Opry Mills Mall Limited Partnership v. Arch Insurance Company ( 2018 )

71,ED
IN THE COURT OF APPEALS OF TENNESSEE JAN 26 2018
AT NASHVILLE Clerk of the Appellate Courts
September 6, 2017 Session. Recd By
OPRY MILLS MALL LIMITED PARTNERSHIP,ET AL. v. ARCH
INSURANCE COMPANY,ET AL.
Appeal from the Chancery Court for Davidson County
No. 10-1504-IV Russell T. Perkins, Chancellor
No. M2016-01763-COA-R3-CV
The primary claim at issue in this appeal is for breach of an insurance contract. The
insured property at issue, Opry Mills Shopping Mall, sustained catastrophic damages
from the May 2010 flood in Nashville, Tennessee. Following the flood, the insureds
contended the policy provided $200 million of coverage. The insurers insisted the policy
limit for the claim was $50 million pursuant to the High Hazard Flood Zones Limit due to
the fact the location of the Mall had been designated on a Flood Insurance Rate Map as a
Special Flood Hazard Area. The trial court summarily ruled that the policy limits were
$200 million finding, inter alia, the insured properties that were limited to $50 million of
coverage were listed on the High Hazard Flood Locations schedule in Endorsement 6 of
the policy, and Opry Mills Shopping Mall was not listed. Therefore, the trial court ruled
that the policy limits for the claim were $200 million. Following a lengthy trial, the jury
awarded the insured a judgment of almost $200 million. The insurers appealed. We have
determined the policy limits are $50 million. Because the insurers paid the insureds $50
million before the commencement of this action, which is all the insurers are obligated to
pay on the claim, the judgment of the trial court is reversed. We have also determined
that the trial court did not err by summarily dismissing the insureds' alternative claim that
was based on promissory estoppel.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed
and Remanded
FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which D.
MICHAEL SWINEY, C.J. and RICHARD H. DINKINS,J.,joined.
William L. Harbison, Phillip F. Cramer, and Lauren Z. Curry, Nashville, Tennessee, and
Peter E. Kanaris and David E. Heiss, Chicago, Illinois for the appellants Arch Insurance
Company; Aspen Insurance UK Ltd.; General Security Indemnity Company of Arizona
Hiscox Inc., Ironshore Specialty Insurance Company; Lexington Insurance Co.; Liberty
Mutual Fire Insurance Company; Certain Underwriters at Lloyds of London; Maiden
Specialty Insurance Co.; RSUI Indemnity Company; Sompo Japan Insurance Company
of America; Tokio Marine & Nichido Fire Insurance Co., Ltd. (U.S. Branch); Torus
Specialty Insurance Co.; and XL Insurance America, Inc.
Byron R. Trauger, Paul W. Ambrosius, Nashville, Tennessee, and J. Randolph Evans,
and Anthony W. Morris, Atlanta, Georgia, attorneys for appellant Zurich American
Insurance Company.
Donald Capparella and Gregory L. Cashion, Nashville, Tennessee, and Andrew J.
Detherage and Charles P. Edwards, Indianapolis, Indiana, for the appellees Simon
Property Group L.P. and Opry Mills Mall Limited Partnership.
OPINION
Simon Property Group, L.P. ("Simon") is a real estate conglomerate that owns
hundreds of real estate ventures and commercial properties.1 One of the real estate
ventures Simon owned during the period relevant to this appeal was Opry Mills Mall
Limited Partnership ("Opry Mills"), which owns Opry Mills Shopping Mall ("the Mall")
in Nashville, Tennessee.2
At all times relevant to this appeal, Simon, its ventures and properties were
insured under a global unscheduled insurance policy ("the Policy"). At the time of the
May 2010 flood at issue, the Mall was insured under the Policy which afforded a
maximum aggregate of coverage of one billion dollars. The risk of loss was shared by
numerous insurance companies that collectively agreed to underwrite the Policy based on
percentages of liability in layers of coverage. This appeal involves two layers of coverage
between $50 million and $200 million.
1
In the defendants/appellees' brief, they state that Simon is the world's largest retail real estate
investment trust. As of the 2010 flood, Simon was "a $60 billion publicly-traded S&P 500 company that
own[ed] and manage[d] hundreds of real estate holdings located throughout the world." They go on to
state: "Today, Simon's market capitalization exceeds $100 billion and it owns or has an interest in 387
properties, comprising 263 million square feet of lease area."
2
As Simon and Opry Mills note in their brief, Opry Mills Mall Limited Partnership was acquired
in 2007 by a joint venture between Simon and Farallon Capital Management. The appellees go on to state
that Opry Mills Mall Limited Partnership "was not a subsidiary of Simon at the time the Mall was
acquired. Simon, through affiliated special purpose entities, owned a 50% interest in SPG-FCM Venture,
LLC, a Delaware limited liability company which is the joint venture company that acquired The Mills
Corporation and all of its assets, including the Opry Mills Shopping Mall, in 2007." Although it is not
germane to the issues on appeal, it appears that Simon was the sole or majority owner of Opry Mills Mall
Limited Partnership at the time of the flood in 2010 that gave rise to the claim at issue.
- 2-
This action arises from one of the worst floods in Nashville's history which
submerged the Mall in up to 10 feet of water. The flood resulted from a record amount of
rain that fell on May 1 and 2, 2010, from a slow moving weather system. Several rainfall
records in the area were broken, and the Cumberland River, which is adjacent to the Mall,
crested at over 51 feet in Nashville, exceeding a level not experienced since 1937.
When the Mall parking lot became submerged under water, the decision was made
to close the Mall on Sunday, May 2. The following day, the entire Mall was completely
submerged, and it remained closed for months.3 Immediately thereafter, the parties
agreed to engage Crawford & Company ("Crawford") to serve as the claim adjuster, and
Crawford was on the ground as soon as the property became accessible. When Crawford
representatives first accessed the property on May 5, the flood water had not yet receded.
By the next day, the water had receded and Crawford representatives were able to
observe the damage. Thereafter, Crawford representatives participated in daily meetings
with contractors hired by Simon to remediate the damage. These meetings involved what
work was to be done and how it was to be done.
After Crawford reviewed the insured location, the flood conditions, and the Policy,
it reached the conclusion that the Mall was located in a High Hazard Flood Zone, as that
term was defined in the Policy, for which the limit of coverage was $50 million. Based on
this and Crawford's determination that the compensable damages would exceed $50
million, on July 20, 2010, Crawford recommended that the insurers pay the $50 million
High Hazard Flood Zones Limit. Soon thereafter, the insurers remitted $50 million to the
insureds. On July 30, 2010, the insurers formally notified Simon and Opry Mills that they
were denying coverage for any amount in excess of$50 million.
On September 14, 2010, Simon and Opry Mills ("Plaintiffs"), commenced this
action in which they asserted claims against fifteen insurance companies that participated
on a prorate basis in providing layers of coverage between $50 million and $200 million
("Defendants").4 The insurance companies that participated in the first $50 million of
3
Most of the Mall remained closed until March 29, 2012, although a few tenants opened sooner.
For example, anchor tenant Bass Pro Shop opened on September 15, 2010, - just four months after the
flood - with other large tenants following suit.
4
For the layer of coverage between $50 million and $100 million, the excess insurers (along with
their percentage of participation) are: XL Ins. Am. Inc. 10%, Arch Ins. Co. 5%,Zurich Am. Ins. Co. 10%,
Tokio Marine & Nichido Fire Ins. Co., Ltd. 5%, Lloyds Kiln Syn. No. 510 (Kiln Underwriting Ltd. and
Chaucer Syn. No. 1084 (Chaucer Corporate Capital No. 2 Ltd.)) 5%, Lloyds Syn. No. 3624 (Hiscox Inc.)
7.5%, Ironshore Speciality Ins. Co. 5%, RSUI Indem. Co. 10%, Lloyds Syn. No. 033 (Hiscox) 7.5%,
Lexington (SCOR/China Re) 10%, Liberty Mutual Fire Ins. Co. 5%,Essex Ins. Co. 5%.
For the layer of coverage between $100 million and $200 million, the excess insurers (along with
their percentage of participation) are: XL Ins. Am. Inc. 10%, Arch Ins. Co. 5%,Zurich Am. Ins. Co. 20%,
(continued...)
-3-
coverage are not involved in this appeal because that sum was paid prior to the
commencement of this action.
The complaint asserted numerous alternative claims but only two are relevant in
this appeal. The complaint asserted a claim for breach of contract for the wrongful denial
of coverage in excess of $50 million. The complaint also asserted an alternative claim of
promissory estoppel, which is premised on the allegation that Defendants made pre-flood
representations that the Mall had $200 million in flood coverage.5
Following discovery, the parties filed various motions on numerous issues
including motions for partial summary judgment. Plaintiffs filed a motion for partial
summary judgment contending the Policy provided $200 million of coverage because the
$50 million High Hazard Flood Zones coverage limitation did not apply due to the fact
the Mall was not one of the locations identified under Endorsement 6 as one of the High
Hazard Flood Locations.6 Defendants filed a joint motion for partial summary judgment
Tokio Marine & Nichido Fire Ins. Co., Ltd. 10%, Maiden Specialty Ins. Co. 5%, Gen. Sec. Indem. Co. of
Az. 5%, Lloyds Kiln Syn. No. 510 (Kiln Underwriting Ltd. and Chaucer Syn. No. 1084 (Chaucer
Corporate Capital No. 2 Ltd.)) 2.5%, Ironshore Speciality Ins. Co. 2.5%, Torus Spec. Ins. Co. 5%, Sompo
Japan Ins. of Am.25%, Aspen Ins. UK Ltd. 5%,RSUI Indem. Co. 5%.
5
Plaintiffs amended their complaint several times and the operative complaint in this case is the
Third Amended Complaint filed on September 19, 2011. The complaint, as amended, asserted claims of
breach of contract, estoppel, declaratory judgment, bad faith, and violation of the Tennessee Consumer
Protection Act("TCPA"). It also asserted alternative claims of promissory estoppel and negligence.
6
High Hazard Flood Locations and High Hazard Flood Zones are defined terms within the
Policy and they are always printed in bold font. The High Hazard Flood Locations listed in
Endorsement 6 are:
Chicago Premium Outlets, Aurora, IL
Coconut Point, Estero, FL
Coral Square, Coral Springs, FL
Crystal River, Crystal River, FL
Dadeland Mall, Miami, FL
Dare Center, Kill Devils Hill, NC
Desoto Square Mall, Bradenton, FL
Gulf View Square, Port Richey, FL
Miami International, Miami, FL
Newport Centre, Jersey City, NJ
Newport Crossing, Jersey City, NJ
Newport Plaza, Jersey City, NJ
Paddock Mall Off-site Storage, Ocala, FL
Petaluma Village Premium Outlets, Petaluma, CA
The Esplanade, Kenner, LA
Washington Square Mall, Indianapolis, IN
4
contending the $50 million limitation of coverage applied because the Mall was located
in a High Hazard Flood Zone as that term is defined in the Policy. Defendants also
contended that the listing of High Hazard Flood Locations in Schedule 6 applied only
to "the deductibles section" ofthe Policy, not to the limitation of coverage.
The trial court held a hearing on February 11, 2015, on the cross motions for
summary judgment related to the Policy limits and held hearings on March 3 and 4, 2015,
on the remaining motions. The trial court issued an order and memorandum on March 13,
2015, in which it stated that it was applying the traditional Tennessee summary judgment
standard because the case was filed before the standard in Tenn. Code Ann. § 20-16-101
became law. The court also stated that because the Policy did not contain a choice of law
provision and because the Policy was delivered to Simon whose principal office was in
Indiana, the court was applying Indiana law to interpret the Policy.
As stated in the order entered on March 13, 2015, the trial court granted Plaintiffs'
motion for partial summary judgment and denied Defendants' cross motion on the limits
of coverage. Applying Indiana law to interpret the Policy, the trial court found that the
$200 million limitation applied. The court stated in pertinent part "that a mall situated in
a High Hazard Flood Zone had to be listed as a High Hazard Flood Location to be
Subject to the $50 Million Sublimit." Further, the court "discern[ed] no ambiguity in the
parties providing a list of malls which are 'High Hazard Flood Locations' immediately
below a broader definition of 'High Hazard Flood Zones,' and the undisputed fact that
Opry Mills Mall was not on the list in 2010." The trial court granted summary judgment
to Defendants on the estoppel, TCPA, and bad faith claims.
The case then proceeded to trial before a jury. Plaintiffs introduced evidence that
they incurred expenses and business losses as a result of the flood that included, inter
alia, $55 million for remediation expenses, $93.4 million in replacement costs, and $41
million in lost income during the shutdown of Opry Mills. Defendants challenged the
damages claimed by Plaintiffs on numerous grounds. The jury returned a verdict in favor
of Plaintiffs, finding damages in the following amounts on Plaintiffs' breach of contract
claims under the Policy:
Remediation Costs: $ 55,060,642
Replacement Costs: $ 89,350,351
Business Interruption Losses: $ 41,945,081
Consequential Damages: $ 16,831,605
Loss Adjustment Expenses: $ 936,137
The total award of damages, including additional consequential damages, was
$204,123,816. After giving Defendants a credit for the $50 million paid on the claim
prior to the commencement of this action and "[a]fter deductions for the deductible and
participation by insurers who were not Defendants," the trial court apportioned the
-5-
covered damages among Defendants, that being the insurers that participated in this
action. Pursuant to the Order on Jury's Verdict entered on November 5, 2015, Plaintiffs
were awarded a judgment of $146,373,816 against the insurers that are Defendants in
proportionate amounts as specified in the order. On April 11, 2016, the trial court entered
a final judgment of $146,373,816 in favor of Plaintiffs and additionally awarded
Plaintiffs $373,535.28 in discretionary costs. The judgment additionally stated that
Plaintiffs were not entitled to recover prejudgment interest.
Defendants subsequently filed motions for a new trial and for judgment
notwithstanding the verdict. The trial court denied these motions. Defendants then timely
appealed.
ISSUES
The primary issue presented for our review is whether the applicable limit of
coverage for flood damage is $50 million or $200 million. If we rule that the $200
million limit applies, Defendants want us to additionally review the trial court's other
rulings including its exclusion of evidence, its directed verdict rulings, certain jury
instructions, the verdict form, and the trial court's denial of Defendants' motions for a
new trial and judgment notwithstanding the verdict.7 Conversely, if we rule that the $50
million limit applies, Defendants' state that their additional issues are moot.
As for the issues raised by Plaintiffs, if we rule that the $200 million limit applies
Plaintiffs want us to determine if they are entitled to recover prejudgment interest.
Conversely, if we rule that the $50 million limit applies, Plaintiffs want us to determine
whether reinstatement of their alternative claim of estoppel is required.8
ANALYSIS
I. INTERPRETATION OF THE POLICY
The primary contentions of the parties on this issue, that being the limit of
coverage for flood damage, can be summarized as follows.
Defendants contend the facts that are most relevant to this issue can be
summarized in three sentences:
A complete statement of the issues presented for our review by Defendants can be found at
2017 WL 2691709, at *48 (the issues are set forth on page 1 of the brief; however, they appear on page
48 on Westlaw).
8
A complete statement of the issues presented for our review by Plaintiffs can be found at 2017
WL 4707981, at *xiv — xvi.
6
First, the Simon Policy provides $50 million of coverage for floods in high
hazard flood zones as defined by the applicable government flood map.
Second, at the time of the May 2010 flood, the applicable government flood
map reflects Opry Mills being situated in a high hazard flood zone. Thus . .
. this entire appeal may be resolved through application of the plain
language of the Simon Policy and the FEMA-designated location of Opry
Mills.
(Internal citations to the record omitted).
Plaintiffs contend the policies that have insured Simon, its ventures and properties
since Opry Mills and the Mall were acquired in 2007, have always listed the locations
which only have $50 million in flood coverage under "High Hazard Flood Locations."
They also rely on the fact the Mall has never appeared on that list.9
Applying Indiana Law, the trial court found that the $200 million limitation
applied. Specifically, the court stated "that a mall situated in a High Hazard Flood Zone
had to be listed as a High Hazard Flood Location to be Subject to the $50 Million
Sublimit." We respectfully disagree.
The interpretation of an insurance policy is a question of law for the court and is
thus reviewed de novo. State Farm Mut. Auto. Ins. Co. v. Jakubowicz, 56 N.E.3d 617,
619 (Ind. 2016). When interpreting insurance contracts, we are to construe them in the
same manner as any other contract. Allstate Ins. Co. v. Dana Corp., 759 N.E.2d 1049,
1054 (Ind. 2001). Courts cannot ignore the plain words of an insurance contract and are
to "make all attempts to construe the language in a contract so as not to render any words,
phrases, or terms ineffective or meaningless." American Family Life Assur. Co. v.
Russell, 700 N.E.2d 1174, 1177 (Ind. Ct. App. 1998)(citing Farthing v. Life Ins. Co. of
N. America, 500 N.E.2d 767, 772 (Ind. Ct. App. 1986) and Bicknell Minerals, Inc. v.
Tilly, 570 N.E.2d 1307, 1316 (Ind. Ct. App. 1991)).
Furthermore, a policy "must be reasonably construed, and the court may not find
coverage unless the language of the policy admits liability." Gallant Ins. Co. v. Allstate
Ins. Co., 723 N.E.2d 452, 455 (Ind. Ct. App. 2000)(citing Allstate Co. v. Kepchar, 592
N.E.2d 694, 696 (Ind. Ct. App. 1992)). "[E]xceptions, limitations and exclusions must be
plainly expressed in the policy." American Family Life Assur. Co., 700 N.E.2d at 1177.
9
Plaintiffs also argue that regardless of this court's interpretation, Opry Mills was built two feet
above the flood plain and therefore, not subject to the limitation. However, the trial court ruled that
Plaintiffs' waived this argument because Plaintiffs did not plead it in their Third Amended Complaint.
We agree.
7
"However, if the language of the policy is ambiguous, then the court may apply
the rules of construction in interpreting the language.", Askren Hub States Pest Control
Services, Inc. v. Zurich Ins. Co., 721 N.E.2d 270, 275 (Ind. Ct. App. 1999) (citing Eli
Lilly and Co. v. Home Ins. Co., 482 N.E.2d 467, 470 (Ind. 1985)). In determining
whether an ambiguity exists and if so, how courts are to interpret that ambiguity, Indiana
courts have previously stated:
An ambiguity does not arise merely because the two parties proffer
differing interpretations of the policy language. Lexington Ins. v. American
Healthcare Providers, 621 N.E.2d 332, 336 (Ind.Ct.App.1993), trans.
denied. Rather, the policy is ambiguous only if it is "susceptible to more
then [sic] one interpretation and reasonably intelligent persons would differ
as to its meaning." Commercial Union Ins. v. Moore, 663 N.E.2d 179, 181
(Ind.Ct.App.1996), trans. denied. See Masonic Accident Ins. Co. v.
Jackson, 200 Ind. 472, 481, 164 N.E. 628, 631 (1929). If there is an
ambiguity, an insurance contract should be interpreted in the light most
favorable to the insured. Eli Lilly, 482 N.E.2d at 470. The contract should
be construed to further its basic purpose of indemnity.
Id.
As we begin our analysis of the policy limits issue, it is important to understand
the significance of certain terms that are used in the Policy. Two important terms, which
are defined in the Policy, are: "High Hazard Flood Zones" and "High Hazard Flood
Locations." Two other important terms that appear in the Policy are the "National Flood
Insurance Program" and "Special Flood Hazard Area."
Except for floods that occur in High Hazard Flood Zones, the Policy provides
coverage up to $200 million. Defendants rely on Clause 3 of the Policy to insist that the
$50 million limit applies to the claim at issue. Clause 3, which pertains to coverage for
damage resulting from a flood, reads in pertinent part:
3. Limits of Liability
In the event of loss or damage insured under this policy, this Insurer
shall be liable for its proportional share of $1,000,000,000 per occurrence
except as respecting the following, excess of the policy deductibles:
•0•
$200,000,000 per occurrence and in the aggregate in any one
policy year as respects losses caused by flood except;
-8-
$50,000,000 per occurrence and in the aggregate in any one
policy year as respects losses caused by flood in High
Hazard Flood Zones.(High Hazard Zones are within the 100
Year Flood plane or equivalent).
(Bold in original).
The term High Hazard Flood Zones is defined in Endorsement 6 to the Policy as:
a) all property at a "location" that is partially or totally situated in an area
which at the time of loss or damage has been designated on a Flood
Insurance Rate Map (FIRM) to be a Special Flood Hazard Area (SFHA),
and/or
b) all property in areas where the National Flood Insurance Program (NFIP)
is not in effect, and where all property at a "location" is partially or totally
situated in an area which is within a 100 year flood plain or its worldwide
equivalent.
Special Flood Hazard Area (SFHA): The areas of a Flood Insurance Rate
A.. . AE.. . .10
Map(FIRM)identified as Zone(s): A
It is undisputed that Flood Zone "AE" is identified in the Policy as a Special Flood
Hazard Area as designated on the Flood Insurance Rate Map. Moreover, the trial court
correctly found that the Mall was located in a High Hazard Flood Zone. Therefore,
Defendants insist that the $50 million High Hazard Flood Zones limit applies.
Plaintiffs counter this argument by contending that Clause 3 of the Policy must be
read in conjunction with Endorsement 6 to the Policy which defines High Hazard Flood
Zones and directly below that definition states:
HIGH HAZARD FLOOD LOCATIONS are defined as follows:
Chicago Premium Outlets, Aurora, IL
Coconut Point, Estero, FL
Coral Square, Coral Springs, FL
Crystal River, Crystal River, FL
Dadeland Mall, Miami, FL
10
This definition appears in Endorsement 6 — AMENDATORY ENDORSEMENT —
DEFINITIONS.
9
Dare Center, Kill Devils Hill, NC
Desoto Square Mall, Bradenton, FL
Gulf View Square, Port Richey, FL
Miami International, Miami, FL
Newport Centre, Jersey City, NJ
Newport Crossing, Jersey City, NJ
Newport Plaza, Jersey City, NJ
Paddock Mall Off-site Storage, Ocala, FL
Petaluma Village Premium Outlets, Petaluma, CA
The Esplanade, Kenner, LA
Washington Square Mall, Indianapolis, IN
Based on Endorsement 6, Plaintiffs contend the $50 million limitation was only
applicable to the "locations" listed under High Hazard Flood Locations. Defendants
respond by insisting that the High Hazard Flood Locations identified on Schedule 6
above applied only to the deductibles section of the Policy. They emphasize this point by
noting that Endorsement 6 is the only other place this term is found in the Policy.
Moreover, Defendants note that this portion of the Policy, which applies to the
deductible, not coverage, reads as follows:
4. Deductible
• ••
E. In the event of property damage and/or time element loss as respect
flood occurring in High Hazard Flood Locations, the sum to be
deducted shall be the greater of $500,000 per occurrence or the
amount collectible under the National Flood Insurance Program.
For these reasons, Defendants contend the list of locations in Schedule 6 as High Hazard
Flood Locations applied only to a higher deductible and the listing has no application to
the limits of coverage provided in the event of a flood.
In its ruling on this issue the trial court stated that it "discern[ed] no ambiguity in
the parties providing a list of malls which are 'High Hazard Flood Locations'
immediately below a broader definition of 'High Hazard Flood Zones,' and the
undisputed fact that Opry Mills Mall was not on the list in 2010." We agree that there is
no ambiguity and that the definitions of these terms are in close proximity to each other;
however, we disagree with the emphasis the trial court placed on that proximity.
We find it significant that the only place the defined term High Hazard Flood
Locations is applied in the Policy is in a section of the Policy that only pertains to the
- 10 -
amount of the deductible, not the limit of coverage. The only place the term is applied is
in paragraph 4 of the Policy, which reads as follows:
4. Deductible
•• •
E. In the event of property damage and/or time element loss as respect
flood occurring in High Hazard Flood Locations, the sum to be
deducted shall be the greater of $500,000 per occurrence or the
amount collectible under the National Flood Insurance Program.
Thus, the fact that the Mall is not one of the locations listed in Endorsement 6 to
the Policy is not relevant when considering the amount of coverage under the Policy.
What is relevant and controlling is Clause 3 of the Policy that pertains to the amount of
coverage in the event of a flood.
Clause 3 expressly states under the heading "Limits of Liability" that the
aggregate amount of coverage is $50,000,000 per occurrence "as respects losses caused
by flood in High Hazard Flood Zones." The Limits of Liability section goes on to
provide that the term High Hazard Flood Zones is defined as: "all property at a
`location' that is partially or totally situated in an area which at the time of loss or
damage has been designated on a Flood Insurance Rate Map (FIRM) to be a Special
Flood Hazard Area (SFHA). . .." The Limits of Liability section further defines "Special
Flood Hazard Area (SFHA)" as "The areas of a Flood Insurance Rate Map (FIRM)
A.. . AE. . ."
identified as Zone(s): A
It is undisputed that the Mall was "partially or totally situated" in an area which at
the time of loss had been identified as AE on a Flood Insurance Rate Map; therefore, the
Mall was in a High Hazard Flood Zone. Because it was in an area designated as a High
Hazard Flood Zone at the time of the loss, the Limits of Liability for losses caused by
flood at the Mall were $50,000,000, not $200,000,000 million.
The foregoing notwithstanding, Plaintiffs contend the limits of liability were
$200,000,000 because the term "location," when it appears in the Policy in quotation
marks, must be given the same meaning as the defined term High Hazard Flood
Locations. More specifically, Plaintiffs insist that we should equate "location" with High
Hazard Flood Locations so that, for example, Endorsement 6, which reads, 141
property, at a 'location' would be interpreted as meaning 141 property, at a HIGH
HAZARD FLOOD LOCATION." We disagree.
The Policy provides an expressed and specific definition for the term High
Hazard Flood Locations which always appears in the Policy in bold font and upper case
-11-
letters. The single word "location," when it appears in quotation marks, is never in bold
font or upper case letters. Moreover, the Policy does not state that words which merely
appear in quotation marks shall be considered defined terms. Even more significant is the
fact there is no definition for the term "location" in the Policy.
Simply stated, we find no basis in law or fact to equate the undefined term
"location" with the defined term High Hazard Flood Locations. There is no reason to
conclude that the drafters of the Policy intended for the term "location" and High
Hazard Flood Locations to be synonymous. Therefore, we are unable to conclude that
they are.
Plaintiffs also contend that our interpretation creates an ambiguity and renders the
term "location" meaningless, which is contrary to Indiana precedent. See American
Family Life Assur. Co., 700 N.E.2d at 1177 (Courts are to "make all attempts to construe
the language in a contract so as not to render any words, phrases, or terms ineffective or
meaningless.") Specifically, Plaintiffs assert that "location" becomes meaningless
because, under our interpretation, the phrase "property at a 'location' would have the
same meaning without the words "at a 'location.'" Once again, we respectfully disagree.
Our interpretation does not render either term ambiguous or meaningless. Both
"location" and "property" retain significance and purpose. While both terms are used
throughout the Policy, neither term is defined in the Policy. From a review of the entire
Policy, we have determined that "location" identifies where Simon's property is located,
or to be found, while "property" identifies what is to be found at that location." That is,
there may be multiple properties at one location. We see no basis in law or fact to give
these terms other or additional meanings.
To explain the distinction between "location" and "property," we turn to
Endorsement 12, Key Tenant Incentive Insurance, in the Policy which states:
If any tenant has been paid an incentive by the Insured to locate its
operations at an Insured Location and if, as a result of insured loss or
damage to property of the type insured, that tenant cancels its lease
pursuant to the lease agreement or by operation of law, the unamortized
amount of the incentive to the extent not paid as improvements or
betterments shall be recoverable by the insured.
This distinction can be seen in the Policy's definition of "Attraction Properties" which states
"Attraction Properties [are] [p]roperties not owned or operated by the Insured, which attract potential
customers to the vicinity of the Insured's location." Here, location is used to describe the entire area
which encompasses Simon's property at that location.
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(emphasis added),I2 As stated above, the Policy uses "location" as a broad term that
encompasses what is to be found at that location. (i.e., Simon's property). Specifically
here, location means the site or vicinity where Simon's property may be found while
property is used to describe what is insured at that site (i.e., property at that location).
Another illustration is contained within Endorsement 12, Supplemental Contingent
Rental Insurance, which reads:
The Rental Insurance coverage is extended to cover the Actual Loss
Sustained by the Insured consisting of the consequential reduction of rental
income of the Insured which is solely the result of physical loss or damage
of the type insured against to property of the type insured situate[sic] within
two (2) miles of an Insured Location.
(emphasis added). The terms "location" and "property" still retain their same
characteristics. "Location" is used as a broad term to include the physical site or vicinity
where Simon's property is located while the term "property" identifies what is to be
found at that location. Furthermore, the property is what is insured at that location.
Therefore, when we apply this understanding to the endorsement at issue, the
parties' intent is clear. High Hazard Flood Zones and High Hazard Flood Locations
are defined terms that apply only when used within the Policy. Both terms are only used
once within the Policy: High Hazard Flood Zones in the Limits of Liability section and
High Hazard Flood Locations in the Deductible section. Therefore, if Opry Mills meets
the criteria of High Hazard Flood Zones, the $50 million limitation applies.
The term High Hazard Flood Zones is defined as:
[A]11 property at a "location" that is partially or totally situated in an area
which at the time of loss or damage has been designated on a Flood
Insurance Rate Map(FIRM)to be a Special Flood Hazard Area(SFHA)...
Special Flood Hazard Area(SFHA):
The areas of a Flood Insurance Rate Map (FIRM)identified as Zone(s): A,
AO, AH, A 1-A30, AE, A99, AR, AR/A, AR/AE, AR/A 1-A30, AR/AH,
AR/AO, V, V1-V30, VE or VO.
12
While "Insured Location" is capitalized, it is not a defined term within the Policy.
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Here, "location" and "property" retain their same meanings as discussed above.
"Location" refers to the physical site or vicinity and "property" refers to what is to be
found at that physical site or vicinity.
Based on the foregoing reasoning, we shall now determine whether the "property"
or the "location" must be situated within a SFHA. This turns on the Policy's use of the
word "that" immediately preceding "location." In deciding which word "that" modifies,
we look to the last-antecedent rule. As the Indiana Supreme court so succinctly
explained,
The "last antecedent rule" is a textual principle stating "that where one
phrase of a statute modifies another, the modifying phrase applies only to
the phrase immediately preceding it," unless there is a comma between the
modifier and the preceding phrase. Wandrey, 334 B.R. at 430-31 (quoting
O'Kane v. Apfel, 224 F.3d 686, 690 (7th Cir.2000) and 73 Am.Jur.2d
Statutes §§ 137-39 (2005)). See also City of Ft. Wayne v. Consol. Elec.
Distribs., Inc., 998 N.E.2d 733, 737 (Ind.Ct.App.2013)(quoting FLM, LLC
v. Cincinnati Ins. Co., 973 N.E.2d 1167, 1176 (Ind.Ct.App.2012) ("the
descriptive words in a phrase should, in the absence of punctuation, be
referred to their nearest antecedent")), trans. denied.
In re Howell, 27 N.E.3d 723, 727 (Ind. 2015).
While the Howell court applied this rule to interpret a statute, the principle holds true in
this case. Since there is no comma between the modifier and the preceding phrase, "that"
modifies "location." Therefore, if the Opry Mills location is partially situated in a SFHA
it is subject to the $50 million sublimit. On the FIRM, a part of the Opry Mills location is
situated within a SFHA (specifically, Zone AE). This is undisputed within the record.
Therefore, the $50 million limit applies to Opry Mills.
To briefly conclude, this court finds no ambiguity in the Policy provisions at issue.
In applying Indiana law, we have determined that the plain meaning of the Policy calls
for us to determine whether Opry Mills fits within the definition of High Hazard Flood
Zones and not High Hazard Flood Locations. Since Opry Mills is partially located
within one of the zones listed under High Hazard Flood Zones, the $50 million sublimit
applies.
II. ESTOPPEL CLAIM
Plaintiffs also contend the trial court erred in granting summary judgment in favor
of Defendants on Plaintiffs' estoppel claim. Conversely, Defendants contend the trial
court properly dismissed Plaintiffs' estoppel claim because, inter alia, Plaintiffs failed to
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establish an essential element of an estoppel claim, that either of them reasonably relied
on the promise to their detriment.13
Plaintiffs asserted an alternative estoppel claim alleging that, if the trial court
found that the Policy provided only $50 million in flood coverage, Defendants were
estopped from denying the Policy provided $200 million of flood coverage based on the
multiple Certificates of Insurance ("Certificates") Defendants authorized Aon Risk
Services Central, Inc. ("Aon") to issue in 2008-2010.14 Plaintiffs rely on the fact the
Certificates Aon issued represented that $200 million in flood coverage was available for
the Mall. More specifically, Plaintiffs rely on the fact that three months before the flood,
[a Certificate] issued on behalf of Appellants ("Insurers") stated that the
Mall had $200 million in flood coverage under the 2010 insurance policies
at issue ("Policies"). Over the three years before the flood, six such . . .
Certificates were issued, all stating the Mall had $200 million in flood
coverage. The other documents created at the time the Policies were issued,
and for years before that, said the same thing.
• ••
[Also] [i]n 2010, [a secured lender] reviewed the . . . Certificate for that
policy year and concluded that there was no need for further action because
the . . . Certificate showed proof of adequate insurance. If the certification
had shown a reduction in the amount of flood coverage from the preceding
year, that would have raised a "red flag" and [the secured lender] would
have made inquiries about why the coverage was reduced. This, in turn,
would have brought the issue to Opry Mills' attention, providing it with an
opportunity to address any issues regarding the flood limits applicable to
the Mall before a loss occurred.
13
Defendants also contend the trial court correctly ruled on the estoppel issue because, inter alia,
Aon, which was solely responsible for issuing the Certificates, was Simon's agent, Defendants "played no
role in the creation or issuance of the [C]ertificates," and Aon never sent Defendants copies of the
certificates once they were issued. However, we find it unnecessary to address the issue of Aon's
potential agency relationship.
14
Plaintiffs asserted claims against Aon in this action but Aon is not party to this appeal. Aon is a
global provider of insurance related services. Aon was hired by Simon to facilitate the issuance of
Simon's one billion dollar property insurance policy. Defendants contend that Aon was acting on behalf
of Simon at all material times. Plaintiffs contend Aon acted as an agent on behalf of Defendants at all
material times including the issuance of the Policy and in the issuance of the Certificates that pertain to
the estoppel claim. Because the estoppel claim can be resolved based on the lack of reliance, we have
determined it is not necessary to determine the disputed agency issues as they pertain to Aon.
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(Internal citations to the record omitted). The secured lender referenced immediately
above is Landesbank Hessen-Thuringen Girozentrale, a commercial bank based in
Germany that is commonly referred to as "Helaba," which has a substantial secured
interest in the Ma11.15
What Plaintiffs are contending is that they relied on Defendants to issue proper
Certificates to its secured lender, Helaba, that Defendants failed to do so, and Plaintiffs
relied on this to their detriment because if the Certificates had been properly issued,
Helaba would have notified Plaintiffs of the lower coverage amount.16 The trial court was
not persuaded by this argument and neither are we because Plaintiffs' reliance theory is
too far attenuated.
Pursuant to Indiana law, estoppel "refers to a preclusion from asserting rights by
an insurance company or an abatement of rights and privileges of the insurance company
where it would be inequitable to permit the assertion." Employers Ins. of Wausau v.
Recticel Foam Corp., 716 N.E.2d 1015, 1028 (Ind. Ct. App. 1999)(quoting 46 C.J.S.
Insurance § 786 (1993))(footnotes omitted). Like Tennessee, Indiana law recognizes an
element of equitable estoppel as "the misleading of a party entitled to rely on the acts or
statements in question and a consequent change of position to his detriment." Id.(quoting
United Services Auto. Ass'n v. Caplin, 656 N.E.2d 1159, 1163 (Ind. Ct. App. 1995)); see
Barnes & Robinson Co., Inc. v. OneSource Facility Servs., Inc., 195 S.W.3d 637, 645
(Tenn. Ct. App. 2006)("An important component of the doctrine of promissory estoppel
is 'detrimental reliance' because the plaintiff must show not only that a promise was
made, but also that the plaintiff reasonably relied on the promise to his detriment.")
In its order granting summary judgment to Defendants on this issue, the trial court
concluded that neither Opry Mills nor Simon "recall seeing the [Certificates] before the
May 2, 2010 flood and the record establishes that Opry Mills and Simon did not do
anything or refrain from doing anything, in reliance on the [Certificates] that would
support a claim against [Defendants]." We agree and find, as the trial court did, that this
material fact is not in dispute and summary judgment was proper.
Having closely examined Plaintiffs' claim of reliance on the Certificates, we note
that the only entity that may have relied on the Certificates was Helaba. However, and
15
Helaba issued a loan to Opry Mills in 2007 in the principal amount of $280 million. The loan is
secured by real and personal property and other assets of Opry Mills. Helaba asserted a separate claim
based on the fact that it "is a loss payee under the insurance policies at issue in this lawsuit and has certain
rights with respect to the proceeds of those policies." However, Helaba is not a party to this appeal.
16
That is, the Certificates should have stated there was $50 million in coverage and not $200
million. Thus, Helaba would have raised concerns with Plaintiffs about the lower insurance level because
the loan issued in 2007 required Plaintiffs to maintain $200 million in insurance.
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significantly, Helaba is not a party to this appeal. Moreover, the trial court expressly
found that Helaba did not rely on the Certificates when it granted judgment to the Excess
Insurers on Helaba's separate estoppel claim.
We agree with the trial court's conclusion that there is no evidence to support a
finding that Plaintiffs relied on the Certificates to their detriment. Accordingly, we affirm
the grant ofsummary judgment in favor of Defendants on Plaintiffs' claim of estoppel.
IN CONCLUSION
The judgment of the trial court is reversed, and this matter is remanded with costs
of appeal assessed against Plaintiffs.
FRANK G. CLEMENT JR., P.J., M.S.
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