Generali-US Branch v. American Southern Insurance , 280 F. App'x 315 ( 2008 )

ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1215
GENERALI-US BRANCH,
Plaintiff - Appellant,
v.
AMERICAN SOUTHERN INSURANCE COMPANY; CERTAIN UNDERWRITERS AT
LLOYD’S LONDON; NORTHFIELD INSURANCE COMPANY; COLONY INSURANCE
COMPANY,
Defendants - Appellees,
and
COASTAL EXTERIORS, INCORPORATED; AGEE-MCCOY, INCORPORATED,
Defendants.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Matthew J. Perry, Jr., Senior
District Judge. (3:03-cv-04057-MJP)
Submitted: December 10, 2007 Decided: June 6, 2008
Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John R. Murphy, Adam J. Neil, MURPHY GRANTLAND, P.A., Columbia,
South Carolina, for Appellant. Stephen L. Brown, Russell G. Hines,
YOUNG CLEMENT RIVERS, LLP, Charleston, South Carolina; Steven E.
Farrar, Thomas M. Larkin, LEATHERWOOD, WALKER, TODD & MANN, P.C.,
Greenville, South Carolina; Robert M. Darroch, Constance B. Woods,
GOODMAN, MCGUFFEY, LINDSEY & JOHNSON, LLP, Atlanta, Georgia;
Thomas F. Dougall, LAW OFFICE OF THOMAS DOUGALL, Elgin, South
Carolina; Philip E. Reeves, GALLIVAN, WHITE & BOYD, P.A.,
Greenville, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Generali Insurance Company appeals from the district
court’s order granting partial summary judgment to Defendants. The
district court concluded that the Defendant insurance companies
were not responsible for reimbursing Generali for its defense of
Agee-McCoy, Inc., in the various suits brought against Agee-McCoy.
The district court concluded that Agee-McCoy was never an
insured under any of the Defendants’ insurance policies and that
the Defendants therefore had no duty to defend with regard to the
claims asserted against Agee-McCoy. See Shelby Mut. Ins. Co. v.
Askins, 413 S.E.2d 855, 859 (S.C. Ct. App. 1992) (“Fundamental to
the concept of duty to defend is the requirement that the party
seeking the defense must be an insured under a contract of
insurance.”).
Generali in its opening brief does not contend that the
district court erred in concluding that Agee-McCoy was not an
insured under the Defendants’ policies, nor does it argue that
South Carolina law imposes a duty to defend claims asserted against
a party who is not an insured. Instead, Generali asserts that the
policies at issue obligate the Defendants to pay all sums that
their insured (Coastal Exteriors, Inc.) becomes obligated to pay as
damages and that, under various theories of successor liability,
Coastal Exteriors will be liable for any judgments against Agee-
McCoy. The Defendants’ policies, however, do not require the
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Defendants to pay all sums that Coastal Exteriors becomes obligated
to pay as damages, but to pay those sums Coastal Exteriors becomes
legally obligated to pay as damages because of bodily injury or
property damage to which the insurance applies. Because Generali
presents no argument in its opening brief as to how the insurance
policies apply to claims made against a party who is not an insured
under the policies, we affirm the district court’s grant of partial
summary judgment in favor of the Defendants. See Fed. R. App. P.
28(a)(9)(A) (requiring argument section of brief to contain
“appellant’s contentions and the reasons for them, with citations
to the authorities and parts of the record on which the appellant
relies”); Williams v. Giant Food, Inc., 370 F.3d 423, 430 n.4 (4th
Cir. 2004) (deeming abandoned issues not supported by argument in
appellate brief).*
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
*
We decline to consider the arguments made for the first time
in Generali’s reply brief. See Cavallo v. Star Enter., 100 F.3d
1150, 1152 n.2 (4th Cir. 1996) (refusing to consider an issue first
raised in appellant’s reply brief, explaining that to consider the
issue “would be unfair to the appellee and would risk an
improvident or ill-advised opinion on the legal issues raised”
(internal quotation marks omitted)).
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