Kemi Green v. Cincinnati Insurance Company , 592 F. App'x 757 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10264
Non-Argument Calendar
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D.C. Docket No. 1:12-cv-03112-TWT
SHAWN MOON, et al.,
Plaintiffs-Counter
Defendants,
versus
CINCINNATI INSURANCE COMPANY,
Defendant-
Counter-Claimant-
Appellee,
KEMI GREEN,
GBOLAHAN BANKOLEMOH,
Counter
Defendants-
Appellants.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
___________________
(October 24, 2014)
Before TJOFLAT and JORDAN, Circuit Judges.*
________________
*The opinion is being entered by a quorum pursuant to 28 U.S.C. § 46(d) due to Judge Hill’s
retirement on October 20, 2014.
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PER CURIAM:
Shawn Moon and Tanya Moon brought this action again The Cincinnati
Insurance Company (“Cincinnati”) asserting both common law and contractual
claims arising out of their insurance coverage dispute. The district court granted
summary judgment to Cincinnati on all the Moons’ claims against it. The Moons
brought this appeal. Finding no error in the district court’s conclusions, we shall
affirm.
This action stems from the drowning death of a two-year-old child in a
swimming pool at a home occupied by Shawn and Tanya Moon. At the time of the
accident, Tanya Moon was babysitting the child.
The property was owned and insured by Shawn Moon’s father, Terry Moon.
In addition to Terry Moon, the insurance policy extended coverage to “[a]ny
person . . . while acting as [Terry Moon’s] real estate manager.”
The decedent’s parents and estate brought suit against Shawn and Tanya
Moon and obtained a judgment in excess of ten million dollars. After initially
defending Shawn and Tanya Moon under a signed reservation of rights, Cincinnati
subsequently denied coverage and withdrew its defense of the Moons. The stated
reason for the denial of coverage was that the policy did not cover Shawn and
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Tanya Moon through their relationship with Terry Moon, the homeowner and
policyholder.
The Moons brought this action in state court asserting breach of contract and
both common law and statutory bad faith failure to settle claims. They also sought
punitive damages and attorneys’ fees. Cincinnati removed the action to the district
court. The parties filed cross motions for summary judgment. The district court
granted Cincinnati’s motion, holding that it had no duty to defend the Moons in the
wrongful death action against them as they were neither the insured under the
policy nor acting as real estate managers at the time of the accident. The court
reserved ruling on the Moons’ claim that Cincinnati voluntarily undertook duties to
them while providing them with a preliminary defense and considering settlement
proposals, but later denied these claims as well.
On appeal, the Moons assert that the district court erred in these holdings.
The crux of their argument is that, since the term “real estate manager” is
undefined in the policy, it is ambiguous and its meaning must be strictly construed
and resolved in favor of coverage. They assert that a “real estate manager” is “one
who simply takes care of an owners’ (sic) needs with regard to a piece of real
estate.” They argue that, because they took care of the home they leased from
Shawn Moon’s father, Terry, they were real estate managers as well as lessees.
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They cite no authority whatsoever for these arguments.
The district court held that the term real estate manager has an accepted
meaning in the industry and is not ambiguous. The industry term “real estate
manager” implicates real estate transactions rather than routine maintenance.
Sumitomo Marine & Fire Ins. Co. of America v. Southern Guar. Ins. Co., 337 F.
Supp. 2d 1339, 1358 (N.D. Ga. 2004)(real estate managers are involved in selling
or renting houses). See also Insurance Co. of North America v. Hilton Hotel USA,
Inc., 908 F. Supp. 809, 815 (D. Nev. 1995); Dempsey Ex. Rel. Dempsey v. Clark,
847 So. 2d 133, 137 (La. Ap. 2003); McDermott v. Smith, 367 So. 2d 149 (La.
App. 1st Cir. 1978).
Furthermore, to extend the definition of real estate manager to include a
tenant who performs routine maintenance on the home he is leasing would render
meaningless the policy’s lack of coverage for tenants of the property. Indeed, it
would transform every tenant, family member or friend living in another’s home,
who cuts the yard or paints a wall, into a covered real estate manager. This is not a
reasonable interpretation of real estate manager. See Gulf Ins. Co. v. Mathis, 183
Ga. App. 323, 324 (1987)(construction of insurance contract term must conform to
what a reasonable insured would understand it to me). No reasonable insured
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would equate his tenants with real estate managers. 1
Finally, the district court noted that the deposition testimony of the actual
insured, Terry Moon, clearly revealed that he did not consider his son and
daughter-in-law to be real estate managers of his property. He was allowing them
to live there to help them out (he purchased the home from them to avoid
foreclosure).
The court subsequently held that, because the Moons were neither the
insureds nor real estate managers, all of their other claims – which depended upon
their being covered by the policy – were due to be denied.
We agree with the district court. As mere tenants of the property, the Moons
were not covered by Terry Moon’s policy of insurance with Cincinnati. There
being no error in the judgment below, we
AFFIRM.
1
Furthermore, to be covered, a real estate manager must be acting as a real estate
manager at the time of the event for which coverage is sought. At the time of this accident,
Tanya Moon was babysitting and Shawn Moon was not at home. There were no allegations in
the complaint that the Moons were acting as real estate managers at the time of the accident.
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