.

4

At some point in the litigation John also made a demand on

his mother’s insurer, State Farm Fire and Casualty Company

(continued...)

No. 04-1087 5

settlement agreement, in addition to consenting to the entry

of judgment against him in the amount of $2,000,000, John

also assigned to Jane5 the right to pursue any bad faith or

vexatious refusal to pay claims he accrued6 against Vigilant

4

(...continued)

(“State Farm”), to defend him in the St. Clair lawsuit pursuant to

a homeowner’s insurance policy issued to John’s mother for

the 5525 Wilson Avenue property (where John was living at

the time of the lawsuit). After first refusing to defend or indem-

nify, State Farm eventually agreed to settle a portion of the

claim against John and pay Jane $100,000. In exchange, State

Farm was granted a release from further liability to Jane

under the policy.

5

Bad faith claims against insurers are assignable under Missouri

law. See generally Freeman v. Brasso, 128 S.W.3d 138, 141 (Mo.

Ct. App. 2004); accord Magers v. Nat’l Life & Accident Ins. Co.,

329 S.W.2d 752, 756 (Mo. 1959) (en banc).

6

Missouri law prescribes that: “If the person whose property or

interest therein is injured is dead, the action survives and may be

brought against the wrongdoer by the person appointed

as fiduciary for the estate of the deceased person.” Mo. Stat.

§ 537.010. In addition, as stated supra at p. 5 n.5, bad faith claims

against insurers are assignable under Missouri law. See Freeman,

128 S.W.3d at 143. Accordingly, the assignment of John’s right to

sue Vigilant to Jane was valid and, upon her death, Mo. Stat. §

537.010 dictates that Jane’s right to sue was, by operation of law,

transferred to her “appointed fiduciary,” in this case her sister,

Harper. The only limitation placed on Jane’s—and, by extension,

the administrator of her estate, Harper’s—right to sue would have

been the Missouri statute of limitation, which bars actions in

contract brought more than five years after they accrue. See Mo.

Stat. § 516.120 (stating that “[a]ll actions upon contracts” shall be

brought within five years). In any case, neither party has chal-

lenged either John’s assignment of his right to sue Vigilant to

Jane or Harper’s filing of suit against Vigilant on Jane’s

behalf—and to do so now would be fruitless. See Republic Tobacco

(continued...)

6 No. 04-1087

for refusal to defend him in the St. Clair lawsuit. John died

on November 24, 1999.

Pursuant to John’s assignment of the right to sue, Jane

filed a complaint against Vigilant on July 3, 2001, in St.

Clair County, Illinois alleging: (1) bad faith refusal to

defend; (2) bad faith refusal to settle; and (3) violation

of section 155 of the Illinois Insurance Code, 215 ILCS

5/155. In response, Vigilant filed a motion with the circuit

court seeking permission to remove the case to federal court

pursuant to 28 U.S.C. § 1332. Vigilant’s motion was granted

and the case was removed to the United States District

Court for the Southern District of Illinois. Jane subse-

quently died on October 19, 2001, while the case

was pending. In February, 2002, Harper, Jane’s sister

and estate administrator, was substituted for Jane as the

plaintiff in the pending suit.

Following discovery, Vigilant filed a motion for sum-

mary judgment against Harper, claiming that it had no

duty to defend John in the St. Clair lawsuit because he was

not an insured under the terms of any of his father’s

policies. Also, Vigilant argued that, even if John was an

insured under any of the policies, there was no evidence

in the record which would establish that John infected Jane

during the effective time limits of the lake house policy. The

district court agreed with Vigilant’s arguments and entered

summary judgment in the insurance company’s favor on

November 3, 2003, finding that John was not insured under

the terms of any of Vigilant’s policies issued to John’s father

and that, even if he were, there was no evidence establish-

ing that Jane had been infected during the coverage periods

6

(...continued)

Co. v. North Atlantic Trading Co., Inc., 381 F.3d 717, 728 (7th Cir.

2004) (arguments not presented to the district court are deemed

waived).

No. 04-1087 7

of the policies at issue. Harper appeals the judgment only

with respect to Policy Number 5229-31-78, the lake house

policy.

II. ISSUES

On appeal, Harper argues that the district court erred

in granting Vigilant’s motion for summary judgment.

Specifically, Harper claims that summary judgment was

improper because: (a) Vigilant “failed to establish beyond

dispute that [John] was not an insured person under the

lake house policy because he ‘never resided’ at the vaca-

tion property” and (b) whether or not John infected Jane

with the HIV virus at the vacation property was a dis-

puted question of material fact.

III. DISCUSSION

We review the district court’s grant of summary judgment

de novo, and in doing so view the record in the light most

favorable to Harper, the nonmoving party. See Hottenroth

v. Village of Slinger, 388 F.3d 1015, 1027 (7th Cir. 2004).

Summary judgment is warranted only where “the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits . . . show that there is no

genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322,

106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). “An issue of

fact is ‘material’ if it is outcome determinative . . .

[h]owever, ‘bare allegations not supported by specific facts

are not sufficient in opposing a motion for summary judg-

ment.’ ” Hottenroth, 388 F.3d at 1027 (quoting Hildenbrant

v. Ill. Dept. of Natural Res., 347 F.3d 1014, 1036 (7th Cir.

2003)).

8 No. 04-1087

As a federal court sitting in diversity by virtue of jurisdic-

tion pursuant to 28 U.S.C. § 1332, we apply state law “to

resolve substantive questions and federal law to resolve

procedural and evidentiary issues.” Colip v. Clare, 26 F.3d

712, 714 (7th Cir. 1994) (citing Mercado v. Ahmed, 974 F.2d

863, 866 (7th Cir. 1992)). In the district court proceedings,

both parties “agree[d] that . . . the substantive law of the

State of Missouri” would govern interpretation of the

insurance contract at issue. Harper v. Vigilant Ins. Co., No.

01-CV-554-MJR, at *7 (S.D.Ill. Nov. 3, 2003). Also, because

the trial court proceeded to conduct an independent choice-

of-law analysis and determined that Missouri law should

apply to the interpretation of the insurance contract and

because neither party has challenged that determination,

they are barred from doing so now. See id. at *7-8; Muslin

v. Frelinghuysen Livestock Managers, Inc., 777 F.2d 1230,

1231 n.1 (7th Cir. 1985). Thus, under the familiar rule of

Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), we apply

Missouri substantive law to the issues raised in this appeal.

Where the Missouri Supreme Court has not confronted a

particular issue (e.g., whether the term “household” as used

in an insurance contract is ambiguous), we are called upon

to predict how that court would decide if presented with the

same question. See Smith v. Equitable Life Assurance Soc’y

of the United States, 67 F.3d 611, 615 (7th Cir. 1995). In the

absence of a Missouri Supreme Court ruling on an issue,

the decisions of the Missouri Court of Appeals will control

unless there is persuasive evidence that the Missouri

Supreme Court would rule differently. See Clarin Corp. v.

Mass. Gen. Life Ins. Co., 44 F.3d 471, 474 (7th Cir. 1994).

A. John’s possible coverage as a member of his father’s

household

Harper initially argues that summary judgment in favor

of Vigilant was inappropriate because whether John should

No. 04-1087 9

be considered a “resident” of his father’s “household” for

purposes of the lake house policy constituted a “genuine

issue of material fact” pursuant to FED. R. CIV. P. 56(c). We

disagree.

Under Missouri law, “[i]n general, the meaning of an

insurance contract and, in particular, coverage is a question

of law.” Liberty Mut. Ins. Co. v. Havner, 103 S.W.3d 829,

832 (Mo. Ct. App. 2003). However, where a provision in an

insurance policy is ambiguous or “susceptible to two or more

meanings . . . , the court must adopt the meaning that is

most advantageous to the insured’s position.” Id. The

rationale underpinning this rule of law is that, “[i]n drafting

insurance policies, the insurer ‘has the opportunity to

clearly word exclusions and limits of liability.’ ” JAM Inc. v.

Nautilus Ins. Co., 128 S.W.3d 879, 893 (Mo. Ct. App. 2004)

(quoting Southern General Ins. Co. v. WEB Assoc./Elec.,

Inc., 879 S.W.2d 780, 782 (Mo. Ct. App. 1994)).

The Missouri Supreme Court, to date, has not specifically

addressed the question of whether the term “household”

when left undefined in an insurance contract is considered

ambiguous; however, in a 1979 en banc decision, the

Missouri Supreme Court noted that “ ‘[h]ousehold’ is a

chameleon like word . . . [t]he definition depends on the

facts of each case . . . [i]t is difficult to deduce any general

principles.” Cobb v. State Sec. Ins. Co., 576 S.W.2d 726, 738

(Mo. 1979) (en banc). Nonetheless, despite the Missouri

Supreme Court’s admonition in Cobb, the Missouri Court of

Appeals for the Western District of Missouri undertook the

near impossible task of actually defining the term “house-

hold,” and having done so, declared the term unambiguous

“within and for the purposes of ‘homeowners’ insurance

policies.” Watt v. Mittlestadt, 690 S.W.2d 807, 816 (Mo. Ct.

App. 1985) (defining household as “a collection of persons,

whether related by consanguinity or affinity or not related

at all but who live or reside together as a single group or

unit which is of a permanent and domestic character, with

10 No. 04-1087

one head, under one roof or within a single curtilage; who

have a common subsistence and who direct their atten-

tion toward a common goal consisting of their mutual

interest and happiness.”). However, in 2003 the Missouri

Court of Appeals for the Western District overruled its own

decision in Watt, finding the definition unworkable and

concluded that “[b]ecause the meaning of the court’s

definition is indistinct, [the term “houshold” as a matter

of law] is ambiguous.” Liberty Mut. Ins. Co., 103 S.W.3d

at 833 (citing Martin v. U.S. Fid. & Guar. Co., 996 S.W.2d

506, 508 (Mo. 1999) (en banc)). Thus, due to the fact that

the Watt court reversed itself, and because the Missouri

Supreme Court has expressly described the term “house-

hold” when incorporated into a homeowner’s insurance

policy as “chamaeleon like” and dependant on the “facts

of each case,” see Cobb, 576 S.W.2d at 738, we conclude

that, if the Missouri Supreme Court were to consider the

issue, the court would conclude that the term “household”

is indeed ambiguous. See Dumas v. Infinity Broad. Corp.,

416 F.3d 671, 681 n.11 (7th 2005).

Accordingly, because the term “household” as incorpo-

rated into the lake house policy is ambiguous, we inter-

pret that term against the drafter, Vigilant, and in favor of

coverage for the insured. See Krombach v. Mayflower Ins.

Co., 827 S.W.2d 208, 210 (Mo. 1992) (en banc).7 Never--

theless, where “there is no coverage under any reasonable

7

As the Missouri Supreme Court noted “[t]here are at least two

reasons for this rule of construction. . . . First, insurance is

designed to furnish protection to the insured, not defeat it.

Ambiguous provisions of a policy designed to cut down, restrict, or

limit insurance coverage already granted, or introducing excep-

tions or exemptions must be strictly construed against the insurer

. . . . Second, as the drafter of the insurance policy, the insurance

company is in the better position to remove ambiguity from the

contract.” Id. at 210-11 (internal citations omitted).

No. 04-1087 11

interpretation of . . . the policy” summary judgment in favor

of the insurer, here Vigilant, is a proper remedy. See Liberty

Mut. Ins. Co., 103 S.W.3d at 833 (citing Greer v. Zurich Ins.

Co., 441 S.W.2d 15, 30 (Mo. 1969)).

This is such a case. Under any reasonable interpreta-

tion of the language in the insurance contract, John

cannot be considered a “resident” of his father’s “house-

hold.”8 The term “household”, as determined by the Mis-

souri Supreme Court, generally refers to “a close relation-

ship, varying in detail, where people live together as a

family in a closely-knit group, usually because of a close

relationship by blood, marriage or adoption and who deal

with each other informally and not at arms length.” Cobb,

576 S.W.2d at 738; cf. Elder v. Metro. Prop. & Cas. Co., 851

S.W.2d 557, 559-60 (Mo. Ct. App. 1993). In addition, the

Missouri Courts of Appeals have expanded on this prece-

dent holding that, in order to be a “resident” of an insured’s

“household,” an individual must establish that his stay in

the insured’s home was intended to be “ ‘something of

permanence or continuity at least for an indefinite period

[of time], to the exclusion of another contemporaneous

residence.” Pruitt v. Farmers Ins. Co., 950 S.W.2d 659, 664

8

The lake house policy provided liability insurance for John’s

father and his “relatives” only if they were “residents of [his]

household.” The language of the policy neither defines “relatives”

nor does it define “residents of [his] household.” Vigilant does

not dispute that John was a relative of his father. The question is

whether John’s infrequent social visits to his father’s lake house

during the effective policy period qualified him as a “resident of

[his father’s] household,” thereby granting him insured status

under the policy. Under Missouri law, Harper has the burden of

establishing that John was an insured under the lake house

policy, a burden which she has failed to carry. See Shelter General

Ins. Co. v. Siegler, 945 S.W.2d 24, 27 (Mo. Ct. App. 1997); see also

Auto. Club Inter-Ins. Exch. v. Medrano, 83 S.W.3d 632, 638 (Mo.

Ct. App. 2002).

12 No. 04-1087

(Mo. Ct. App. 1997) (quoting Clarkson v. MFA Mut. Ins. Co.,

413 S.W.2d 10, 13 (Mo. Ct. App. 1967)).9

During the time frame at issue, John neither lived with

his father in a “close-knit group” nor did he fulfill the

requirement of maintaining a permanent continuity of

existence at his father’s lake house “to the exclusion of

another contemporaneous residence.” Indeed, there is no

evidence which would lead us to believe that John’s visits to

his father’s lake house were of a permanent nature or that

John at any point intended to establish a residence at the

lake house or remain as a member of his father’s family—to

the exclusion of his mother’s residence in St. Louis. For

example, in a deposition taken in conjunction with the St.

Clair lawsuit John stated that his residence was 5525

Wilson Avenue in St. Louis and that he had resided there

“all of [his] life.”10 In addition, John designated the St. Louis

address on a number of legal documents, such as tax

returns and “all other applications.” Although John admits

visiting his father’s lake house with Jane “maybe six times

a year,” and “pretty consistently” at other times throughout

his life, there is no evidence in the record which would

demonstrate that John’s living arrangements consisted of

more than intermittent social visits to the lake house, while

his permanent home remained in St. Louis with his mother.

Further, in responding to a questionnaire provided to him

by Vigilant, John stated that he did not maintain a bedroom

at the lake home, nor did he keep any of his personal

9

The term “residence” has been defined by the Missouri Courts

of Appeals as a “person’s physical location coupled with his in-

tent to remain there for an indefinite period of time.” American

Family Mut. Ins. Co. v. Auto. Club Inter-Ins. Exch., 757 S.W.2d

304, 306 (Mo. Ct. App. 1988).

10

John lived at the St. Louis address with his mother and father

until his parents’ separation and, after his father moved out,

continued living at the house with his mother.

No. 04-1087 13

possessions at the lake home. Thus, although the question

of whether a person is a “resident” of an insured’s “house-

hold” under the language of an insurance policy is a

question of fact, Liberty Mutual Insurance Co. v. Havner,

103 S.W.3d 829, 832 (Mo. Ct. App. 2003), the evidence in

the record fails to establish a genuine issue of material fact

as to whether John was an insured and, as such, the district

court properly granted summary judgment in favor of

Vigilant, see Cameron Mutual Insurance Co. v. Marler, et

al., 926 S.W.2d 62, 65 (Mo. Ct. App. 1996).

B. John’s potential coverage as a an officer or employee

of his father’s company

In a related, but poorly developed argument, Harper also

argues that John was an insured under the lake house

policy by virtue of his employment with Crescent Parts &

Equipment (“Crescent”), his father’s company. The record

establishes that Harper failed to properly present this

argument to the district court, aside from stating—in her

brief challenging summary judgment—that “[t]he lake

house policy was issued to Mr. Doe’s father and Crescent

Parts & Equipment Company.” Plaintiff’s Brief in Op-

position to Defendant’s Motion for Summary Judgment,

p. 13. Accordingly, because Harper failed to properly pre-

sent the issue to the district court in response to Vigilant’s

motion for summary judgment, that issue is waived. See

Republic Tobacco Co. v. N. Atl. Trading Co., 381 F.3d 717,

728 (7th Cir. 2004) (quoting Arendt v. Vetta Sports, Inc., 99

F.3d 231, 237 (7th Cir. 1996)).

In addition to waiving the argument in the district court,

Harper also failed to address the issue on appeal aside from

stating that “[t]he coverage provided to [John’s] employer

under the policy would be rendered illusory if it extended

only to those meeting the definition now proposed by

Vigilant Insurance Company.” The argument is more

14 No. 04-1087

developed in Harper’s reply brief, but this is too little, too

late, for “[a]rguments raised for the first time in a reply

brief are [also] waived.” James v. Sheahan, 137 F.3d 1003,

1008 (7th Cir. 1998); see Hess v. Reg-Ellen Machine Tool

Corp., 423 F.3d 653, 665 (7th Cir. 2005); United States v.

Spaeni, 60 F.3d 313, 317 (7th Cir. 1995); see also Coker v.

Trans World Airlines, Inc., 165 F.3d 579, 586 (7th Cir. 1999)

(failure to develop an argument until the moment of no

return, i.e., the filing of a reply brief, constitutes waiver).

Nevertheless, even if we were to assume arguendo that

the issue was not waived, Harper’s argument that Cres-

cent—and by extension John—was an insured under the

lake house policy is unsupported either with facts in the

record or the required case law applicable thereto. The only

evidence Harper offers in support of her contention that

Crescent was a named insured under the lake house policy

is the inclusion of the following language under the mailing

address heading of the policy: “[John’s father] % Crescent

Parts & Equipment.” Harper avails herself of this alleged

ambiguity to argue in her reply brief that the existence of

the “%” symbol creates an ambiguity in the contract as to

whether Crescent was a named insured, and that under

Missouri law we must therefore interpret the ambiguity in

favor of the insured. See Harrison v. Tomes, 956 S.W.2d

268, 270 (Mo. 1997) (en banc). One problem with this

unsupported, yet creative argument is that Harper has

failed to supply this court with any precedential support for

the proposition that a mailing address could ever create an

additional named insured, where that party is not a named

insured anywhere else in the underlying contract. Cf.

Prestigiacamo v. American Equitable Assurance Co. of N.Y.,

221 S.W.2d 217, 218-23 (Mo. Ct. App. 1949).11 Also, even if

11

In addition, it should be noted that Crescent is not listed in

(continued...)

No. 04-1087 15

it were reasonable to conclude, which it is not, that the

mailing address created a patent ambiguity in the contract

and that, by virtue of the ambiguity Crescent should be

considered an insured under the lake house policy, Harper’s

claims still must fail. This is because John, as an officer and

employee of Crescent,12 cannot be considered an insured

under any “reasonable interpretation of the [lake house]

policy.” See Liberty Mut. Ins. Co., 103 S.W.3d at 833. The

general rule in Missouri, as well as other jurisdictions, is

that under insurance liability policies, when a corporation

is exclusively listed as the named insured on the policy, the

corporation’s shareholders, officers, and employees are not

considered additional insureds under the policy unless the

policy specifically provides otherwise. See Ott v. Firemen’s

Fund Ins. Co., 936 S.W.2d 165, 166 (Mo. Ct. App. 1996);

Guarantee Ins. Co. v. Anderson, 585 F.Supp. 408, 411 (E.D.

Pa. 1984); Young v. Ray America, Inc., 673 S.W.2d 74, 79

(Mo. Ct. App. 1984); see also Couch on Insurance § 40:15 ¶3

(3d ed. 2005) (“A liability policy on a corporate entity does

not automatically cover its employees or members.”).13

11

(...continued)

the specific section of the insurance contract entitled “Addi-

tional Insured.”

12

In deposition testimony John stated that he was both an offi-

cer and employee of Crescent. Specifically, John stated that he

held the executive title of “perhaps secretary, treasurer, some-

thing along those lines,” and contemporaneously acted as a

“product manager.”

13

Even if Crescent were covered by a commercial general liabil-

ity policy, coverage would only extend to officers and employees

acting “within the scope of [their] authority or employment.”

Maryland Cas. Co. v. Huger, 728 S.W.2d 574, 579 (Mo. Ct. App.

1987); see Aetna Cas. & Sur. Co. v. Pavlovitz, 826 S.W.2d 362, 366-

67 (Mo. Ct. App. 1992); see Judge Almon H. Maus, Missouri

Practice Series: Insurance Law and Practice § 10.20 (West 1997);

(continued...)

16 No. 04-1087

Thus, because we hold that the issue of whether John was

an insured as an officer or employee of Crescent was waived

by Harper when she failed to sufficiently raise it either in

the district court or on appeal, and because the argument is

without merit as set forth herein, we need not consider it

further and conclude that such an argument would not have

precluded the district court from properly granting Vigi-

lant’s motion for summary judgment.

C. Whether Jane was infected during the applicable

insurance policy coverage period

Because we hold that John was not an insured under

the terms of his father’s lake house policy, we need not

address Harper’s argument that there was a dispute as to a

question of material fact regarding the question of whether

John infected Jane with the HIV virus during the effective

policy period of the lake house insurance contract.14

13

(...continued)

Couch on Insurance § 126:7 (3d ed. 2005). Neither party al-

leged that the lake house policy constituted a general liability

policy; therefore, even if Crescent were an insured, John as an

officer and/or employee would not have been covered under the

policy. See id. What’s more, Harper does not argue, nor could

she argue, that John’s alleged negligent acts occurred while he

acting “within the scope of his authority or employment.” Mary-

land Cas. Co., 728 S.W.2d at 579.

14

Also, because we have found that John was not an insured

under the lake house policy and, therefore, Vigilant owed no

duty to defend John in the St. Clair lawsuit, we need not analyze

Harper’s claim that Vigilant violated section 155 of the Illinois

Insurance Code, as an essential element of that claim is

that Vigilant had a duty to defend John. See Yamada Corp. v.

Yasuda Fire and Marine Ins. Co., 712 N.E.2d 926, 931 (Ill. App.

1999).

No. 04-1087 17

IV. CONCLUSION

The decision of the district court is

AFFIRMED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—12-6-05