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Grand China Buffett & Grill, Inc. v. State Auto Property & Casualty Co.

United States District Court, N.D. West Virginia

May 16, 2017




         Plaintiffs Qi Feng Chen (“Chen”) and Grand China Buffet & Grill, Inc. (“Grand China”), filed a complaint in the Circuit Court of Harrison County, West Virginia, on June 17, 2016 (Dkt. No. 1-1), which, in part, sought a declaration that defendant State Auto Property & Casualty Co. (“State Auto”) has a duty to defend and indemnify them against a wrongful exclusion action filed in state court by Scott Ullom (“Ullom”) on July 21, 2015 (“underlying complaint”) (Dkt. No. 1-1 at 23). State Auto removed the case to this Court on July 22, 2016 (Dkt. No. 1). Now pending is State Auto's motion for summary judgment on the coverage issues in the case (Dkt. No. 25). For the reasons that follow, the Court GRANTS State Auto's motion.

         I. BACKGROUND

         A. The Underlying Complaint

         On July 21, 2015, Ullom filed the underlying complaint in the Circuit Court of Harrison County, West Virginia, seeking to hold Chen liable in his capacity as “Director, Incorporator, and President” of Grand China for violations of the West Virginia Human Rights Act (“WVHRA”), as well as “all applicable West Virginia Statutes” and “Constitutional Laws” (Dkt. No. 1-1 at 25). The underlying complaint alleges that Ullom has hearing and other physical impairments that require him to use a service dog, prosthetic foot, and, at times, a wheelchair. Id. at 24.

         Ullom claims that, on July 23, 2013, he and his friend were refused service[1] at Grand China by an “oriental looking” individual believed to be the manager, Stanley Sun (“Sun”). Id. at 23. Sun allegedly would not allow Ullom to bring his service dog into the restaurant, even after Ullom advised that the dog was not a pet but provided assistance. Id. at 23-24. The underlying complaint claims that Sun “frantically wave[d] both hands above his head and in front of his face, ” and yelled “the dog cannot come in, the dog cannot come in.” Id. at 23. After exiting Grand China, Ullom dialed 911. The Clarksburg City Police arrived shortly thereafter to investigate the incident, but advised Ullom that Chen was “afraid of what other customers would say about a dog in his restaurant, ” and that he had the “right to refuse service to anyone.” Id. at 24.

         The underlying complaint seeks “a significant amount” of damages under the WVHRA, both to accommodate Ullom and to punish Chen and Grand China for their “intentional acts of wrong doing.” Id. at 25. It also seeks damages for emotional distress, embarrassment, and humiliation in an amount that will “fairly compensate [Ullom] for the intentional acts of wrong doing.” Id.

         B. Procedural Background

         When Chen placed Grand China's commercial general liability insurance company, State Auto, on notice of the underlying complaint, the carrier at first provided a defense. See id. at 8. After deposing Ullom, however, State Auto decided that he had not incurred a “bodily injury” covered under Grand China's policy (“the Subject Policy”), and withdrew any further defense to Grand China and Chen. Id. at 9.

         As a result of State Auto's decision to withdraw its defense, Grand China and Chen[2] filed the instant action against State Auto and Ullom in the Circuit Court of Harrison County on June 17, 2016. See id. at 6. The complaint seeks the following declarations: (1) “that the Subject Policy does provide them with bodily injury liability coverage for some or all” of Ullom's claims in the underlying complaint; (2) “that the Subject Policy does provide them with personal and advertising injury liability coverage for some or all” of Ullom's claims in the underlying complaint; and (3) that State Auto's reservation of rights was improperly and untimely issued and that State Auto is barred by waiver and estoppel from avoiding coverage obligations, or alternatively, that the reservation of rights is the sole statement of the basis for coverage avoidance. Id. at 12-14. In addition to the declaratory claims, the complaint seeks damages for breach of contract, common law bad faith, a Hayseeds claim, and violations of the West Virginia Unfair Trade Practices Act. Id. at 15-21.

         State Auto removed the case to this Court on July 22, 2016 (Dkt. No. 1 at 2). On July 29, 2016, State Auto answered the complaint, and filed a counterclaim and cross claim for declaratory relief against Grand China and Ullom (Dkt. No. 4). State Auto seeks declarations that Ullom's claims in the underlying complaint are not covered by the Subject Policy, and that it has no duty to defend or indemnify Grand China. Id. at 18.

         On August 22, 2016, Grand China moved to remand the case to the Circuit Court of Harrison County based on lack of complete diversity (Dkt. No. 7). State Auto opposed the motion and requested that the Court realign Ullom as a plaintiff to create complete diversity (Dkt. No. 10). At a scheduling conference on September 29, 2016, the Court denied Grand China's motion to remand, granted State Auto's motion to realign Ullom as a plaintiff, bifurcated the case, and scheduled deadlines for dispositive motions on the coverage issues raised in the case. On November 8, 2016, State Auto moved for summary judgment on the coverage issues (Dkt. No. 25). That motion is fully briefed and ripe for review.


         Summary judgment is appropriate where the “depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials” establish that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A). When ruling on a motion for summary judgment, the Court reviews all the evidence “in the light most favorable” to the nonmoving party. Providence Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000). The Court must avoid weighing the evidence or determining its truth and limit its inquiry solely to a determination of whether genuine issues of triable fact exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

         The moving party bears the initial burden of informing the Court of the basis for the motion and of establishing the nonexistence of genuine issues of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has made the necessary showing, the non-moving party “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256 (internal quotation marks and citation omitted). The “mere existence of a scintilla of evidence” favoring the non-moving party will not prevent the entry of summary judgment; the evidence must be such that a rational trier of fact could reasonably find for the nonmoving party. Id. at 248-52.


         “A federal court exercising diversity jurisdiction is obliged to apply the substantive law of the state in which it sits.” Volvo Const. Equip. N. Am. v. CLM Equip. Co., Inc., 386 F.3d 581, 599-600 (4th Cir. 2004) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79 (1938)). The Court must therefore apply West Virginia law. See Beckley Mech., Inc. v. Erie Ins. & Cas. Co., 374 F. App'x 381, 383 n.1 (4th Cir. 2010) (unpublished decision) (citing Erie, 304 U.S. 64). In West Virginia, “[d]etermination of the proper coverage of an insurance contract when the facts are not in dispute is a question of law.” Syl. Pt. 1, Tennant v. Smallwood, 568 S.E.2d 10 ( W.Va. 2002).

         Liability insurance policies establish two main duties on the part of the insurer, the duty to defend and the duty to indemnify. See, e.g., Aetna Cas. & Sur. Co. v. Pitrolo, 342 S.E.2d 156, 160 ( W.Va. 1986); Donnelly v. Transp. Ins. Co., 589 F.2d 761, 765 (4th Cir. 1978). An insurer's duty to defend is normally triggered when “the allegations in the plaintiff's complaint are reasonably susceptible of an interpretation that the claim may be covered by the terms of the insurance policy, ” but “[t]here is no requirement that the facts alleged in the complaint specifically and unequivocally make out a claim within the coverage.” Pitrolo, 342 S.E.2d at 160; see also Syl. Pt. 2, Farmers & Mechs. Mut. Ins. Co. of W.Va. v. Cook, 557 S.E.2d 801, 802 ( W.Va. 2001). If any of the claims against the insured might trigger coverage, the insurer must defend against all the claims. See Horace Mann Ins. Co. v. Leeber, 376 S.E.2d 581, 584 ( W.Va. 1988) (citing Donnelly, 589 F.2d at 765). Nevertheless, the insurer need not provide a defense if the claims are “entirely foreign to the risk insured against.” Air Force Ass'n v. Phoenix Ins. Co., 896 F.2d 545 (4th Cir. 1990) (unpublished table decision) (citing Donnelly, 589 F.2d at 765).

         The specific wording of an insurance policy determines whether it provides coverage for a particular claim. See Beckley Mech., 374 F. App'x at 383; Cherrington v. Erie Ins. Prop. & Cas. Co., 745 S.E.2d 508, 524 ( W.Va. 2013). Indeed, “[l]anguage in an insurance policy should be given its plain, ordinary meaning.” Syl. Pt. 8, Cherrington, 745 S.E.2d 508 (internal quotations and citations omitted). Courts should not endeavor to interpret policy provisions unless they are unclear or ambiguous. Id. Instead, courts must give terms and provisions their meaning in the “plain, ordinary and popular sense, not in a strained or philosophical sense.” Polan v. Travelers Ins. Co., 192 S.E.2d 481, 484 ( W.Va. 1972); see also Syl. Pt. 9, Cherrington, 745 S.E.2d 508.

         A term is ambiguous if it “is reasonably susceptible of two different meanings or is of such doubtful meaning that reasonable minds might be uncertain or disagree as to its meaning.” Allstate Ins. Co. v. Ashley, 37 F.3d 1492, at *2 (4th Cir. 1994) (unpublished table decision) (quoting Syl. Pt. 1, Surbaugh v. Stonewall Cas. Co., 283 S.E.2d 859, 860 ( W.Va. 1981)). Courts should resolve any ambiguity in favor of the insured. See Jenkins v. State Farm Mut. Auto. Ins. Co., 632 S.E.2d 346, 350 ( W.Va. 2006) (quoting Leeber, 376 S.E.2d at 584).


         Grand China's complaint seeks a declaration that State Auto is obligated to defend it against Ullom's allegations because the underlying complaint alleges a “bodily injury” or “personal and advertising injury” within the meaning of the Subject Policy.[3]

         A. Bodily Injury

         Grand China first seeks a declaration that the Subject Policy provides “bodily injury liability coverage for some or all of the claims asserted and losses allegedly sustained” by Ullom in the underlying complaint (Dkt. No. 1-1 at 12). State Auto, however, contends that the underlying complaint does not allege a claim for “bodily injury” as that term is defined in the Subject Policy (Dkt. Nos. 4 at 17; 26 at 9-11).

         The Subject Policy provides coverage for “bodily injury” as follows (Dkt. No. 25-2 at 97, 108):



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