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Old White Charities, Inc. v. Bankers Insurance, LLC

United States District Court, S.D. West Virginia, Beckley Division

June 27, 2018




         The Court has reviewed the Defendant Bankers Insurance, LLC's Motion for Summary Judgment (Document 21) and Memorandum of Law in Support (Document 22), the Response of Old White Charities, Inc. in Opposition (Document 28), and the Defendant's Reply (Document 30). The Court has also reviewed the Plaintiff Old White Charities' Motion for Partial Summary Judgment on Liability (Document 43) and Memorandum in Support (Document 44), Bankers Insurance, LLC'S Response (Document 50), and the Plaintiff's Reply (Document 53), as well as the Plaintiff's Emergency Motion for Leave to File Supplemental Memorandum Supporting its Position on Pending Motions for Summary Judgment (Document 120) and Memorandum in Support (Document 121), the Defendant's Response (Document 155), and the Plaintiff's Reply (Document 158), the Complaint (Document 1), and all attached exhibits. Finally, the Court has reviewed the Third Party-Defendant All Risks, LTD.'s Motion to Dismiss Third-Party Complaint of Bankers Insurance, LLC (Document 19) and Memorandum of Law in Support (Document 20), the Defendant Bankers Insurance, LLC's Response (Document 25), and the Third-Party Defendant All Risks, LTD's Reply (Document 27). For the reasons stated herein, the Court finds that the Defendant's motion for summary judgment should be granted, the Plaintiff's motion for partial summary judgment and motion to supplement the briefings should be denied, and the Third-Party Defendant's motion to dismiss should be granted.


         The Plaintiff, Old White Charities, Inc. (“Old White”) initiated this lawsuit with a complaint in this Court in February 2017. Old White's complaint arises out of the same factual scenario before this Court in Talbot 2002 Underwriting Capital LTD, et al., v. Old White Charities, Inc., Civil Action Number 5:15-cv-12542, wherein this Court entered a Memorandum Opinion and Order (Document 246) granting summary judgment on behalf of the plaintiffs and third-party defendants and against Old White. The Court adopts the statement of facts and procedural history set forth in that opinion, but provides the following concise summary for the purpose of addressing these pending motions.

         Old White is a non-profit corporation affiliated with the Greenbrier Resort (“The Greenbrier”) in White Sulphur Springs, West Virginia. The Greenbrier hosts an annual PGA Tour golf tournament known as the Greenbrier Classic. During the 2015 Greenbrier Classic, which took place from July 1, 2015 to July 5, 2015, the resort offered a promotion called the Hole-In-One Fan Jackpot, wherein the Greenbrier promised to pay fans seated in the grandstands around the eighteenth hole $100 for the first hole-in-one, $500 for the second hole-in-one and $1, 000 for the third. Old White enlisted the Defendant/Third-Party Plaintiff here, Bankers Insurance, LLC (“Bankers”), to work as its agent and procure an insurance policy covering the hole-in-one promotion. Bankers then enlisted the help of Third-Party Defendant All Risks, LTD. (“All Risks”) to obtain the policy for Old White.

         Old White eventually entered into an insurance policy through which the insurers agreed to pay Old White $150, 000 for the first hole-in-one made by any golfer, $750, 000 for the second, and $1, 400, 000 for the third, for a total insurance value of $2, 300, 000. Importantly, the application for the insurance policy, filled out by employees of both Old White and Bankers, contained a warranty that required the hole in question to play a minimum of 150 yards. Old White employee Monte Ortel, who at the time was the executive director for the Greenbrier Classic, reviewed the insurance application and sent it to another Old White employee, Charles Henthorn. In sending the policy application, Mr. Ortel informed Mr. Henthorn that the application required some revisions. (Bankers' Mem. of Law in Supp., Ex. D.) While edits were made to the application between Mr. Ortel and Mr. Henthorn, at no point was the 150-yard minimum warranty crossed out or edited in any way. (Id., Ex. E.) In working with Bankers to fill out and execute the policy application, Old White's employee Charles Henthorn testified that he knew the application contained a 150-yard minimum when he read and signed it on behalf of Old White. (Bankers' Mem. of Law in Supp., Ex. G)(Henthorn Dep., 38:21-40:5.)

         The final policy binder contained an exclusion requiring that the hole in question be at least 170 yards from the tee. During the tournament, two golfers hit holes-in-one at the eighteenth hole, and Old White paid the fans seated in the grandstands around the hole approximately $200, 000 in cash. It is undisputed, and this Court has previously found, that both of the holes-in-one were hit from a distance of only 137 yards.

         Following Old White's demand for insurance coverage on the payouts made during the hole-in-one promotion, the insurance underwriters brought suit in Talbot. The plaintiffs in Talbot sought a declaration that Old White was not entitled to coverage under the policy on the grounds that the hole in question only played 137 yards from the tee in violation of the insurance policy. Bankers, as the agent that assisted Old White in procuring the policy, moved to intervene in Talbot, and the Court granted that motion. Shortly thereafter, Bankers filed a third-party complaint against All Risks, LTD (“All Risks”). Bankers had requested All Risks to serve as its intermediary in acquiring the insurance policy for Old White, and alleged in its cross-claim that All Risks, among other wrongs, negligently failed to inform Bankers and Old White that the final policy included a minimum yardage requirement for the hole. Amidst its other claims, however, Bankers did not put forth claims for indemnification or contribution against All Risks. Pursuant to its Memorandum Opinion and Order (Document 116 in Civil Action No. 5:15-cv-12542), the Court dismissed Bankers' cross claim against All Risks, finding that Bankers had failed to plead an adequate contractual relationship or any other special relationship between it and All Risks. (Id. at 12-17.)

         The Court eventually granted summary judgment against Old White and in favor of the Plaintiffs in Talbot. (Document 246 in 5:15-cv-12542.) The Court found that Old White was not entitled to coverage under the insurance policy because the terms of the policy were unambiguous. The Court found that both Old White and Bankers knew the policy application contained a minimum yardage requirement, and that the hole did not satisfy that minimum yardage requirement when golfers made the holes-in-one. The Court entered judgment against Old White on January 10, 2017, and on February 6, 2017, Old White filed its notice of appeal to the Fourth Circuit. The Fourth Circuit issued an opinion on December 20, 2017, affirming the Court's order granting summary judgment against Old White. The Fourth Circuit specifically ruled that Old White was not entitled to coverage under the policy “even if the terms of the application are interpreted to supersede those of the final policies, as Old White also did not satisfy the application's unambiguous 150-yard minimum term.” (Document 257 in Civil Action No. 5:15-cv-12542, at 5.)

         While that appeal was pending, Old White initiated this action against Bankers, including three counts. In Count I, Old White alleges that Bankers was negligent in that it improperly completed the insurance application, failed to inform Old White of the terms of coverage negotiations, failed to review the final policy binder, and ultimately failed to secure the type of coverage that Old White instructed it to secure. (Compl., at ¶¶ 31-32.) In Count II, Old White alleges that Bankers' actions during the process of obtaining coverage entitle Old White to a reasonable expectation of coverage. (Id. at ¶¶ 33-36.) Finally, in Count III, Old White claims that Bankers made material misrepresentations and is therefore liable to Old White for Old White's lack of coverage under the policy. (Id. at ¶¶ 37-43.) Bankers subsequently filed its Third-Party Complaint (Document 14) against All Risks on August 7, 2017, wherein it alleged that it is entitled to indemnification and contribution from All Risks should Old White's claims against Bankers be permitted to proceed. (Third-Party Compl., at ¶¶ 14-15.)


         The well-established standard in consideration of a motion for summary judgment is that “[t]he court shall grant summary judgment if the movant shows 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); see also Hunt v. Cromartie, 526 U.S. 541, 549 (1999); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Hoschar v. Appalachian Power Co., 739 F.3d 163, 169 (4th Cir. 2014). A “material fact” is a fact that could affect the outcome of the case. Anderson, 477 U.S. at 248; News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). A “genuine issue” concerning a material fact exists when the evidence is sufficient to allow a reasonable jury to return a verdict in the nonmoving party's favor. FDIC v. Cashion, 720 F.3d 169, 180 (4th Cir. 2013); News & Observer, 597 F.3d at 576.

         The moving party bears the burden of showing that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp., 477 U.S. at 322-23. When determining whether summary judgment is appropriate, a court must view all of the factual evidence, and any reasonable inferences to be drawn therefrom, in the light most favorable to the nonmoving party. Hoschar, 739 F.3d at 169. However, the nonmoving party must offer some “concrete evidence from which a reasonable juror could return a verdict in his favor.” Anderson, 477 U.S. at 256. “At the summary judgment stage, the non-moving party must come forward with more than ‘mere speculation or the building of one inference upon another' to resist dismissal of the action.” Perry v. Kappos, No.11-1476, 2012 WL 2130908, at *3 (4th Cir. June 13, 2012) (unpublished decision) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)).

         In considering a motion for summary judgment, the court will not “weigh the evidence and determine the truth of the matter, ” Anderson, 477 U.S. at 249, nor will it make determinations of credibility. N. Am. Precast, Inc. v. Gen. Cas. Co. of Wis., 2008 WL 906334, *3 (S.D. W.Va. Mar. 31, 2008) (Copenhaver, J.) (citing Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986). If disputes over a material fact exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party, ” summary judgment is inappropriate. Anderson, 477 U.S. at 250. If, however, the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, ” then summary judgment should be granted because “a complete failure of proof concerning an essential element . . . necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322-23.

         When presented with motions for summary judgment from both parties, courts apply the same standard of review. Tastee Treats, Inc. v. U.S. Fid. & Guar. Co., 2008 WL 2836701 (S.D. W.Va. July 21, 2008) (Johnston, J.) aff'd,474 Fed.Appx. 101 (4th Cir. 2012). Courts “must review each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law, ” resolving factual disputes and drawing inferences for the non-moving party as to each motion. Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (internal quotation marks and ...

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