Federal Insurance v. Ward , 166 F. App'x 24 ( 2006 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 04-2004
    FEDERAL INSURANCE COMPANY, a/s/o Transworld
    Connection, Limited,
    Plaintiff - Appellant,
    versus
    THERESA ANN WARD; PAT BONDURANT,
    Defendants - Appellees.
    Appeal from the United States District Court for the Western
    District of Virginia, at Lynchburg.  Norman K. Moon, District
    Judge. (CA-03-102)
    Argued:   October 26, 2005                 Decided:   January 24, 2006
    Before LUTTIG, MICHAEL, and GREGORY, Circuit Judges.
    Reversed and remanded by unpublished opinion. Judge Gregory wrote
    the opinion, in which Judge Luttig and Judge Michael joined.
    ARGUED: Daniel    J.   Luccaro,  COZEN   O’CONNOR,  Philadelphia,
    Pennsylvania, for Appellant. Henry Moseley Sackett, III, EDMUNDS
    & WILLIAMS, P.C., Lynchburg, Virginia; John Tandy Cook, CASKIE &
    FROST, Lynchburg, Virginia, for Appellees. ON BRIEF: Robert M.
    Caplan, COZEN O’CONNOR, Philadelphia, Pennsylvania; Elisabeth
    Ayyildiz, MORIN & BARKLEY, L.L.P., Charlottesville, Virginia, for
    Appellant.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    GREGORY, Circuit Judge:
    Federal    Insurance    Company     (“Federal”)    as   subrogee   of
    Transworld Connection, Ltd. (“Transworld”), appeals the district
    court’s grant of summary judgment in favor of Theresa Ann Ward and
    Pat Bondurant (collectively “the Employees”), former employees of
    Transworld.    The resolution of this dispute turns on whether the
    district court properly considered the Employees to be insured
    under a policy issued to Transworld by Federal (“the Policy”) and
    thus immune from suit under Virginia’s anti-subrogation rule.1          On
    appeal,   Federal   argues    that     the   district   court   erred   in
    interpreting the Policy under Virginia’s “course of employment”
    test and in awarding summary judgment to the Employees on that
    basis.    Federal further contends that had the court applied the
    correct tests of coverage, the award of summary judgment in favor
    of the Employees would not have been appropriate. Because we agree
    that the district court applied the wrong test and that the
    Employees’ alleged act of negligence is not covered by the Policy,
    we reverse the grant of summary judgment in favor of the Employees,
    1
    Virginia’s anti-subrogation rule provides that an insurance
    company may not seek indemnification from its insured. Walker v.
    Vanderpool, 
    302 S.E.2d 669
    , 672 (Va. 1983) (“where the plaintiff
    has contracted to protect the defendant from a loss by procuring
    insurance, the plaintiff (or his subrogee) may not recover for that
    loss from the defendant even if the loss is caused by the
    defendant’s negligence.”); see also Sherwood Trucking, Inc. v.
    Carolina Cas. Ins. Co., 
    553 F.2d 568
    , 572 (4th Cir. 1977).
    2
    hold that they are not immune from suit, and remand for further
    consideration.
    I.
    On September 9, 2003, Transworld’s facility located at 260
    Fastener Drive in Lynchburg, Virginia, caught fire.   J.A. 129.   At
    the time, Transworld had property and liability coverage through
    the Policy issued by Federal. 
    Id.
     The Policy insured Transworld’s
    employees when performing two classes of covered acts:        “acts
    within the scope of their employment by [Transworld]” or “duties
    related to the conduct of [Transworld’s] business.”    Id. at 502.
    Under the Policy, for which Transworld paid $14,269 annually, id.
    at 337, Federal reimbursed Transworld for $352,832.34 and $240,000
    in property and personal property losses, respectively.     Id. at
    129.     Because the Policy, in limited instances, also covered
    Transworld’s employees’ personal property, a portion of Federal’s
    payments to Transworld was for damage to the personal effects of
    Transworld’s employees.    Id. at 352, 335-37.   Ward, for example,
    received $230 as compensation for her personal property losses.
    Id. at 33, 333.
    Federal maintains that the fire resulted from the Employees’
    negligent disposal of smoking materials.     At approximately 6:00
    p.m. on the evening of the fire, after everyone except for the
    Employees and two waiting children had left the building, Ward shut
    3
    down her computer and lit a cigarette as she prepared to leave
    work.2   Id. at 200, 570-74.   After Bondurant completed her work and
    shut down her computer, she entered Ward’s office, observed Ward
    smoking, and lit her own cigarette.      Id. at 192-93, 204, 570-74.
    Just before leaving Ward’s office, Ward and Bondurant flicked ashes
    from the ends of their cigarettes into a trash can filled with
    paper.   Id. at 193, 206-10, 574.      Bondurant claims that she then
    peered into the trash can and observed that nothing was smoldering
    or smoking before allowing Ward to place the trash can back under
    the desk.   Id. at 193.   Thereafter, Ward and Bondurant left Ward’s
    office, Ward set the burglar alarm, and she, Bondurant, and the
    children exited the building.     Id. at 196-97, 570-74.
    Transworld did not have any written rules regarding smoking
    prior to the fire, but there was an informal policy that employees
    were not to smoke in the building during business hours as a
    courtesy to non-smokers.       J.A. 223-24, 229.   The president and
    owner of Transworld, Joe Tubbs, was aware that employees smoked
    inside the facility after hours, and allowed the practice so long
    as no one objected.   Id. at 226-27.
    Tubbs has made contradictory statements as to whether the
    Employees were acting for the benefit of the company while smoking
    2
    Ward testified that she could not remember the exact order of
    her activities, i.e., whether she shut down the computer before or
    after lighting her cigarette.    J.A. 203.   The precise order of
    Ward’s activities, however, is immaterial to our discussion.
    4
    on the night of the fire.        He testified that he considered Ward to
    be “on company time,” “doing her job” until she left the building
    because she was expected to set the building alarm.           J.A. 321-22.
    In a letter mailed to Federal upon learning that Federal was
    pursuing legal action against the Employees, Tubbs stated that both
    Ward   and   Bondurant    were    acting   within   “the   scope    of   their
    employment” on the night of the fire as they were “working overtime
    on company business.”       Id. at 334.      At the same time, however,
    Tubbs acknowledged that the Employees did not need to smoke to
    perform their job-related duties, id. at 228, and that smoking was
    not listed in their job descriptions, id. at 229.                  During his
    deposition, he also admitted that on the night of the fire, he left
    the building before the Employees and could not state from personal
    knowledge “whether or not Ms. Ward and Ms. Bondurant were finished
    working before they began smoking . . . .”          Id. at 252-53.
    On December 9, 2003, Federal filed suit against the Employees,
    seeking indemnification for the costs of the fire damage.             J.A. 7-
    11.    The Employees responded by filing individual motions for
    summary judgment based on their assertion that they were insured
    under the Policy and hence immune from suit under Virginia’s anti-
    subrogation rule.        Id. at 12-13, 34-35.        After reviewing the
    parties’ briefs and hearing oral argument, the district court
    entered summary judgment in the Employees’ favor.           Id. at 135.
    5
    The district court held that Virginia’s anti-subrogation rule
    barred Federal from bringing suit against the Employees. J.A. 134.
    According to the court, the Employees were covered under the
    liability section of the Policy, which provided that “employees .
    . . are insured, but only [1] for acts within the scope of their
    employment by [Transworld] or [2] while performing duties related
    to the conduct of [Transworld’s] business.”               Id. at 502.       The
    district court found that the Policy’s phrase “while performing
    duties related to the conduct of [Transworld’s] business” was
    synonymous with the definition of “course of employment.”              Id. at
    133.       Accordingly, the court referenced Virginia’s definition of
    “course of employment,” as elucidated in the workers’ compensation
    context,3 in determining whether the Employees were insured under
    the Policy.       Id.    The district court concluded that the Employees
    were acting within the “course of their employment” at the time
    they       discarded    their   ashes,   and   accordingly,   held   that   the
    Employees were insured under the Policy, immune from suit under
    Virginia’s anti-subrogation rule, and thus entitled to summary
    judgment.       Id. at 133-34.
    Federal timely appealed.          Id. at 136-37.
    3
    Under Virginia law, an act is within the “course of
    employment,” where it occurs during the period of employment, at a
    place where the employee is reasonably expected to be, and while
    the employee is reasonably fulfilling the duties of his employment
    or an act reasonably incidental thereto, such as going to and from
    work. J.A. 132-33 (citing Conner v. Bragg, 
    123 S.E.2d 393
    , 396
    (Va. 1962); Brown v. Reed, 
    165 S.E.2d 394
    , 397 (Va. 1969)).
    6
    II.
    We review the district court’s grant of summary judgment de
    novo, viewing all factual inferences in the light most favorable to
    the nonmovant. Cont’l Airlines, Inc. v. United Airlines, Inc., 
    277 F.3d 499
    ,    508     (4th    Cir.    2002).        Summary    judgment    is    only
    appropriate         where   “the      pleadings,      depositions,    answers      to
    interrogatories,        and    admissions       on   file,     together    with   the
    affidavits, if any, show that there is no genuine issue as to any
    material fact and that the moving party is entitled to a judgment
    as a matter of law.”          Fed. R. Civ. P. 56(c).         Once the party moving
    for summary judgment has shown that there are no genuine issues of
    material fact, the nonmoving party has a burden to “set forth
    specific facts showing that there is a genuine issue for trial.”
    Fed. R. Civ. P. 56(e).          If a nonmoving party, in opposing summary
    judgment, does not provide evidence on which a jury can rely to
    rule    in    the     nonmoving    party’s      favor,    summary    judgment      is
    appropriate.        Barwick v. Celotex Corp., 
    736 F.2d 946
    , 958-59 (4th
    Cir. 1984).
    This case involves a question of contract interpretation,
    which is also subject to de novo review.               Seabulk Offshore Ltd. v.
    Am. Home Assurance Co., 
    377 F.3d 408
    , 418 (4th Cir. 2004).                    We are
    not constrained by the district court’s interpretation of the
    Policy, because “[t]he interpretation of a written contract is a
    question of law that turns upon a reading of the document itself,
    7
    and a district court is in no better position than an appellate
    court to decide such an issue.”      
    Id.
    Where, as here, our subject-matter jurisdiction is premised on
    diversity of citizenship, we must apply the substantive law of the
    forum state.    See Hitachi Credit America Corp. v. Signet Bank, 
    166 F.3d 614
    , 623-624 (4th Cir. 1999).         Under the law of the forum
    state, here Virginia, “the law of the place where an insurance
    contract was written and delivered governs questions of insurance
    coverage.”     See Buchanan v. Doe, 
    431 S.E.2d 289
    , 291 (Va. 1993)
    (citing Lackey v. Virginia Sur. Co., 
    167 S.E.2d 131
    , 133 (Va.
    1969)).    Because the insurance contract at issue was delivered in
    Virginia, see J.A. 454, the parties correctly agree that their
    dispute should be resolved in accordance with Virginia law.         With
    these principles in mind, we proceed to determine whether the
    Employees were insured under the Policy and thus immune from suit.
    III.
    A.
    Federal argues that the district court erred in applying the
    concept of “course of employment,” as elucidated in the workers’
    compensation context, to the facts of this case.         In particular,
    Federal asserts that the court erred at the outset in equating the
    phrase    “while   performing   duties   related   to   the   conduct   of
    [Transworld’s] business,” with the phrase “course of employment.”
    8
    We agree.    In reading the contract as a whole, as we must, see
    Transit Casualty Co. v. Hartman’s, Inc., 
    239 S.E.2d 894
    , 896 (Va.
    1978), it is apparent that “course of employment” and “while
    performing    duties   related   to   the   conduct   of   [Transworld’s]
    business” are not synonymous.
    The Policy expressly distinguishes these two phrases.            In
    setting forth exclusions from coverage, the Policy provides that no
    employee is insured for bodily injuries occurring “while in the
    course of his or her employment or while performing duties related
    to the conduct of [Transworld’s] business.”           J.A. 502 (emphasis
    added).    As the two phrases are set off by the word “or,” we are
    persuaded that they are intended to express distinct concepts.
    Moreover, the Policy’s incorporation of the phrase “course of
    employment” indicates that the Policy’s drafters employed that term
    where they sought to invoke that concept.             Consequently, the
    suggestion that they would employ a wordier phrase to express the
    “course of employment” concept elsewhere in the Policy defies
    logic.    Accordingly, the district court erred in equating “course
    of employment” with “while performing duties related to the conduct
    of [Transworld’s] business,” and in applying the definition of
    “course of employment” elucidated in the workers’ compensation
    context to the facts of this case.
    9
    B.
    We thus examine whether the court’s grant of summary judgment
    was appropriate when the correct tests of coverage are considered.
    Because we find, as explained below, that the Employees’ alleged
    act of negligence does not fall under either of the two classes of
    acts covered in the Policy, we hold that they were not insured
    under the liability section of the Policy.
    1.
    We begin by examining whether the act of flicking ashes into
    a wastebasket qualifies as an “act[] within the scope of [the
    Employees’] employment by [Transworld].”     J.A. 502.   Because we
    conclude that such an act is necessarily outside the scope of the
    Employees’ employment, we are compelled to hold that they were not
    performing an act covered under this test when they flicked ashes
    into a paper-filled trash can.4
    Under the “scope of employment” test set forth in Virginia, we
    think it plain that the act of flicking ashes into a wastebasket
    4
    Federal argues that smoking is necessarily for an employee’s
    “external, independent, and personal motive,” and thus outside the
    scope of employment. Appellant’s Br. at 18. Because the inquiry
    relevant here is not whether smoking is within the scope of the
    Employees’ employment, but rather whether flicking ashes into a
    paper-filled can is within the scope of employment, we refrain from
    deciding whether smoking itself would meet this standard. Thus, we
    decline to opine as to whether smoking is necessarily outside the
    scope of an employee’s employment in Virginia, an issue that
    Virginia has yet to decide.     Likewise, we do not consider what
    other states have said regarding whether smoking is within the
    scope of employment.
    10
    cannot be said to be within the scope of the Employees’ employment.
    According to the Virginia Supreme Court, an act is within the scope
    of employment if:
    (1) it was expressly or impliedly directed by the
    employer, or is naturally incident to the business, and
    (2) it was performed, although mistakenly or ill-
    advisedly, with the intent to further the employer’s
    interest, or from some impulse or emotion that was the
    natural consequence of an attempt to do the employer’s
    business, “and did not arise wholly from some external,
    independent, and personal motive on the part of the
    [employee] to do the act upon his account.”
    Kensington       Assocs.     v.   West,   
    362 S.E.2d 900
    ,   901   (Va.   1987)
    (citations omitted). In discarding the ashes as they did, Ward and
    Bondurant both engaged in an act independent of any other job-
    related function that may have preceded, superceded, or even
    occurred simultaneously with the act of disposing of the ashes.
    That distinct act, which must be the focus of our inquiry, was not
    within the scope of employment.                   Although Transworld permitted
    smoking     in   its   buildings,     the        negligent   disposal     of   smoking
    materials was not directed by Transworld or naturally incident to
    Transworld’s manufacturing business.                 In fact, at the exterior of
    its    premises,       Transworld     provided       its     employees    with   urns
    specifically designed for the disposal of smoking materials.                      J.A.
    224-25.     Nor was the Employees’ act of flicking ashes into a trash
    can performed with the intent to further the employer’s interest or
    from   an   impulse     to    carry   out    the     employer’s     business.     The
    negligent conduct did not promote any business-related interest.
    11
    Rather, it compromised the employer’s interest in maintaining a
    safe working environment.           The Employees’ conduct “ar[o]se wholly
    from some external, independent, and personal motive . . . .”
    Kensington Assocs., 362 S.E.2d at 901.                We are thus compelled to
    conclude as a matter of law that the Employees were not engaged in
    an act in the scope of their employment when they flicked ashes
    into    a   paper-filled        trash   can    on   the     night    of    the    fire.
    Accordingly,       they   were    not   insured     under    the    first       test   of
    coverage.
    2.
    We now turn to the second test of coverage under the liability
    section of the Policy, i.e., whether the Employees were “performing
    duties related to the conduct of [Transworld’s] business” when they
    discarded their ashes.           J.A. 502.
    Under the plain language of the contract, the question before
    us is simply whether in discarding ashes into a paper-filled
    container, the Employees were “performing duties related to the
    conduct of [Transworld’s] business.”                J.A. 502.       On the night of
    the fire, Ward and Bondurant admittedly performed some duties
    related to the conduct of Transworld’s business of manufacturing
    custom cable molded assemblies.               Id. at 214.     For instance, that
    evening,    Ward,    a    purchasing     manager,     carried       out    her   normal
    purchasing    duties      and    set    the   burglar     alarm.          Id.    at    31.
    Bondurant,     a     quality       control      manager      and     inside       sales
    12
    representative, was also engaged in a job-related duty, namely the
    completion of a report for a client.   Id. at 326.   However, neither
    Ward, nor Bondurant can properly characterize the act of concern--
    discarding ashes in a wastebasket containing paper--as done in the
    performance of a work-related duty.      Indeed, because the act of
    smoking was not within the Employees’ job description or needed to
    perform a job-related duty, see J.A. 228-29, the subsidiary act of
    flicking ashes also cannot be characterized as the exercise of a
    duty.     Thus, the even more circumscribed act of disposing ashes
    into a paper-filled wastebasket is certainly not the performance of
    a duty.     Accordingly, we conclude that by this test, Ward and
    Bondurant were not performing a covered act when they discarded
    ashes into the wastebasket.
    We would reach the same conclusion even if we read the phrase
    “while performing duties related to the conduct of [Transworld’s]
    business” to suggest that any act an employee can accomplish as she
    performs job-related duties is necessarily covered.     We think this
    is a strained reading of the contract given the illogical results
    it would engender. Under this temporal interpretation, a virtually
    limitless number of activities would be covered merely because they
    coincide with a job-related duty.     By this rule, neither Federal,
    nor Transworld could ever anticipate the breadth of acts subject to
    coverage.    Nonetheless, even under this strained interpretation,
    the Employees are still not insured, because they do not insinuate
    13
    that they were engaged in any simultaneous job-related duty at the
    precise moment when they flicked ashes in the trash can.            All
    alleged job-related activities took place either before or after
    they flicked ashes into the can.
    In sum, we hold as a matter of law that under the language of
    the liability section of the Policy, the Employees were not insured
    when they flicked ashes into a trash can containing paper.         That
    act was neither within the scope of their employment, nor in
    performance of a job-related duty.5
    C.
    At this time, we consider the Employees’ alternative arguments
    in   favor   of   affirmance.6   Because   we   find   these   arguments
    5
    We may conclude as a matter of law that the Employees are not
    insured under the two tests set forth in the liability section of
    the Policy, because there are no genuine issues of material fact
    left for resolution by the district court. Indeed, in moving for
    summary judgment, the Employees conceded that there are no facts in
    dispute, and that we may resolve the question of whether they are
    insured under the Policy on the record as it existed before the
    district court. J.A. 16, 40.
    6
    Federal argues that this Court should not entertain the
    Employees’ remaining arguments because they were not raised by
    Federal on appeal or addressed by the district court. According to
    Federal, to preserve their arguments, the Employees should have
    cross appealed under Federal Rule of Appellate Procedure 28(h).
    Federal, however, misunderstands this Court’s ability to review
    arguments not addressed by a district court or briefed by an
    appellant.    Although a court of appeals may not consider an
    argument not raised by an appellant as grounds for reversal, it may
    consider any evidence in the record as grounds for affirmance.
    See, e.g., El Paso Natural Gas Co. v. Neztsosie, 
    526 U.S. 473
    , 479
    (1999) (“Absent a cross-appeal, an appellee may ‘urge in support of
    14
    unavailing, we reverse the district court’s grant of summary
    judgment and hold that the Employees are not insured under the
    insurance policy.
    1.
    The Employees argue that they are insured under the Policy
    because their personal property on Transworld’s premises is covered
    under particular circumstances.        We are not persuaded, however,
    because the Employees’ argument is contrary to the plain language
    of the Policy and not supported by authority in Virginia.
    The personal property section of the Policy provides that
    “[Federal] will pay for direct physical loss or damage to personal
    property of employees caused by or resulting from a peril not
    otherwise   excluded.”   J.A.   352.      Indeed,   Federal   indirectly
    compensated Ward for personal property losses totaling $230 by
    paying that amount to Transworld, who in turn made payment to Ward.
    The Employees derive their argument, in large part, from the
    Louisiana Court of Appeals’ decision in State Farm Fire & Casualty
    a decree any matter appearing in the record, although his argument
    may involve an attack upon the reasoning of the lower court,’ but
    may not ‘attack the decree with a view either to enlarging his own
    rights thereunder or of lessening the rights of his adversary.’”)
    (quoting United States v. Am. Ry. Express Co., 
    265 U.S. 425
    , 435
    (1924)); accord Oklahoma v. United States Civil Serv. Com., 
    330 U.S. 127
    , 135 n.3 (1947); Le Tulle v. Scofield, 
    308 U.S. 415
    , 421-
    22 (1940); Langnes v. Green, 
    282 U.S. 531
    , 538-539 (1931); Landram
    v. Jordan, 
    203 U.S. 56
    , 62 (1906); United States v. Blackfeather,
    
    155 U.S. 180
    , 186 (1894); Mount Pleasant v. Beckwith, 
    100 U.S. 514
    ,
    527 (1880); The Stephen Morgan, 
    94 U.S. 599
    , 599 (1877); JH v.
    Henrico County Sch. Bd., 
    326 F.3d 560
     (4th Cir. 2003); Rhodes v.
    Comm’r, 
    111 F.2d 53
    , 56 (4th Cir. 1940).
    15
    Co. v Sentry Indemnity Co., 
    316 So. 2d 185
     (La. Ct. App. 1975).7
    The Employees’s argument, however misses the point, because as a
    federal court sitting in diversity, we are obliged to discern and
    apply the law of Virginia, not Louisiana.                See Erie R.R. Co. v.
    Tompkins, 
    304 U.S. 64
    , 78 (1938); see also United States v. Little,
    
    52 F.3d 495
    , 498 (4th Cir. 1995).           Yet, the Employees fail to cite
    any Virginia case stating categorically that if an employee’s
    possessions are covered under certain provisions of a policy, they
    are rendered an insured under the entirety of that policy.
    The Employees ask this Court to apply a strained reading of
    the   Policy,   which   we    may   not    do.    Pilot    Life   Ins.    Co.   v.
    Crosswhite, 
    145 S.E.2d 143
    , 146 (Va. 1965) (“It is the function of
    the court to construe the language of the contract as written, and
    the court cannot make a new contract for the parties different from
    that plainly intended and thus create a liability not assumed by
    the   insurer.”).       The   Policy      lists   only    one   named    insured,
    Transworld.     See, e.g., J.A. 337, 464.         Premiums were paid by that
    7
    In State Farm Fire & Casualty Co., the Louisiana Court of
    Appeals held that under Louisiana’s anti-subrogation rule, an
    insurance company could not seek indemnification from a pastor (an
    employee of the covered church) because although the pastor was not
    a named insured, the insurance policy extended coverage to
    “[p]ersonal property [or] personal effects while located on the
    described premises, belonging to the insured, officers, partners or
    employees thereof.” 
    316 So. 2d at 188
    . The court affirmed summary
    judgment in the pastor’s favor, holding that the fact that the
    pastor’s possessions were covered under the policy, rendered him a
    co-insured, and thus immunized him from a subrogation action by the
    insurance company. 
    Id. at 188-89
    .
    16
    named insured, and Federal issued payments to that named insured.
    The plain language of the provision imparting protection to the
    personal property of employees specifically distinguishes employees
    from the insured.       See J.A. 347, 352 (using the terms “you” and
    “your” to refer to the named insured and “employees” to refer to a
    separate,    uninsured    class).       Also,    nothing    in   the    record
    establishes that the parties in entering the insurance contract
    intended to convey upon all employees the status of additional or
    co-insureds.      The Employees do not indicate that they were the
    intended beneficiaries of the contract.          See Walker v. Vanderpool,
    
    302 S.E.2d 669
     (Va. 1983) (In interpreting contracts, courts should
    enforce the intention of the parties).                When asked whether he
    considered employees to be insured under the company’s policy,
    Tubbs did not so indicate.       See J.A. 315.
    Moreover, the fact that Transworld’s employees’ possessions
    were only protected if under the “care, custody, and control” of
    Transworld   suggests    that   Transworld      sought   insurance     for   the
    personal effects of employees only to protect itself from liability
    to its employees.       J.A. 443 (emphasis added) (defining personal
    property of employees as “personal property owned or leased by your
    employee    and   in   your   care,   custody    or    control”).      Because
    Transworld effectively “assumed responsibility” for the personal
    property of employees that remained on the Transworld premises,
    Transworld had an independent interest in protecting that property.
    17
    We find further support for our conclusion in Virginia Heart
    Institute, Ltd. v. Northside Electric Co., No A-908, 
    1982 WL 215281
    (Va. Cir. Ct. Oct. 29, 1982) (unpublished), a Virginia Circuit
    Court opinion, which specifically rejects the categorical approach
    that the Employees advocate.8   In that case, the court addressed
    whether a provision in an insurance policy that extended some
    coverage to a subcontractor hired to make improvements on an
    existing building rendered that subcontractor a coinsured under the
    entire policy.    Va. Heart Inst., 
    1982 WL 215281
    , *10-15.       A
    building owner brought suit against a subcontractor when a fire,
    worsened by the subcontractor’s negligence, destroyed his building.
    Id. at *1.   The relevant portion of the insurance policy provided
    that “the Owner shall purchase and maintain property insurance upon
    the entire Work at the site to the full insurable value thereof.
    8
    Although unpublished state cases are not binding on this
    Circuit, they can be instructive in resolving a question of state
    law. C.F. Trust, Inc. v. First Flight Ltd. P’ship, 
    306 F.3d 126
    ,
    136 (4th Cir. 2002) (finding that no authority prevents a federal
    court from relying upon an unpublished state decision to assist in
    resolving a question of state law); see also King v. Order of
    United Commercial Travelers, 
    333 U.S. 153
    , 160-61 (1948) (holding
    that unpublished decisions are not binding, but noting that a court
    “properly attributed some weight” to an unpublished decision).
    Likewise, we may follow the authority of a trial court unless we
    are persuaded that the state supreme court would reach a different
    conclusion under the same circumstances. See, e.g., Cain v. Sec.
    of Health, Educ. & Welfare, 
    377 F.2d 55
    , 58 (4th Cir. 1967)
    (“Where, as here, the Supreme Court has not had occasion to declare
    the law, the Secretary may follow the opinion of a nisi prius
    court; but if he believes its decision to be in conflict with what
    the Supreme Court ‘would find’ were the point presented to it, he
    may disregard that lower court’s decision.”).
    18
    This    insurance       shall    include     the    interest    of    the    Owner,       the
    Contractor, Subcontractors, and Sub-subcontractors . . . .” Id. at
    *3.    Under the contract, “Work” was defined to include “all labor
    necessary to produce the construction required by the Contract
    Documents, and all materials and equipment incorporated in such
    construction.”            Id.    at    *12.         The   court      found     that       the
    subcontractor’s insurable interest in the property only extended to
    the    improvements       made    by   the    subcontractor          and    not    to     the
    preexisting structure. Id. Thus, the court concluded that even if
    the subcontractor was an insured party, its interest was limited to
    its insurable interest and hence “it [was] liable for damages
    beyond the amount of its insured interest.”                    Id.
    In sum, we find that the Employees were not insured, because
    the Policy identifies Transworld as the only insured, extends
    protection to Transworld’s employees’ personal property only in an
    effort to protect Transworld, the Employees have cited no authority
    in    Virginia    for    the    categorical        approach    they    would       have    us
    embrace, and because we are persuaded by the reasoning of Virginia
    Heart Institute.          We thus conclude that even if the Employees do
    have an insurable interest in the Policy, that interest, by the
    terms of the Policy, extends only to their personal property, which
    plainly    does     not    include      Transworld’s       building.           J.A.       443
    (buildings are excluded from the definition of “personal property
    of    employees”).        Accordingly,        any    limited      coverage        that    was
    19
    afforded to the Employees does not serve to shield them from suit
    for destruction of the entire Transworld building.9
    2.
    Finally, the Employees argue that they are insured because a
    corporation can only act through its employees.           Hence, according
    to    the   Employees,   to   cover   the   corporation   but   exclude     all
    employees from coverage would in effect not cover the corporation.
    The    Employees   effectively    suggest    that   whenever    an   employer
    purchases insurance, all acts of the employees are necessarily
    covered.     However, the policy at issue here, specifically limits
    coverage to employees when they are engaged in acts within the
    scope of employment or are “performing duties related to the
    conduct     of   [Transworld’s]   business.”        Because   the    rule   the
    Employees advocate would require us to ignore the plain language of
    the Policy, and would do injury to the ability of parties to
    control the manner in which they contract for insurance, we find
    their argument to be without merit.           See Quesenberry v. Nichols,
    
    159 S.E.2d 636
    , 640 (Va. 1968) (courts ought not apply a “strained
    or unjustified construction of [an insurance] policy . . ., which
    9
    For the same reasons, we are not persuaded by the Employees’
    contention that Federal has waived its ability to claim that Ward
    is not an insured by virtue of its payment to Ward on account of
    Ward’s property damage.     The Employees maintain this argument
    applies with equal force to Bondurant because Federal concedes that
    had Bondurant also lost personal property during the fire, she too
    would have been compensated under the Policy.      J.A. 155.    The
    Employees’ argument fails because, as stated above, the fact that
    their personal property was protected does not render them insured.
    20
    disregards the plain meaning and intent of the parties . . . .”
    (internal quotation marks and citations omitted)).
    IV.
    For the reasons stated above, we reverse the district court’s
    grant of summary judgment, hold that the Employees were not insured
    under the Policy and thus not immune from suit, and remand for
    further proceedings consistent with this opinion.
    REVERSED AND REMANDED
    21
    

Document Info

Docket Number: 04-2004

Citation Numbers: 166 F. App'x 24

Judges: Luttig, Michael, Gregory

Filed Date: 1/24/2006

Precedential Status: Non-Precedential

Modified Date: 11/5/2024

Authorities (18)

The " Stephen Morgan." , 24 L. Ed. 266 ( 1877 )

King v. Order of United Commercial Travelers of America , 68 S. Ct. 488 ( 1948 )

Langnes v. Green , 51 S. Ct. 243 ( 1931 )

Jh, a Minor, by and Through His Parents and Next Friends, ... , 326 F.3d 560 ( 2003 )

Erie Railroad v. Tompkins , 58 S. Ct. 817 ( 1938 )

El Paso Natural Gas Co. v. Neztsosie , 119 S. Ct. 1430 ( 1999 )

United States v. Blackfeather , 15 S. Ct. 64 ( 1894 )

Landram v. Jordan , 27 S. Ct. 17 ( 1906 )

Mount Pleasant v. Beckwith , 25 L. Ed. 699 ( 1880 )

Edna U. Cain v. Secretary of Health, Education and Welfare , 377 F.2d 55 ( 1967 )

Arnold G. Barwick v. The Celotex Corporation, Keene ... , 736 F.2d 946 ( 1984 )

continental-airlines-inc-continental-express-incorporated-v-united , 277 F.3d 499 ( 2002 )

State Farm Fire & Casualty Co. v. Sentry Indem. Co. , 1975 La. App. LEXIS 4090 ( 1975 )

LeTulle v. Scofield , 60 S. Ct. 313 ( 1940 )

hitachi-credit-america-corporation-v-signet-bank-formerly-known-as-signet , 166 F.3d 614 ( 1999 )

United States & Interstate Commerce Commission v. American ... , 44 S. Ct. 560 ( 1924 )

United States v. Ancel Little Clara Little Betty Ann Lappo , 52 F.3d 495 ( 1995 )

seabulk-offshore-limited-v-american-home-assurance-company-and-dyn , 377 F.3d 408 ( 2004 )

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