Ins Co of NA CIGNA v. Baughman ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
INSURANCE COMPANY OF NORTH AMERICA
(CIGNA); UNITED STATES FIRE INSURANCE
COMPANY,
Plaintiffs-Appellees,
v.
BETTY B. BAUGHMAN, Personal
Representative of the Estate of Edward
Clinton Baughman, Deceased; CHERYL
V. TYNAN, Personal Representative of
the Estate of John Francis Tynan, IV,
Deceased; RICHARD KUNA,
Defendants-Appellants,
and
BELK STORES SERVICES, INCORPORATED;
BELK HUDSON COMPANY; CARROLL JOYE,
No. 96-1952
Individually and as an employee of
either Belk Store Services, Incorporated,
or any affiliated company, including
Belk-Hudson Company of Orangeburg,
SC; SUE E. MARTIN, Widow and
Administratrix of the Estate of Ronnie
L. Martin, and Next Friend of Justin
Christopher Martin and Jessica Brooke
Martin, Minors; GAS SYSTEMS &
SERVICE, INCORPORATED; E. O. HUDSON,
JR. d/b/a Belk Hudson Company, and/or
Belk Hudson Group Office; A. J.
MATHESON WANNAMAKER, II, Personal
Representative of the Estate of Niles
Lovgren Anderson,
Defendants.
INSURANCE COMPANY OF NORTH AMERICA
(CIGNA); UNITED STATES FIRE INSURANCE
COMPANY,
Plaintiffs-Appellees,
v.
BETTY B. BAUGHMAN, Personal
Representative of the Estate of Edward
Clinton Baughman, Deceased; CHERYL
V. TYNAN, Personal Representative of
the Estate of John Francis Tynan, IV,
Deceased; RICHARD KUNA,
Defendants-Appellants,
and
BELK STORES SERVICES, INCORPORATED;
BELK HUDSON COMPANY; CARROLL JOYE,
No. 96-2021
Individually and as an employee of
either Belk Store Services, Incorporated,
or any affiliated company, including
Belk-Hudson Company of Orangeburg,
SC; SUE E. MARTIN, Widow and
Administratrix of the Estate of Ronnie
L. Martin, and Next Friend of Justin
Christopher Martin and Jessica Brooke
Martin, Minors; GAS SYSTEMS &
SERVICE, INCORPORATED; E. O. HUDSON,
JR. d/b/a Belk Hudson Company, and/or
Belk Hudson Group Office; A. J.
MATHESON WANNAMAKER, II, Personal
Representative of the Estate of Niles
Lovgren Anderson,
Defendants.
2
INSURANCE COMPANY OF NORTH AMERICA
(CIGNA); UNITED STATES FIRE INSURANCE
COMPANY,
Plaintiffs-Appellees,
v.
BELK STORES SERVICES, INCORPORATED;
BELK HUDSON COMPANY; E. O. HUDSON,
JR. d/b/a Belk Hudson Company, and/or
Belk Hudson Group Office,
Defendants-Appellants,
and
BETTY B. BAUGHMAN, Personal
Representative of the Estate of Edward
Clinton Baughman, Deceased; CHERYL
V. TYNAN, Personal Representative of
No. 96-2031
the Estate of John Francis Tynan, IV,
Deceased; RICHARD KUNA; CARROLL
JOYE, Individually and as an employee
of either Belk Store Services,
Incorporated, or any affiliated company,
including Belk-Hudson Company of
Orangeburg, SC; SUE E. MARTIN,
Widow and Administratrix of the Estate
of Ronnie L. Martin, and Next Friend of
Justin Christopher Martin and Jessica
Brooke Martin, Minors; GAS SYSTEMS &
SERVICE, INCORPORATED; A. J. MATHESON
WANNAMAKER, II, Personal
Representative of the Estate of Niles
Lovgren Anderson,
Defendants.
3
Appeals from the United States District Court
for the District of South Carolina, at Orangeburg.
Charles E. Simons, Jr., Senior District Judge.
(CA-93-1767-5-6)
Argued: May 5, 1997
Decided: September 12, 1997
Before MURNAGHAN and HAMILTON, Circuit Judges, and
LEGG, United States District Judge for the
District of Maryland, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Alvin Jeffrey Hammer, GEDNEY M. HOWE, III, P.A.,
Charleston, Couth Carolina, for Appellants. Donald Ross Anderson,
SMITH, HOWARD & AJAX, L.L.P., Atlanta, Georgia, for Appel-
lees. ON BRIEF: Gedney M. Howe, III, GEDNEY M. HOWE, III,
P.A., Charleston, South Carolina; Charles H. Williams, WILLIAMS
& WILLIAMS, Orangeburg, South Carolina, for Appellant Kuna;
Michael P. Horger, HORGER, HORGER & LANIER, Orangeburg,
South Carolina, for Appellants Baughman and Tynan; James W.
Alford, Curtis W. Dowling, BARNES, ALFORD, STORK & JOHN-
SON, L.L.P., Columbia, South Carolina, for Appellants Belk and
Hudson. Kimberley L. Moore, SMITH, HOWARD & AJAX, L.L.P.,
Atlanta, Georgia; David A. Brown, Aiken, South Carolina, for Appel-
lees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
4
OPINION
PER CURIAM:
I.
These consolidated appeals arose from an October 12, 1992 air-
plane crash in East Point, Georgia. The airplane was owned by Gas
Systems & Services, Inc. ("Gas Systems") and was being used for a
business trip by Belk-Hudson Company of Orangeburg, South Caro-
lina, Inc. ("Belk-Hudson"). The pilot of the plane, Nils Anderson, and
three passengers, Edward Baughman, John Tynan, and Ronnie Mar-
tin, died from injuries sustained in the crash. A fourth passenger,
Richard Kuna, survived the crash but suffered personal injuries. The
four passengers, Messrs. Baughman, Tynan, Martin and Kuna, were
all employees of Belk-Hudson. Nils Anderson had been hired by
Belk-Hudson to pilot the plane from Orangeburg, South Carolina to
Atlanta, Georgia for a fee of one hundred dollars.
Personal injury and wrongful death lawsuits were filed in the Court
of Common Pleas, County of Orangeburg, South Carolina by repre-
sentatives of the estates of the deceased and by Richard and Carol
Kuna. Defendants in these state court lawsuits included Matheson
Wannamaker (as representative of the estate of Nils Anderson), Gas
Systems, Belk-Hudson, Belk Store Services, Inc., E.O. Hudson, Jr.,
and Carroll Joye.
The Insurance Company of North America (CIGNA) ("INA") and
the U.S. Fire Insurance Company ("U.S. Fire") subsequently filed a
declaratory action in the United States District Court for the District
of South Carolina, Orangeburg Division. This action sought a declara-
tion of the rights, obligations and liabilities of the state-court litigants
under two aviation insurance polices issued by INA and U.S. Fire to
"Belk Stores and Associates."1 The policies covered the use of "non-
_________________________________________________________________
1 The policy issued by INA provided the primary coverage at issue.
U.S. Fire's policy was a "following form" policy which simply provided
excess coverage on the same terms and conditions as the INA policy.
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owned" airplanes, such as the airplane involved in the October 12,
1992 crash.2
At issue in the declaratory judgment action was the scope of cover-
age provided under the policies' definition of "insured:"
The unqualified word "Insured" wherever used in the policy
includes not only the Named Insured but also includes any
executive officer, director, stockholder, employee or agent
thereof while acting in the scope of his duties as such ....
The insurance with respect to any person other than the
Named Insured does not apply to:
1. Any partner, executive officer, director, stock-
holder, employee or agent with respect to injury or
death of another partner, executive officer, direc-
tor, stockholder, employee or agent of the same
employer injured in the course of his duties or
employment.
(J.A. at 423).3
On March 4, 1996, Mr. Kuna and the estates of Mr. Baughman and
Mr. Tynan filed a Motion for Summary Judgment, contending that the
estate of the pilot, Nils Anderson, was covered under this definition.
INA and U.S. Fire filed a Cross-Motion for Summary Judgment.
After a hearing on the motions, Senior Judge Charles E. Simons,
_________________________________________________________________
2 It was uncontested at oral argument that, in addition to worker's com-
pensation, the victims also have been compensated under an insurance
policy held by the airplane's owner, Gas Systems. Thus, the only com-
pensation at issue on these appeals is whether the victims may recover
under the INA and U.S. Fire policies as well.
3 Also at issue before the district court was a provision which Judge
Simons found excluded coverage of claims against Belk-Hudson, by its
employees, that otherwise were covered by workers' compensation. On
appeal, appellants have not challenged this ruling, conceding at oral
argument that the provision does exclude coverage to Belk-Hudson for
such claims.
6
Jr. issued a written opinion granting INA's and U.S. Fire's Motion for
Summary Judgment and denying the Motion for Summary Judgment
filed by Mr. Kuna and the estates of Messrs. Baughman and Tynan.
Appellants subsequently took these appeals, claiming that Judge
Simons erred in concluding that Nils Anderson was not covered by
the policies.4
II.
We review a grant of summary judgment de novo . Shaw v. Stroud,
13 F.3d 791, 798 (4th Cir. 1994).
In its opinion, the trial court concluded that the policies did not
cover the estate of Mr. Anderson for the claims of the victims, irre-
spective of whether Mr. Anderson was an employee of Belk-Hudson
or an independent contractor. First, Judge Simons found that the poli-
cies' definition of "insured" unambiguously excluded coverage of an
employee of Belk-Hudson for claims raised by his or her co-
employees. Second, Judge Simons found that the definition did not
cover independent contractors.
Appellants contend that Judge Simons erred both in finding that the
language of the contract was unambiguous, and in concluding that the
language of the contract did not conflict with South Carolina law and
public policy. Having carefully reviewed the record and the parties'
submissions, and having heard oral argument, we affirm on the rea-
soning of the district court.
Judge Simons correctly found that the policies' definition of "in-
_________________________________________________________________
4 Appellants also have filed both a Motion to Certify Questions of Law
to the South Carolina Supreme Court and a Renewed Motion to Certify
Issues to the South Carolina Supreme Court. This Court decided to defer
ruling on certification until after oral argument. Having reviewed the
papers and heard oral argument, the Court finds sufficient controlling
precedent in the decisions of the South Carolina Supreme Court to make
such certification unnecessary. See S.C. App. Ct. R. 228(a)("The
Supreme Court in its discretion may answer questions of law certified to
it by any federal court . . . when it appears to the certifying court there
is no controlling precedent in the decisions of the Supreme Court.").
7
sured" is unambiguous and that Mr. Anderson is not covered under
this definition, irrespective of his employment status.5 The policies'
definition unambiguously excludes independent contractors, limiting
coverage to "the Named Insured [and] any executive officer, director,
stockholder, employee or agent thereof . . . ." 6 Even if Mr. Anderson
were an employee of Belk-Hudson, however, he still would not be
covered under the policies because the second sentence of the defini-
tion unambiguously excludes coverage of suits by co-employees.7
Furthermore, this Court agrees with Judge Simons that the policies
are consistent with South Carolina law and public policy. The require-
ments of the South Carolina Aircraft Financial Responsibility Act,
§ 55-8-10 et seq. (S.C. Code Ann. 1992), were satisfied by the liabil-
ity policy held by Gas Systems, the owner of the plane.8 S.C. Ann.
Code § 55-8-40. Similarly, unlike the policy in Isle of Palms Pest
Control Co. v. Monticello Ins. Co., 459 S.E.2d 318 (S.C. App. 1994),
aff'd, 468 S.E.2d 304 (S.C. 1996), the policies at issue here are not
rendered "virtually meaningless" by Judge Simons' interpretation. As
demonstrated in the record, the policies were intended to provide cov-
erage for injuries to guests, people in other aircraft, or people or prop-
_________________________________________________________________
5 In both their papers and at oral argument, appellants placed great
emphasis on the Affidavit of Professor Nan Morrison, Chair of the
Department of English and Communication at the College of Charleston,
Charleston, South Carolina. The Court does not find Prof. Morrison's
affidavit as persuasive in creating an ambiguity.
6 Indeed, appellants conceded in both their briefing and at oral argu-
ment that Mr. Anderson must have been an employee of Belk-Hudson to
qualify as an "insured" under the definition.
7 The second sentence, as quoted above, provides that "[t]he insurance
with respect to any person other than the Named Insured does not apply
to: (1) any employee or agent with respect to injury or death of another
. . . employee or agent of the same employer injured in the course of his
duties of employment."
Appellants essentially conceded this point, in both their briefs and at
oral argument, by arguing that Mr. Anderson should be considered as
both an "employee" (for purposes of the first sentence of the definition)
and as an "independent contractor" (for purposes of the second sentence).
8 As noted above, infra note 2, the victims already have been compen-
sated to the full limits of this policy.
8
erty on the ground injured by the non-owned aircraft-- a purpose
consistent with the trial court's interpretation.
III.
For these reasons, the judgment of the district court is
AFFIRMED.
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