Harper, Charlene v. Vigilant Insur Co ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1087
CHARLENE HARPER,
Plaintiff-Appellant,
v.
VIGILANT INSURANCE COMPANY,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 01-cv-0554-MJR—Michael J. Reagan, Judge.
____________
ARGUED SEPTEMBER 15, 2004—DECIDED DECEMBER 6, 2005
____________
Before BAUER, COFFEY and KANNE, Circuit Judges.
COFFEY, Circuit Judge. Plaintiff-appellant, Charlene
Harper, acting in the capacity of administrator of Jane
Doe’s (“Jane”) estate, appeals an order of the district
court granting summary judgment in favor of the
defendant-appellee Vigilant Insurance Company (“Vigi-
lant”). The district court found that Jane, as an assignee of
John Doe’s (“John”) rights to sue Vigilant for bad faith
failure to defend and indemnify, could not prevail because
John was not a “resident” of his father’s “household” under
the terms of his father’s homeowner’s insurance policy. The
trial court also concluded, in the alternative, that even if
John was an insured under the policy, Harper had failed to
2 No. 04-1087
establish that Jane’s injury occurred during the effective
insurance policy coverage period. We affirm.
I. BACKGROUND
John and Jane met in St. Louis, Missouri, in the spring or
summer of 1987. Not long after meeting they began dating,
and became sexually active somewhere in September or
October of that year. While dating Jane, John lived with his
mother at 5525 Wilson Avenue in St. Louis, Missouri, but
occasionally visited his estranged father’s lake house in
Lake of the Ozarks, Missouri. He and Jane stayed at his
father’s lake house “maybe six times . . . a year” and he
went there “pretty consistently” without Jane.1
Prior to, and throughout his relationship with Jane, John
engaged in high-risk sexual behavior. Among other things,
John admitted to having sexual encounters with numerous
men as well as other women while contemporaneously
having relations with Jane. In 1990, John’s treating
physician advised him to get tested for HIV, as the doctor
suspected he was suffering from AIDS. However, through-
out the period of time that he was dating Jane, John failed
to seek or obtain a HIV test. In addition, John neglected to
inform Jane of either his sexual behavior or his doctor’s
suspicion that he was suffering from AIDS. In 1991 John
and Jane broke up, and in January of 1992, John tested
positive for HIV. Just a few months later, in April of 1992,
1
Other than John’s statement that he went to the lake house
“pretty consistently” throughout his life without Jane, the rec-
ord is barren of any evidence which would allow us to ascertain
how frequently John visited his father’s lake home without Jane.
We are also unable to determine from the record how long
John stayed at the lake house when he visited either in the
company of Jane or without her.
No. 04-1087 3
Jane discovered that she too was infected with the HIV
virus.
In March of 1994, Jane filed suit against John in St. Clair
County, Illinois, (“the St. Clair lawsuit”) seeking recovery
for bodily injury, pain and suffering, emotional distress, loss
of income and medical expense based on John’s alleged
negligence, battery and intentional infliction of emotional
distress in infecting her with the HIV virus. Specifically,
Jane alleged inter alia that: (1) John “transmitted HIV [to
her] when he knew or should have known he was infected
with the communicable disease”; and (2) John had “failed to
take adequate precautions to prevent himself from contract-
ing HIV” after he had “engaged in high-risk [sexual] behav-
ior” while simultaneously sleeping with Jane.
After the St. Clair lawsuit was filed, John made numer-
ous demands2 upon Vigilant—as his father’s insurer—to
defend and indemnify him in the St. Clair lawsuit, relying
on four different homeowner’s insurance policies issued
to his father. The four Vigilant policies included: (1) Policy
Number 5224-35-36—issued to John’s mother and father for
property located at 2100 South 59th Street in St. Louis,
Missouri, effective from January 7, 1985, through January
7, 1986; (2) Policy Number 5228-68-33—issued to John’s
father for property located at 4390 Via Giudici Drive in
St. Louis, Missouri, effective from September 15, 1985,
through September 15, 1991; (3) Policy Number 5229-31-
78—issued to John’s father for Lot #4, Horseshoe Bend #9,
Lake Ozark, Missouri, effective from October 23, 1985,
through October 23, 1989 (“the lake house policy”); and (4)
Policy Number 1060-24-3601—issued to John’s father for
the Via Giudici Drive address, effective from September 15,
1989, through September 15, 1991. After investigating and
2
Indeed, between 1994 and 1998, John made three separate
requests on Vigilant to defend or indemnify him in the St. Clair
lawsuit, each of which was denied.
4 No. 04-1087
reviewing each of the claims, Vigilant denied each request
for coverage.3
During their investigation, Vigilant proceeded to con-
duct a number of depositions as well as serve informal
interrogatories on John through his counsel. For example,
on November 13, 1997, John participated in a deposition
dealing with the St. Clair lawsuit and stated that his
residence was 5525 Wilson Avenue, St. Louis, Missouri and
added that he had lived at that location “all of [his] life.”
John also testified that he had never claimed any other
residence as his own and that he owned no real estate and
had not lived anywhere else for an extended period of time.
In addition, in response to a letter requesting more informa-
tion, dated June 9, 1998, John, through his counsel, stated
that: (a) he never maintained a bedroom at his father’s lake
house and that he resided at his mother’s home “all of [his]
life”; (b) he did not keep personal belongings at the lake
house; and (c) he listed his mother’s address on his tax
returns and other legal documents. After concluding their
investigation, Vigilant made a final determination on
August 13, 1998, and advised John that Vigilant was not
obligated, under any of the policies, to defend him, stating
that they would: “neither defend [n]or indemnify [him in]
[the St. Clair lawsuit] or participate in any settlement.”
On March 29, 1999, Jane and John entered into a confi-
dential Settlement and Mutual Release (“the settlement
agreement”), thus terminating the St. Clair lawsuit.4 In the
3
In refusing to defend or indemnify John in the St. Clair suit,
Vigilant determined that they were not required to do so because
“[t]he complaint [did] not allege any personal injury, bodily injury,
or property damage” within the meaning of the policy.
4
At some point in the litigation John also made a demand on
his mother’s insurer, State Farm Fire and Casualty Company
(continued...)
No. 04-1087 5
settlement agreement, in addition to consenting to the entry
of judgment against him in the amount of $2,000,000, John
also assigned to Jane5 the right to pursue any bad faith or
vexatious refusal to pay claims he accrued6 against Vigilant
4
(...continued)
(“State Farm”), to defend him in the St. Clair lawsuit pursuant to
a homeowner’s insurance policy issued to John’s mother for
the 5525 Wilson Avenue property (where John was living at
the time of the lawsuit). After first refusing to defend or indem-
nify, State Farm eventually agreed to settle a portion of the
claim against John and pay Jane $100,000. In exchange, State
Farm was granted a release from further liability to Jane
under the policy.
5
Bad faith claims against insurers are assignable under Missouri
law. See generally Freeman v. Brasso, 128 S.W.3d 138, 141 (Mo.
Ct. App. 2004); accord Magers v. Nat’l Life & Accident Ins. Co.,
329 S.W.2d 752, 756 (Mo. 1959) (en banc).
6
Missouri law prescribes that: “If the person whose property or
interest therein is injured is dead, the action survives and may be
brought against the wrongdoer by the person appointed
as fiduciary for the estate of the deceased person.” Mo. Stat.
§ 537.010. In addition, as stated supra at p. 5 n.5, bad faith claims
against insurers are assignable under Missouri law. See Freeman,
128 S.W.3d at 143. Accordingly, the assignment of John’s right to
sue Vigilant to Jane was valid and, upon her death, Mo. Stat. §
537.010 dictates that Jane’s right to sue was, by operation of law,
transferred to her “appointed fiduciary,” in this case her sister,
Harper. The only limitation placed on Jane’s—and, by extension,
the administrator of her estate, Harper’s—right to sue would have
been the Missouri statute of limitation, which bars actions in
contract brought more than five years after they accrue. See Mo.
Stat. § 516.120 (stating that “[a]ll actions upon contracts” shall be
brought within five years). In any case, neither party has chal-
lenged either John’s assignment of his right to sue Vigilant to
Jane or Harper’s filing of suit against Vigilant on Jane’s
behalf—and to do so now would be fruitless. See Republic Tobacco
(continued...)
6 No. 04-1087
for refusal to defend him in the St. Clair lawsuit. John died
on November 24, 1999.
Pursuant to John’s assignment of the right to sue, Jane
filed a complaint against Vigilant on July 3, 2001, in St.
Clair County, Illinois alleging: (1) bad faith refusal to
defend; (2) bad faith refusal to settle; and (3) violation
of section 155 of the Illinois Insurance Code, 215 ILCS
5/155. In response, Vigilant filed a motion with the circuit
court seeking permission to remove the case to federal court
pursuant to 28 U.S.C. § 1332. Vigilant’s motion was granted
and the case was removed to the United States District
Court for the Southern District of Illinois. Jane subse-
quently died on October 19, 2001, while the case
was pending. In February, 2002, Harper, Jane’s sister
and estate administrator, was substituted for Jane as the
plaintiff in the pending suit.
Following discovery, Vigilant filed a motion for sum-
mary judgment against Harper, claiming that it had no
duty to defend John in the St. Clair lawsuit because he was
not an insured under the terms of any of his father’s
policies. Also, Vigilant argued that, even if John was an
insured under any of the policies, there was no evidence
in the record which would establish that John infected Jane
during the effective time limits of the lake house policy. The
district court agreed with Vigilant’s arguments and entered
summary judgment in the insurance company’s favor on
November 3, 2003, finding that John was not insured under
the terms of any of Vigilant’s policies issued to John’s father
and that, even if he were, there was no evidence establish-
ing that Jane had been infected during the coverage periods
6
(...continued)
Co. v. North Atlantic Trading Co., Inc., 381 F.3d 717, 728 (7th Cir.
2004) (arguments not presented to the district court are deemed
waived).
No. 04-1087 7
of the policies at issue. Harper appeals the judgment only
with respect to Policy Number 5229-31-78, the lake house
policy.
II. ISSUES
On appeal, Harper argues that the district court erred
in granting Vigilant’s motion for summary judgment.
Specifically, Harper claims that summary judgment was
improper because: (a) Vigilant “failed to establish beyond
dispute that [John] was not an insured person under the
lake house policy because he ‘never resided’ at the vaca-
tion property” and (b) whether or not John infected Jane
with the HIV virus at the vacation property was a dis-
puted question of material fact.
III. DISCUSSION
We review the district court’s grant of summary judgment
de novo, and in doing so view the record in the light most
favorable to Harper, the nonmoving party. See Hottenroth
v. Village of Slinger, 388 F.3d 1015, 1027 (7th Cir. 2004).
Summary judgment is warranted only where “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits . . . show that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). “An issue of
fact is ‘material’ if it is outcome determinative . . .
[h]owever, ‘bare allegations not supported by specific facts
are not sufficient in opposing a motion for summary judg-
ment.’ ” Hottenroth, 388 F.3d at 1027 (quoting Hildenbrant
v. Ill. Dept. of Natural Res., 347 F.3d 1014, 1036 (7th Cir.
2003)).
8 No. 04-1087
As a federal court sitting in diversity by virtue of jurisdic-
tion pursuant to 28 U.S.C. § 1332, we apply state law “to
resolve substantive questions and federal law to resolve
procedural and evidentiary issues.” Colip v. Clare, 26 F.3d
712, 714 (7th Cir. 1994) (citing Mercado v. Ahmed, 974 F.2d
863, 866 (7th Cir. 1992)). In the district court proceedings,
both parties “agree[d] that . . . the substantive law of the
State of Missouri” would govern interpretation of the
insurance contract at issue. Harper v. Vigilant Ins. Co., No.
01-CV-554-MJR, at *7 (S.D.Ill. Nov. 3, 2003). Also, because
the trial court proceeded to conduct an independent choice-
of-law analysis and determined that Missouri law should
apply to the interpretation of the insurance contract and
because neither party has challenged that determination,
they are barred from doing so now. See id. at *7-8; Muslin
v. Frelinghuysen Livestock Managers, Inc., 777 F.2d 1230,
1231 n.1 (7th Cir. 1985). Thus, under the familiar rule of
Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), we apply
Missouri substantive law to the issues raised in this appeal.
Where the Missouri Supreme Court has not confronted a
particular issue (e.g., whether the term “household” as used
in an insurance contract is ambiguous), we are called upon
to predict how that court would decide if presented with the
same question. See Smith v. Equitable Life Assurance Soc’y
of the United States, 67 F.3d 611, 615 (7th Cir. 1995). In the
absence of a Missouri Supreme Court ruling on an issue,
the decisions of the Missouri Court of Appeals will control
unless there is persuasive evidence that the Missouri
Supreme Court would rule differently. See Clarin Corp. v.
Mass. Gen. Life Ins. Co., 44 F.3d 471, 474 (7th Cir. 1994).
A. John’s possible coverage as a member of his father’s
household
Harper initially argues that summary judgment in favor
of Vigilant was inappropriate because whether John should
No. 04-1087 9
be considered a “resident” of his father’s “household” for
purposes of the lake house policy constituted a “genuine
issue of material fact” pursuant to FED. R. CIV. P. 56(c). We
disagree.
Under Missouri law, “[i]n general, the meaning of an
insurance contract and, in particular, coverage is a question
of law.” Liberty Mut. Ins. Co. v. Havner, 103 S.W.3d 829,
832 (Mo. Ct. App. 2003). However, where a provision in an
insurance policy is ambiguous or “susceptible to two or more
meanings . . . , the court must adopt the meaning that is
most advantageous to the insured’s position.” Id. The
rationale underpinning this rule of law is that, “[i]n drafting
insurance policies, the insurer ‘has the opportunity to
clearly word exclusions and limits of liability.’ ” JAM Inc. v.
Nautilus Ins. Co., 128 S.W.3d 879, 893 (Mo. Ct. App. 2004)
(quoting Southern General Ins. Co. v. WEB Assoc./Elec.,
Inc., 879 S.W.2d 780, 782 (Mo. Ct. App. 1994)).
The Missouri Supreme Court, to date, has not specifically
addressed the question of whether the term “household”
when left undefined in an insurance contract is considered
ambiguous; however, in a 1979 en banc decision, the
Missouri Supreme Court noted that “ ‘[h]ousehold’ is a
chameleon like word . . . [t]he definition depends on the
facts of each case . . . [i]t is difficult to deduce any general
principles.” Cobb v. State Sec. Ins. Co., 576 S.W.2d 726, 738
(Mo. 1979) (en banc). Nonetheless, despite the Missouri
Supreme Court’s admonition in Cobb, the Missouri Court of
Appeals for the Western District of Missouri undertook the
near impossible task of actually defining the term “house-
hold,” and having done so, declared the term unambiguous
“within and for the purposes of ‘homeowners’ insurance
policies.” Watt v. Mittlestadt, 690 S.W.2d 807, 816 (Mo. Ct.
App. 1985) (defining household as “a collection of persons,
whether related by consanguinity or affinity or not related
at all but who live or reside together as a single group or
unit which is of a permanent and domestic character, with
10 No. 04-1087
one head, under one roof or within a single curtilage; who
have a common subsistence and who direct their atten-
tion toward a common goal consisting of their mutual
interest and happiness.”). However, in 2003 the Missouri
Court of Appeals for the Western District overruled its own
decision in Watt, finding the definition unworkable and
concluded that “[b]ecause the meaning of the court’s
definition is indistinct, [the term “houshold” as a matter
of law] is ambiguous.” Liberty Mut. Ins. Co., 103 S.W.3d
at 833 (citing Martin v. U.S. Fid. & Guar. Co., 996 S.W.2d
506, 508 (Mo. 1999) (en banc)). Thus, due to the fact that
the Watt court reversed itself, and because the Missouri
Supreme Court has expressly described the term “house-
hold” when incorporated into a homeowner’s insurance
policy as “chamaeleon like” and dependant on the “facts
of each case,” see Cobb, 576 S.W.2d at 738, we conclude
that, if the Missouri Supreme Court were to consider the
issue, the court would conclude that the term “household”
is indeed ambiguous. See Dumas v. Infinity Broad. Corp.,
416 F.3d 671, 681 n.11 (7th 2005).
Accordingly, because the term “household” as incorpo-
rated into the lake house policy is ambiguous, we inter-
pret that term against the drafter, Vigilant, and in favor of
coverage for the insured. See Krombach v. Mayflower Ins.
Co., 827 S.W.2d 208, 210 (Mo. 1992) (en banc).7 Never--
theless, where “there is no coverage under any reasonable
7
As the Missouri Supreme Court noted “[t]here are at least two
reasons for this rule of construction. . . . First, insurance is
designed to furnish protection to the insured, not defeat it.
Ambiguous provisions of a policy designed to cut down, restrict, or
limit insurance coverage already granted, or introducing excep-
tions or exemptions must be strictly construed against the insurer
. . . . Second, as the drafter of the insurance policy, the insurance
company is in the better position to remove ambiguity from the
contract.” Id. at 210-11 (internal citations omitted).
No. 04-1087 11
interpretation of . . . the policy” summary judgment in favor
of the insurer, here Vigilant, is a proper remedy. See Liberty
Mut. Ins. Co., 103 S.W.3d at 833 (citing Greer v. Zurich Ins.
Co., 441 S.W.2d 15, 30 (Mo. 1969)).
This is such a case. Under any reasonable interpreta-
tion of the language in the insurance contract, John
cannot be considered a “resident” of his father’s “house-
hold.”8 The term “household”, as determined by the Mis-
souri Supreme Court, generally refers to “a close relation-
ship, varying in detail, where people live together as a
family in a closely-knit group, usually because of a close
relationship by blood, marriage or adoption and who deal
with each other informally and not at arms length.” Cobb,
576 S.W.2d at 738; cf. Elder v. Metro. Prop. & Cas. Co., 851
S.W.2d 557, 559-60 (Mo. Ct. App. 1993). In addition, the
Missouri Courts of Appeals have expanded on this prece-
dent holding that, in order to be a “resident” of an insured’s
“household,” an individual must establish that his stay in
the insured’s home was intended to be “ ‘something of
permanence or continuity at least for an indefinite period
[of time], to the exclusion of another contemporaneous
residence.” Pruitt v. Farmers Ins. Co., 950 S.W.2d 659, 664
8
The lake house policy provided liability insurance for John’s
father and his “relatives” only if they were “residents of [his]
household.” The language of the policy neither defines “relatives”
nor does it define “residents of [his] household.” Vigilant does
not dispute that John was a relative of his father. The question is
whether John’s infrequent social visits to his father’s lake house
during the effective policy period qualified him as a “resident of
[his father’s] household,” thereby granting him insured status
under the policy. Under Missouri law, Harper has the burden of
establishing that John was an insured under the lake house
policy, a burden which she has failed to carry. See Shelter General
Ins. Co. v. Siegler, 945 S.W.2d 24, 27 (Mo. Ct. App. 1997); see also
Auto. Club Inter-Ins. Exch. v. Medrano, 83 S.W.3d 632, 638 (Mo.
Ct. App. 2002).
12 No. 04-1087
(Mo. Ct. App. 1997) (quoting Clarkson v. MFA Mut. Ins. Co.,
413 S.W.2d 10, 13 (Mo. Ct. App. 1967)).9
During the time frame at issue, John neither lived with
his father in a “close-knit group” nor did he fulfill the
requirement of maintaining a permanent continuity of
existence at his father’s lake house “to the exclusion of
another contemporaneous residence.” Indeed, there is no
evidence which would lead us to believe that John’s visits to
his father’s lake house were of a permanent nature or that
John at any point intended to establish a residence at the
lake house or remain as a member of his father’s family—to
the exclusion of his mother’s residence in St. Louis. For
example, in a deposition taken in conjunction with the St.
Clair lawsuit John stated that his residence was 5525
Wilson Avenue in St. Louis and that he had resided there
“all of [his] life.”10 In addition, John designated the St. Louis
address on a number of legal documents, such as tax
returns and “all other applications.” Although John admits
visiting his father’s lake house with Jane “maybe six times
a year,” and “pretty consistently” at other times throughout
his life, there is no evidence in the record which would
demonstrate that John’s living arrangements consisted of
more than intermittent social visits to the lake house, while
his permanent home remained in St. Louis with his mother.
Further, in responding to a questionnaire provided to him
by Vigilant, John stated that he did not maintain a bedroom
at the lake home, nor did he keep any of his personal
9
The term “residence” has been defined by the Missouri Courts
of Appeals as a “person’s physical location coupled with his in-
tent to remain there for an indefinite period of time.” American
Family Mut. Ins. Co. v. Auto. Club Inter-Ins. Exch., 757 S.W.2d
304, 306 (Mo. Ct. App. 1988).
10
John lived at the St. Louis address with his mother and father
until his parents’ separation and, after his father moved out,
continued living at the house with his mother.
No. 04-1087 13
possessions at the lake home. Thus, although the question
of whether a person is a “resident” of an insured’s “house-
hold” under the language of an insurance policy is a
question of fact, Liberty Mutual Insurance Co. v. Havner,
103 S.W.3d 829, 832 (Mo. Ct. App. 2003), the evidence in
the record fails to establish a genuine issue of material fact
as to whether John was an insured and, as such, the district
court properly granted summary judgment in favor of
Vigilant, see Cameron Mutual Insurance Co. v. Marler, et
al., 926 S.W.2d 62, 65 (Mo. Ct. App. 1996).
B. John’s potential coverage as a an officer or employee
of his father’s company
In a related, but poorly developed argument, Harper also
argues that John was an insured under the lake house
policy by virtue of his employment with Crescent Parts &
Equipment (“Crescent”), his father’s company. The record
establishes that Harper failed to properly present this
argument to the district court, aside from stating—in her
brief challenging summary judgment—that “[t]he lake
house policy was issued to Mr. Doe’s father and Crescent
Parts & Equipment Company.” Plaintiff’s Brief in Op-
position to Defendant’s Motion for Summary Judgment,
p. 13. Accordingly, because Harper failed to properly pre-
sent the issue to the district court in response to Vigilant’s
motion for summary judgment, that issue is waived. See
Republic Tobacco Co. v. N. Atl. Trading Co., 381 F.3d 717,
728 (7th Cir. 2004) (quoting Arendt v. Vetta Sports, Inc., 99
F.3d 231, 237 (7th Cir. 1996)).
In addition to waiving the argument in the district court,
Harper also failed to address the issue on appeal aside from
stating that “[t]he coverage provided to [John’s] employer
under the policy would be rendered illusory if it extended
only to those meeting the definition now proposed by
Vigilant Insurance Company.” The argument is more
14 No. 04-1087
developed in Harper’s reply brief, but this is too little, too
late, for “[a]rguments raised for the first time in a reply
brief are [also] waived.” James v. Sheahan, 137 F.3d 1003,
1008 (7th Cir. 1998); see Hess v. Reg-Ellen Machine Tool
Corp., 423 F.3d 653, 665 (7th Cir. 2005); United States v.
Spaeni, 60 F.3d 313, 317 (7th Cir. 1995); see also Coker v.
Trans World Airlines, Inc., 165 F.3d 579, 586 (7th Cir. 1999)
(failure to develop an argument until the moment of no
return, i.e., the filing of a reply brief, constitutes waiver).
Nevertheless, even if we were to assume arguendo that
the issue was not waived, Harper’s argument that Cres-
cent—and by extension John—was an insured under the
lake house policy is unsupported either with facts in the
record or the required case law applicable thereto. The only
evidence Harper offers in support of her contention that
Crescent was a named insured under the lake house policy
is the inclusion of the following language under the mailing
address heading of the policy: “[John’s father] % Crescent
Parts & Equipment.” Harper avails herself of this alleged
ambiguity to argue in her reply brief that the existence of
the “%” symbol creates an ambiguity in the contract as to
whether Crescent was a named insured, and that under
Missouri law we must therefore interpret the ambiguity in
favor of the insured. See Harrison v. Tomes, 956 S.W.2d
268, 270 (Mo. 1997) (en banc). One problem with this
unsupported, yet creative argument is that Harper has
failed to supply this court with any precedential support for
the proposition that a mailing address could ever create an
additional named insured, where that party is not a named
insured anywhere else in the underlying contract. Cf.
Prestigiacamo v. American Equitable Assurance Co. of N.Y.,
221 S.W.2d 217, 218-23 (Mo. Ct. App. 1949).11 Also, even if
11
In addition, it should be noted that Crescent is not listed in
(continued...)
No. 04-1087 15
it were reasonable to conclude, which it is not, that the
mailing address created a patent ambiguity in the contract
and that, by virtue of the ambiguity Crescent should be
considered an insured under the lake house policy, Harper’s
claims still must fail. This is because John, as an officer and
employee of Crescent,12 cannot be considered an insured
under any “reasonable interpretation of the [lake house]
policy.” See Liberty Mut. Ins. Co., 103 S.W.3d at 833. The
general rule in Missouri, as well as other jurisdictions, is
that under insurance liability policies, when a corporation
is exclusively listed as the named insured on the policy, the
corporation’s shareholders, officers, and employees are not
considered additional insureds under the policy unless the
policy specifically provides otherwise. See Ott v. Firemen’s
Fund Ins. Co., 936 S.W.2d 165, 166 (Mo. Ct. App. 1996);
Guarantee Ins. Co. v. Anderson, 585 F. Supp. 408, 411 (E.D.
Pa. 1984); Young v. Ray America, Inc., 673 S.W.2d 74, 79
(Mo. Ct. App. 1984); see also Couch on Insurance § 40:15 ¶3
(3d ed. 2005) (“A liability policy on a corporate entity does
not automatically cover its employees or members.”).13
11
(...continued)
the specific section of the insurance contract entitled “Addi-
tional Insured.”
12
In deposition testimony John stated that he was both an offi-
cer and employee of Crescent. Specifically, John stated that he
held the executive title of “perhaps secretary, treasurer, some-
thing along those lines,” and contemporaneously acted as a
“product manager.”
13
Even if Crescent were covered by a commercial general liabil-
ity policy, coverage would only extend to officers and employees
acting “within the scope of [their] authority or employment.”
Maryland Cas. Co. v. Huger, 728 S.W.2d 574, 579 (Mo. Ct. App.
1987); see Aetna Cas. & Sur. Co. v. Pavlovitz, 826 S.W.2d 362, 366-
67 (Mo. Ct. App. 1992); see Judge Almon H. Maus, Missouri
Practice Series: Insurance Law and Practice § 10.20 (West 1997);
(continued...)
16 No. 04-1087
Thus, because we hold that the issue of whether John was
an insured as an officer or employee of Crescent was waived
by Harper when she failed to sufficiently raise it either in
the district court or on appeal, and because the argument is
without merit as set forth herein, we need not consider it
further and conclude that such an argument would not have
precluded the district court from properly granting Vigi-
lant’s motion for summary judgment.
C. Whether Jane was infected during the applicable
insurance policy coverage period
Because we hold that John was not an insured under
the terms of his father’s lake house policy, we need not
address Harper’s argument that there was a dispute as to a
question of material fact regarding the question of whether
John infected Jane with the HIV virus during the effective
policy period of the lake house insurance contract.14
13
(...continued)
Couch on Insurance § 126:7 (3d ed. 2005). Neither party al-
leged that the lake house policy constituted a general liability
policy; therefore, even if Crescent were an insured, John as an
officer and/or employee would not have been covered under the
policy. See id. What’s more, Harper does not argue, nor could
she argue, that John’s alleged negligent acts occurred while he
acting “within the scope of his authority or employment.” Mary-
land Cas. Co., 728 S.W.2d at 579.
14
Also, because we have found that John was not an insured
under the lake house policy and, therefore, Vigilant owed no
duty to defend John in the St. Clair lawsuit, we need not analyze
Harper’s claim that Vigilant violated section 155 of the Illinois
Insurance Code, as an essential element of that claim is
that Vigilant had a duty to defend John. See Yamada Corp. v.
Yasuda Fire and Marine Ins. Co., 712 N.E.2d 926, 931 (Ill. App.
1999).
No. 04-1087 17
IV. CONCLUSION
The decision of the district court is
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-6-05