# Lumbermens Mutual Casualty Co. v. S-W Industries, Inc.

> Court of Appeals for the Sixth Circuit · April 7, 1994 · 23 F.3d 970

URL: https://www.frixlaw.com/law-library/cases/6930686

## Case

- **Full name:** LUMBERMENS MUTUAL CASUALTY COMPANY v. S-W INDUSTRIES, INC., Cross-Appellee, Aetna Casualty & Surety Company Employers' Liability Assurance Corporation, Ltd. The Travelers Insurance Company American Home Assurance Company National Union Fire Insurance Company Youell & Companies J.F. Green & Others H.S. Weavers Agencies, Ltd. Underwriters at Lloyds, London
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** April 7, 1994
- **Citations:** 23 F.3d 970; 1994 WL 114375
- **Precedential status:** Published
- **Opinion:** Concurring in part by Joiner
- **Judges:** Joiner, Ryan, Suhrheinrich
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6930686

## How later opinions describe it (automated extraction)

- holding that “[u]nlawful detention” by immigration 24 officials constituted “irreparable harm”

## Opinion text

JOINER, Senior District Judge,
concurring in part and dissenting in part.
Although at first blush Wedge Products, Inc. v. Hartford Equity Sales Co., 31 Ohio St.3d 65 , 509 N.E.2d 74 (1987), appears to provide a solution to the intentional tort coverage problem in this case, the opinion by Judge Suhrheinrich makes clear that Wedge should be distinguished. The opinion also makes clear that Ohio’s developing law in this area does not support a reading of Wedge that would deny coverage. Our task is to make our best effort in finding and applying Ohio law. Judge Suhrheinrieh’s opinion reaches the result most likely to be reached if this case were to be decided by the Ohio court. For these reasons, I join in Part II.C.l. of the opinion.
I part company with Judge Suhrheinrich in his analysis of the geographical scope of the coverage afforded by the Aetna and Lumber-mens WC/EL policies, specifically, the construction in Part II.C.2.a. of the opinion of the Broad Form All States Endorsement. Both policies include standard form, identical versions of this endorsement.
To discern the meaning of the All States Endorsement, I start with the basic insuring agreement. The WC/EL policies at issue have both Coverage A, pertaining to benefits payable under workers’ compensation laws, and Coverage B, entitled “Employer’s Liability.” The declaration pages of the policies state in item 3 that Coverage A applies to the listed states, and no policy includes Ohio. The policies further provide that Coverage B exists as to operations of the insured in the states listed in item 3 of the declarations.
The All States Endorsement provides:
1. If the insured undertakes operations in any state not designated in Item S of the declarations, other than ... Ohio [and five other states], Coverage A applies to such operations.
(Emphasis added.) Like in the basic insuring agreement, the scope of Coverage B under the All States Endorsement tracks the scope of Coverage A:
3. Coverage B applies to operations of the insured covered by this endorsement. The limit of liability for bodily injury by disease, including death resulting at any time therefrom, applies as though each state in which such operations are conducted were designated in Item 3 of the declarations.
(Emphasis added.) The term “this endorsement” clearly applies to the single endorsement entitled “All States Endorsement,” and embodies all of the limitations in that endorsement. Two conclusions flow from this language: (1) the endorsement limits itself to operations outside Ohio and five other states; and (2) Coverage B is limited to operations of the insured covered by this endorsement. The only rational conclusion is that the endorsement was intended not to cover Ohio. 1
If this were the only provision regarding the geographical scope of the coverage afforded by the WC/EL policies, then coverage would not exist as to either of the Lumber-mens or Aetna policies. However, Aetna has an additional endorsement that provides coverage for the loss at issue here.
*985 Aetna’s Employers’ Overhead Endorsement provides that the insurance afforded under Coverage B also applies to bodily injury by accident or disease sustained by an employee of the insured, employed in one of the designated states, including Ohio, arising out of and in the course of his employment by the insured, “but only with respect to ... [s]uch injury or death for which no benefits are payable under the Workmen’s Compensation Laws of such state[.]” As we hold in Part III.C. of the opinion, Aetna does not benefit from this limitation on coverage, because workers’ compensation benefits were not payable to Carl Viock for his intentional tort injury.
Thus, I agree that S-W is entitled to entry of summary judgment against Aetna. Unlike Judge Suhrheinrieh, however, I do not base this conclusion on the All States Endorsement but, rather, on the Employers’ Overhead Endorsement. The very existence of the Employers’ Overhead Endorsement supports the conclusion that the All States Endorsement does not provide coverage. Significantly, the states excluded by the All States Endorsement are mcluded in the Employers’ Overhead Endorsement (except West Virginia, which is excluded from both). The opinion’s reading of the All States Endorsement renders the Employers’ Overhead Endorsement a nullity.
My view of the All States Endorsement would have a practical effect only on the disposition of Lumbermens’ appeal. Thus, I concur in the result reached as to Aetna, and dissent, for the reasons stated, with respect to the disposition of Lumbermens’ liability on its WC/EL policies only.
. The opinion relies on paragraphs 4 and 8 of the endorsement, but these provisions do not provide guidance one way or the other as to geographical scope of Coverage B. Paragraph 4 simply defines the word "state" (in contrast to, e.g., Puerto Rico and Canadian provinces), and does not purport to enumerate which states are covered. Paragraph 8 simply makes all other consistent provisions of the policy applicable to the insurance provided by the endorsement.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6930686. Public record. Not legal advice.