St. Paul Fire & Marine Insurance v. Schilli Transportation Services Inc. , 672 F.3d 451 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2307
S T. P AUL F IRE & M ARINE INSURANCE C OMPANY,
Plaintiff-Appellee,
v.
S CHILLI T RANSPORTATION S ERVICES INC.,
A TLANTIC INLAND C ARRIERS, INC. and
WVT OF T EXAS, INC.,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:08-CV-00176—Andrew P. Rodovich, Magistrate Judge.
A RGUED O CTOBER 26, 2011—D ECIDED F EBRUARY 13, 2012
Before R IPPLE and H AMILTON, Circuit Judges, and
M YERSCOUGH, District Judge. Œ
M YERSCOUGH, District Judge. In this diversity action,
the district court granted summary judgment in favor
Œ
The Honorable Sue E. Myerscough of the Central District
of Illinois, sitting by designation.
2 No. 11-2307
of the plaintiff. The district court rejected the defendants’
contention that the insurance policy at issue was am-
biguous and concluded that the policy imposed joint
and several liability on the defendants for the payment
of the deductible called for under the policy. Because
we conclude the insurance policy was ambiguous as to
the nature of the defendants’ liability for the deductible,
we reverse and remand.
I. BACKGROUND
Plaintiff, St. Paul Fire & Marine Insurance Company
(St. Paul), issued insurance policies to Defendants
Schilli Transportation Services, Inc. (Schilli Transporta-
tion), Atlantic Inland Carriers, Inc. (Atlantic), WVT of
Texas, Inc. (WVT), and several other corporations not
involved in this appeal, for the time periods of June 1,
2000 to June 1, 2001, and June 1, 2001 to June 1, 2002.1
Schilli Transportation, Atlantic, and WVT are separate
corporations. Schilli Transportation is a freight broker
who arranges freight for other trucking companies and
provides risk management services for claims asserted
against other trucking companies. Schilli Transportation
has never owned tractor-trailers or employed truck
drivers. Atlantic was an interstate motor carrier but has
been defunct since 2003. WVT is an operating inter-
state motor carrier.
1
Because the relevant provisions in the policies are the
same, for the ease of the reader we will hereinafter refer to
the policies jointly as “the Policy.”
No. 11-2307 3
The dispute in this case is over who is responsible to
pay the deductibles on six separate claims brought
against one or more of the defendants for accidents
that occurred during the duration of the Policy and
for which St. Paul advanced funds to defend and/or
settle. Under the Policy, St. Paul had the right and duty
to defend any claim or suit for bodily injury or prop-
erty damage made or brought against any protected
person. St. Paul would “do so even if any of the allega-
tions of any such claim or suit are groundless, false
or fraudulent.” The Policy had a limit of coverage
of $1,000,000 for each accident and a $100,000 basket
deductible per occurrence.
The payment of the deductible was addressed in the
“Repayment of Expenses” provision. The “Repayment
of Expenses” provision, included in the Policy as part
of the “Basket Deductible Endorsement,” states that
St. Paul “will pay all expenses to settle a claim or suit.
You’ll be responsible for the amount of expenses within
the deductible. As soon as we notify you of a payment,
you agree to reimburse us for any such expenses until
the total amount of reimbursed damages and expenses
exceeds the deductible amount shown in the coverage
summary . . . .” The Policy further provides that “[y]ou
agree to repay us up to this deductible amount for
all damages caused by any one accident, as soon as
we notify you of the judgment or settlement.”
The “Introduction” section of the Policy defines “you,
your and yours” as follows: “[t]he words you, your
and yours mean the insured named here, which is a
4 No. 11-2307
CORPORATION.” The Policy then lists Schilli Trans-
portation’s name and address. Underneath Schilli Transpor-
tation’s name and address, the Policy states “Insured
Names Continued on Back.” On the back of that page, the
Policy provides: “Insured Names Continued:” and lists
eight more companies, but not their addresses, including
Atlantic and WVT.
The Policy also contains a “Separation of Protected
Persons” clause, located in the part of the Policy dealing
with automobile coverage, which states that St. Paul will
apply the agreement “to each protected person named
in the Introduction as if that protected person was the
only named one there; and separately to each other pro-
tected person.” The provision also states the limit of
coverage is shared by all protected persons.
The facts related to the six claims at issue in this case
are as follows:
1. Claim 1
On June 22, 2000, Albert Kozusko, a WVT employee,
was injured when an Owens Corning employee ran
over his foot with a forklift while Kozusko was
attempting to unload a semi-tractor trailer. Kozusko
asserted a claim against St. Paul for uninsured motorist
coverage under the Policy. Kozusko voluntarily dis-
missed the complaint. St. Paul incurred costs of
$13,161.70 to defend the claim.
No. 11-2307 5
2. Claim 2
On January 18, 2001, Heather Thompson, Kale Thomp-
son, and Kendra Thompson were involved in an accident
with Henry Owens. The Thompsons brought a claim
against Owens, Schilli Transportation, Atlantic, Schilli
Leasing, Inc., Schilli Specialized, Inc., and Whiteford
Services, Inc. The Thompsons alleged Owens was an
employee of one or more of the other defendants,
including Schilli Transportation and Atlantic, and was
driving in the course of his employment at the time of
the collision. St. Paul eventually settled the claim for
more than $100,000 in exchange for the release of
the Thompsons’ claims against Schilli Transportation,
Atlantic, WVT, and several other parties.
3. Claim 3
On May 8, 2011, Leah Ann and Christopher Wurslin
were in an automobile accident with Scott Yake. The
Wurslins filed a complaint against Schilli Transportation
to recover for injuries Leah Ann Wurslin sustained in
the accident. The complaint alleged that Schilli Trans-
portation was Yake’s employer and was also the
owner/lessor of the vehicle involved in the May 2001
automobile accident. According to the complaint, Yake,
while in the course of his employment with Schilli Trans-
portation, operated the vehicle in a negligent manner
causing him to collide with Leah Ann Wurslin’s vehicle.
St. Paul settled the Wurslins’ claims for $135,000
in exchange for the release of the Wurslins’ claims
against Yake, Schilli Transportation, and St. Paul.
6 No. 11-2307
4. Claim 4
On October 25, 2001, Andrea Johnson was involved in
an accident with a semi-tractor trailer driven by an
Atlantic employee. St. Paul negotiated a $16,000 settle-
ment of Johnson’s claim. Johnson executed a release
which named Atlantic and Schilli Transportation as
two of the parties released from all claims.
5. Claim 5
On January 6, 2002, Allison Bergner was in a three-
vehicle collision that involved a semi-tractor trailer
driven by Donald Indorf. Indorf gave a recorded state-
ment to a claims adjuster for St. Paul in which he stated
he was an employee of Schilli Transportation. St. Paul
incurred $25,971.61 in the defense and settlement of
this claim.
6. Claim 6
On February 25, 2002, Otilio Aguilar and Maria
Fuentas were in an automobile collision. Aguilar and
Fuentas brought suit against Dale Brown and Schilli
Transportation as a result of the accident. The plaintiffs
alleged Brown was an employee of Schilli Trans-
portation and was driving a vehicle owned by Schilli
Transportation when Brown collided with them. St. Paul
negotiated $62,500 settlements with both Aguilar and
Fuentes. The release and indemnity agreement executed
by Aguilar and Fuentes released all claims against
Brown, WVT, and Schilli Transportation.
No. 11-2307 7
St. Paul communicated with Schilli Transportation
multiple times regarding the developments in the
handling and settlement of each respective claim that
resulted from the above-described accidents. St. Paul
sent Schilli Transportation invoices seeking reimburse-
ment for the amounts, up to the $100,000 deductible,
that St. Paul advanced in defending and settling each
case. Schilli Transportation refused to pay.
St. Paul brought suit against Schilli Transportation,
Atlantic, and WVT seeking reimbursement, up to the
deductible amount, for the administration, investiga-
tion, adjustment, settlement, and disposition of each
claim. In granting summary judgment in favor of St. Paul,
the district court stated that “[t]he [P]olicy clearly and
unambiguously defines ‘you’ as all of the corporations
by specifically listing each corporation, and therefore,
provisions containing the term ‘you’ pertain to all of the
listed corporations.” According to the district court,
inserting that definition into the Policy’s repayment of
expenses provision, “the [P]olicy would read that a corpo-
ration Schilli [Transportation], Atlantic, [WVT], and
the other named insureds, would be responsible for the
amount of expenses within that deductible . . . . For
this reason, all of the listed corporations are liable
under the repayment of expenses provision, and for
the deductible at issue.”
This appeal followed.
8 No. 11-2307
II. ANALYSIS
On appeal, Defendants maintain the district court
erred by granting summary judgment in favor of St.
Paul. Specifically, Defendants contend that the Policy
does not contain any language imposing joint and several
liability on each insured for the deductibles or claim
expenses of the other insureds. Defendants also argue
that the Policy contains a “Separation of Protected Per-
sons” clause that mandates each insured be responsible
only for the deductible on claims against that particular
insured. Finally, Defendants maintain that there are
questions of fact regarding each of the six claims men-
tioned above.
To resolve the issues on appeal, this Court must
interpret the provisions of the insurance policy at issue.
The parties agree that Indiana law governs the interpreta-
tion of the Policy.
Insurance contracts are governed by the same rules
of construction as other contracts. Colonial Penn Ins. Co.
v. Guzorek, 690 N.E.2d 664, 667 (Ind. 1997). “When inter-
preting an insurance contract courts must look at the
contract as a whole.” Dunn v. Meridian Mut. Ins. Co.,
836 N.E.2d 249, 252 (Ind. 2005).
“In Indiana, the clear and unambiguous language of
an insurance policy must be given its plain and ordinary
meaning.” Fed. Ins. Co. v. Stroh Brewing Co., 127 F.3d
563, 567 (7th Cir. 1997). However, when an insurance
policy is ambiguous it is strictly construed against
the insurer. American States Ins. Co. v. Kiger, 662 N.E.2d
945, 947 (Ind. 1996). Failure to define a term in an
No. 11-2307 9
insurance policy does not necessarily make it ambiguous.
Colonial Penn Ins. Co., 690 N.E.2d at 667. Moreover, “an
ambiguity is not affirmatively established simply
because controversy exists and one party asserts an
interpretation contrary to that asserted by the opposing
party.” Beam v. Wausau Ins. Co., 765 N.E.2d 524, 528
(Ind. 2002).
Instead, an insurance policy is ambiguous only if a
provision is susceptible to more than one reasonable
interpretation. Colonial Penn Ins. Co., 690 N.E.2d at 667.
“If the terms of the contract are unclear, ambiguous, or
capable of more than one interpretation, we will construe
them to determine and give effect to the intent of the
parties at the time they entered into the contract. We
construe a contract against the drafter only if we
cannot ascertain the parties’ intent from all the ordinary
interpretive guides.” In re Kemper Ins. Cos., 819 N.E.2d
485, 490 (Ind. Ct. App. 2004). “We review the district
court’s grant of summary judgment, and its construction
of the insurance policy, de novo.” Auto-Owners Ins. Co. v.
Munroe, 614 F.3d 322, 324 (7th Cir. 2010).
First, St. Paul argues that because St. Paul accepted
coverage and advanced the deductible for the benefit of
the insured, no public policy reason exists to narrowly
construe the policy language against St. Paul. Instead,
St. Paul contends the Policy should be construed from
a neutral stance and cites Bedwell v. Sagamore Ins. Co.,
753 N.E.2d 775, 779 (Ind. Ct. App. 2001), which states
that “when a case involves a dispute between a third
party and an insurer, we determine the general intent of
10 No. 11-2307
the contract from a neutral stance.” However, in the
cases in which the general intent of a contract has been
determined from a neutral stance, “the party that was
seeking to benefit from a particular interpretation of
the insurance contract was not a party to the contract.”
Burkett v. American Family Ins. Group, 737 N.E.2d 447,
453 (Ind. Ct. App. 2000) (citing Indiana Lumbermens Mut.
Ins. Co. v. Statesman Ins. Co., 291 N.E.2d 897, 899 (Ind. 1973)
(when a nonparty to a contract is making a claim under
the contract, the court is not required to construe the
contract language any certain way and may view the
contract from a neutral stance to seek out the general
intent of the contract)). Here, the dispute is not between
a third party and the insurer. Therefore, the reasoning
behind determining the general intent of a contract from
a neutral stance does not apply here where the dispute
is between the parties to the insurance contract, i.e.,
St. Paul and the named insureds under the Policy.
A. The Insurance Policy Is Ambiguous with Respect
to the Issue of Joint and Several Liability for
the Deductibles
In this case, the parties dispute whether the Policy
provides joint and several liability among Defendants
for the payment of the $100,000 deductible per occur-
rence called for by the Policy. We agree that St. Paul
has valid claims against one or more of the insureds for
the deductible amounts St. Paul spent to settle and
defend the claims in question. However, we do not agree
with the district court’s conclusion that the Policy
No. 11-2307 11
language is clear and unambiguous as to whether the
named insureds are jointly and severally liable for the
deductible.
As stated, the Policy provides that “[y]ou agree to repay
us up to this deductible amount for all damages caused
by any one accident, as soon as we notify you of the
judgment or settlement.” At the center of the dispute in
this case is the meaning of the word “you” in this provi-
sion.
The “Introduction” section of the Policy states that “[t]he
words you, your and yours mean the insured named
here, which is a Corporation.” The Policy then lists Schilli
Transportation’s name and address. Underneath Schilli
Transportation’s name and address, the Policy states
“Insured Names Continued on Back.” On the back of that
page, the Policy states, “Insured Names Continued:” and
lists eight more companies, but not their addresses,
including Atlantic and WVT.
1. The Manner in Which the Named Insureds Are
Listed Creates Ambiguity as to Whether
Named Insureds Are to be Considered Jointly or
Separately for Purposes of Defining “You, Your
and Yours”
Defendants maintain that the manner in which St. Paul
has listed the named insureds in the Policy is ambiguous.
Specifically, Defendants interpret the language defining
“you” as “a Corporation” and the manner in which
the named insureds are listed to mean each corpora-
tion will be treated individually. St. Paul interprets the
12 No. 11-2307
language and manner in which the named insureds
are listed to mean “you” refers to all corporations listed.
Defendants rely on Indiana Insurance Co. v. O.K. Transp.,
Inc., 587 N.E.2d 129 (Ind. Ct. App. 1992), as support for
their position that the Policy is ambiguous because the
definition of “you, your and yours” is related to the
manner in which the named insureds are listed. In
Indiana Insurance Co., a truck involved in an accident
was owned by Oscar Koester & Sons but was driven by
Johnnie Koester, who was an employee of O.K. Transport,
Inc. engaged in O.K. Transport business at the time of
the accident. Id. at 130-31. The insurance policy at issue
there listed the named insureds as “OK Transport, Inc.,
Oscar Koester & Sons.” Id. at 130. These were two
separate entities controlled by the same family. Id.The insurance policy defined “Nonowned autos” as
“[o]nly those autos you do not own, lease, hire, or borrow
which are used in connection with your business. This
includes autos owned by your employees or members
of their households but only while used in your business
or your personal affairs.” Id. The trial court concluded
that the named insureds constituted two separate
insured entities, affording each the benefits and obliga-
tions of the policy individually. Id. at 131. As a result,
the trial court held the pickup truck driven by Johnnie
Koester as an agent for O.K. Transport, but owned by
Oscar Koester & Sons, was insured because it was a
borrowed “nonowned auto” with respect to O.K. Trans-
port. Id. According to the Court of Appeals of Indiana,
the trial court appeared to have based its conclusion,
in part, on the policy’s severability clause, which stated
No. 11-2307 13
as follows: “Except with respect to our limits of liability,
the insurance afforded applies separately to each
insured who is seeking coverage or against whom a
claim is made or suit is brought.” Id.The court of appeals identified the dispositive issue
as “whether the benefits of the policy apply to each
entity separately and individually, as the trial court
held, or whether ‘OK Transport, Inc., Oscar Koester &
Sons’ is really one single entity for purposes of borrowed
and nonowned coverage.” Id. The appellate court con-
cluded the named insured provision listing “OK Trans-
port, Inc., Oscar Koester & Sons” was ambiguous
and stated, “[t]he language of the policy does not reveal
to us whether the two entities named were to be consid-
ered as a single entity or as two separate entities.” Id.Because the court found the “named insured” portion
of the policy ambiguous, the court strictly construed it
in favor of the insured. Id. at 132.
In the case sub judice, the Policy defines “you, your
and yours” as “the insured named here, which is a COR-
PORATION.” The Policy then lists Schilli Transporta-
tion and indicates “Insured Names Continued On Back.”
On the back of the page, the Policy lists the eight other
companies, including Atlantic and WVT, on separate
lines. As an example, the first two names on the back
of this page are listed as follows:
Schilli Leasing, Inc.
Wabash Valley Transportation, Inc.
As stated, Defendants interpret the language defining
“you” as “a Corporation” to mean each corporation will
14 No. 11-2307
be treated individually while St. Paul interprets the
language to mean “you” refers to all of the corporations
listed. A reasonable person could find both interpreta-
tions reasonable. Moreover, no language imposing
joint and several liability for the deductibles exists any-
where in the Policy. Therefore, like the court in Indiana
Insurance Co. found with respect to that policy, we con-
clude the manner in which the named insureds were
listed here makes the definition of the terms “you, your,
and yours” ambiguous.
Further support for our position that the manner
in which the named insureds were listed in the Policy
makes the definition of “you, your and yours” ambiguous
is found in the First Circuit’s decision in Over the Road
Drivers, Inc. v. Transport Ins. Co., 637 F.2d 816 (1st Cir.
1980).2 In Over the Road Drivers, Inc., the issue before
the court was whether seven companies insured by a
Workmen’s Compensation Policy were jointly and sever-
ally liable for all premiums owed by any of them under
the policy. Id. at 818. Like the Policy here, the Work-
men’s Compensation Policy in Over the Road Drivers, Inc.
did not contain express language making each insured
2
While not expressly stated in the First Circuit’s opinion, the
Over the Road Drivers, Inc. court presumably applied Massachu-
setts law. Indiana and Massachusetts follow similar rules of
construction in the interpretation insurance policies. The
general rules of construction in the interpretation of insur-
ance policies that Massachusetts courts follow can be found
at Allmerica Fin. Corp. v Certain Underwriters at Lloyd’s,
London, 871 N.E.2d 418, 425 (Mass. 2007).
No. 11-2307 15
company jointly and severally liable for all premiums
owed. See id. The policy simply referred to “the named
insured” as being responsible for premium payments.
Id. The attached “Declarations Amendment Endorse-
ment” defined the “Name of Insured” as: “Old Colony
Transportation Co., Inc. and/or Bay State Realty & Ad-
vertising Co. and/or Interstate Transport Leasing Corp.
and/or Interstate-Carolina Transport Leasing Corp. and/or
Over The Road Drivers, Inc. and/or A-O.K. Leasing
Corp. and/or Vigeant Labor Leasing Corp.” Id. The
district court concluded the policy was not ambiguous
and the language of the Workmen’s Compensation
Policy did not create joint and several liability for
premium payments. Id. Therefore, the court refused to
go into the history of the formation of the policy and
make a construction different from what it thought
were the plain terms. Id.The First Circuit disagreed with the district court’s
conclusion that the policy language was clear and unam-
biguous. Id. The court concluded that “[i]nclusion of
the seven companies as ‘the named insured’ under a
single insurance contract might indicate that the
companies were to be treated as a group or joint opera-
tion.” Id. The court further stated that while the defini-
tion of “named insured” as company A “and/or” company
B suggested the possibility that each company was in-
tended to be liable for the defaults of all other
companies listed, that language was not sufficient in
and of itself to create joint and several liability. Id. How-
ever, the court could find no language in the plain terms
of the contract that unambiguously stated that liability
16 No. 11-2307
was to be separate, not joint. Therefore, the court
found the history of the formation of the policy and
the course of dealing under the policy would be
admissible to establish the intention of the parties. Id.There, the insured had submitted the insurance
policy itself, which did not contain a provision
addressing the nature of the liability for the premium.
Id. at 821. The insured also submitted evidence of the
conduct of the parties with respect to the payment of
premiums and calculations of refunds as support for
its motion for summary judgment. Id. That evidence
showed that the insurance company billed each of the
insured companies separately for its share of the total
premium and refunds were calculated separately. Id.
at 817, 821-22. The insurance company’s “own book-
keeping maintained a strict separation between the fi-
nancial accounts of each company.” Id. at 822. The insur-
ance company did not offer competent evidence
regarding the history of the formation of the insurance
contract or the course of dealing between the parties
that indicated the parties’ intention that the premium
liability would be joint and several. Id. at 819-20. After
noting the manner in which the policy defined the
“named insured” and the fact the policy included seven
companies as named insureds under a single insurance
contract, the First Circuit concluded the policy was am-
biguous. According to that court, those facts suggested
the possibility each party was intended to be jointly
and severally liable for the premiums. Id. at 822. After
considering that the policy made no reference to joint
liability and looking at the evidence presented regarding
No. 11-2307 17
the parties’ practices with respect to premium pay-
ments and the calculation of refunds, the court held that
the parties were liable under the policy only for those
premiums attributable to the coverage of its own em-
ployees. Id. at 821-22.
As stated, the Policy states that “[t]he words you, your
and yours mean the insured named here, which is a
CORPORATION.” The Policy then lists Schilli Trans-
portation’s name and address. Underneath Schilli Transpor-
tation’s name and address, the Policy states “Insured
Names Continued on Back.” On the back of that page, the
Policy provides: “Insured Names Continued:” and lists
eight more companies, but not their addresses, including
Atlantic and WVT. The fact that there are nine named
insureds, along with the manner in which those companies
were listed, could indicate that the companies were, for the
purposes of the definition of “you, your and yours,” to be
treated jointly as a group instead of separately. However,
we conclude this language is not sufficient in and of itself
to create joint and several liability among Defendants for
the deductibles here. We have found nothing in the plain
terms of the Policy which tells us unambiguously that
liability is to be joint, not separate.
However, unlike Over the Road Drivers, Inc., insufficient
evidence has been presented regarding the history of
the formation of the Policy or the Parties’ past practices
with regard to past payments of deductibles to use as
evidence of the Parties’ intent. The court in Over the
Road Drivers, Inc. had evidence of the Parties’ past
practices with regard to billing and paying for the pre-
18 No. 11-2307
mium, which was relevant evidence of their intent that
liability for the premium be separate rather than joint.
Here, there is no such evidence of the history of the
formation of the Policy or of St. Paul’s and Defendants’
past practices with regard to the payment of deductibles.
2. The Separation of Protected Persons Clause
Creates Ambiguity
In addition to arguing that the Policy is ambiguous,
Defendants also advance the additional argument that
under the “Separation of Protected Persons” clause, each
insured is only responsible for its own deductibles and
cite Steadfast Insurance Co. v. Pop Restaurants, LLC, No. 4:09-
cv-3148, 2010 WL 3155923 (S.D. Tex. Aug. 10, 2010), in
support. St. Paul argues that this argument is forfeited
because Defendants did not rely on the “Separation of
Protected Persons” clause before the district court.
“Generally, a litigant forfeits appellate review of an
issue by not raising it below.” Lesser v. Espy, 34 F.3d 1301,
1305 n.1 (7th Cir. 1994). However, we are not required to
overlook relevant provisions of an insurance policy
because the parties failed to discuss those provisions
below. See United States for Use and Benefit of H & S
Indus., Inc. v. F.D. Rich Co., 525 F.2d 760, 767 (7th Cir. 1975)
(refusing to find waiver because the issue was a matter
of interpreting the contract, which must be read as a
whole); see also Bradley v. Allstate Ins. Co., 620 F.3d 509,
519 n.5 (5th Cir. 2010) (stating an appellate court is
“not bound to overlook the relevant provisions of the
policy only because the parties failed to point to them”).
No. 11-2307 19
We have already concluded that the language in the
policy is not sufficient in and of itself to create joint
and several liability among Defendants for the deduct-
ibles. Moreover, the language of the “Separation of Pro-
tected Persons” clause creates further ambiguity with
respect to Defendants’ joint and several liability for the
deductibles and further supports reversal in this case.
For these reasons, we exercise our discretion to con-
sider this provision.
Having determined that we will exercise our
discretion to address the “Separation of Protected Per-
sons” clause, we turn to the case Defendants cite in
support of their argument that each insured is only re-
sponsible for its own deductibles. In Steadfast Insur-
ance Co., 2010 WL 3155923, at *1 (S.D. Tex. 2010), the
plaintiff, Steadfast Insurance Company (Steadfast), filed
suit against the defendants who were named insureds
on an insurance policy. Steadfast sought to recover de-
ductible amounts owed on more than 25 claims
that Steadfast had defended against and resolved for
the named insureds. Id. Steadfast argued that the de-
fendants were jointly and severally liable for claims
made against any named insured in the policy. Id.The defendants filed motions to dismiss for im-
proper venue, arguing that they did not reside in the
Southern District of Texas and that a substantial part
of Steadfast’s claim did not arise in that district. Id. In
response to the issue of whether any named insureds
were subject to specific jurisdiction, Steadfast argued
that under the policies the named insureds agreed to be
20 No. 11-2307
jointly and severally liable for payments of deductibles
owed on claims brought in the Southern District of
Texas. Id. at *4.
The deductible endorsements stated: “Our obligation
under the ‘bodily injury,’ ‘property damage,’ ‘personal
injury’ and ‘advertising injury’ coverages to pay
damages on your behalf applies only to the amount of
damages and ‘defense costs’ in excess of any deductible
amount stated in the Schedule above . . . .” Id. at *5. The
policies defined “ ‘you’ and ‘your’ as the Named Insured
shown in the declarations, as well as any other person
or organization qualifying as a Named Insured under
the policies.” Id. at *6. There was also a “separation
of insureds” provision that stated:
“Except with respect to the Limits of Insurance, and
any rights or duties specifically assigned in this policy
to the first Named Insured, this insurance applies:
a. As if each Named Insured were the only named
insured; and
b. Separately to each insured against whom
claim is made or ‘suit’ is brought.”
Id. at *6.
Steadfast argued that the separation of insureds provi-
sion had been applied in the context of coverage, not in
the context of determining who was responsible for the
payment of deductibles. Id. at *6. Steadfast further
argued that named insureds should not be considered
separately for purposes of deductible owed because
they are not considered separately for purposes of the
No. 11-2307 21
limits of insurance and because the deductibles reduce
the limits of insurance. Id.
The district court determined that Steadfast attempted
to “stretch the policies much further than their language
allows” and stated as follows:
The Court finds that, at the very best, the policies are
ambiguous as to whether Defendants are jointly and
severally liable for a claim paid on behalf of any
Named Insured. The policies do not even include
the phrase “jointly and severally” liable in their pro-
visions. Furthermore, the Separation of Insureds
provisions provides that policies shall apply
separately as to each insured against whom a suit
is brought. Even though Steadfast may be right that
courts have applied this provision in the context of
coverage rather than deductible payments, the plain
language of the provision, at the very least, creates
ambiguity as to whether all Named Insureds are
jointly and severally liable for each other’s claims.
Id. Because the insurance contract was ambiguous, the
court concluded Steadfast failed to provide the basis for
the court to exercise personal jurisdiction over the de-
fendants. Id. at *7. The court stated it made this “finding
only for the purposes of determining the venue
question, and not as a final determination on the merits
of this case.” Id.
In this case, the “Separation of Protected Persons”
provision in the Policy is very similar to the provision
in Steadfast Insurance Co. The “Separation of Protected
Persons” clause states that St. Paul will apply the agree-
22 No. 11-2307
ment “to each protected person named in the Introduc-
tion as if that protected person was the only named one
there; and separately to each other protected person.”
The provision goes on to state the limit of coverage is
shared by all protected persons. Moreover, like the
policy in Steadfast Insurance Co., the Policy here does not
include the phrase “jointly and severally liable.” Further,
the Steadfast Insurance Co. court explicitly rejected the
argument St. Paul makes here, i.e., that courts have
applied the “Separation of Protected Persons” provision
in the context of coverage rather than deductible pay-
ments. Id. at *6. In doing so, the Steadfast Insurance Co.
court stated “[e]ven though Steadfast may be right that
courts have applied [the Separation of Insureds] pro-
vision in the context of coverage rather than deductible
payments, the plain language of the provision, at the
very least, creates ambiguity as to whether all Named
Insureds are jointly and severally liable for each other’s
claims.” Id. For these reasons, we also conclude that
the “Separation of Protected Persons” provision in
the Policy creates further ambiguity, in addition to the
ambiguity created by the definition of “you, your and
yours” and the way the named insureds were listed, as
to whether Defendants are jointly and severally liable
for the deductible payments.
III. CONCLUSION
In sum, the Policy defines “you, your and yours” as the
named insured, a corporation, and then lists Schilli Trans-
portation and eight other corporations. The manner
No. 11-2307 23
in which the corporations are listed may suggest the
corporations are to be considered jointly but is not suffi-
cient in and of itself to create joint and several liability.
See Indiana Ins. Co., 587 N.E.2d at 131-32; Over the Road
Drivers, Inc., 637 F.2d at 818. Moreover, the Policy
never mentions “joint and several liability” in its provi-
sions. The Policy is ambiguous as to whether De-
fendants are jointly and severally liable for the
deductible payments on this basis alone. However, the
“Separation of Protected Persons” provision creates
further ambiguity by stating that the Policy will be
applied “to each protected person named in the Introduc-
tion as if that protected person was the only named
one there; and separately to each other protected per-
son.” Such a provision “at the very least, creates
ambiguity as to whether all Named Insureds are jointly
and severally liable for each other’s claims.” See
Steadfast, 2010 WL 3155923, at *6.
Because the Policy language is ambiguous as to joint
and several liability for the deductibles at issue, the
question of the Parties’ intent remains. Therefore, “evi-
dence concerning ‘the history of the formation of the
policy’ and the course of dealing under it would be ad-
missible, if available and relevant, to establish the inten-
tion of the parties.” Over the Road Drivers, Inc., 637 F.2d at
818 (quoting 3 Corbin on Contracts §§ 559, 579 (2d ed.
1960)). Because the district court found the Policy unam-
biguously created joint and several liability for payment
of the deductibles, that court did not need to address
issues such as (1) evidence of the formation of the con-
tract; (2) evidence of how the Parties dealt with liability
24 No. 11-2307
for the deductibles in the past; (3) the effect, if any, of
the “Right and Duty to Defend” provision in combina-
tion with the fact that, with respect to all six claims,
Schilli Transportation: (a) was named in a claim or as a
defendant in a suit; (b) received a defense from St. Paul;
and/or (c) was released from all claims by the injured
party/plaintiff as part of a settlement.3 Any issues
relevant to a determination of the Parties’ intent may be
developed on remand.
R EVERSED and R EMANDED
3
Atlantic and WVT were also released from liability in the
settlement with the Thompsons (Claim 2). The release
executed by Johnson also released all claims against Atlantic
(Claim 4). The Aguilar and Fuentas release and indemnity
agreement also released all claims against WVT (Claim 6).
2-13-12