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The owner of two businesses who described one business on his insurance policy but not the other is not entitled to coverage for litigation filed against the undescribed firm, says a federal appeals court in upholding lower court ruling.
Benjy D. Smith owns and operates both a courier service and security service, according to Thursday’s ruling by the 10th U.S. Circuit Court of Appeals in Denver in Benjy D. Smith v. The Burlington Insurance Co.
In 2015, one of his armed security guards allegedly shot Monroe Bird III while on duty at a Tulsa, Oklahoma, apartment complex, according to the ruling. Mr. Bird later died from his injuries, and his mother filed a wrongful death lawsuit against the security firm.
At the time of the shooting, Mr. Smith had a commercial general liability policy with Burlington, North Carolina-based Burlington Insurance Co. that identified “courier service” as his business.
After the insurer denied coverage for the wrongful death litigation, Mr. Smith filed suit against Burlington in state court, which the insurer removed to U.S. District Court in Muskogee, Oklahoma.
The District Court concluded “that the plain language of the policy unambiguously covered only Smith’s courier business,” said the ruling.
A unanimous three-judge appeals court panel upheld the lower court ruling.
The “policy is unambiguous: Smith was the insured, but only with respect to the conduct of his business … and that business was his courier service,” said the ruling.
Attorneys in the case could not be reached for comment.
A Travelers Cos. Inc. unit has prevailed in a case decided by the Wisconsin Supreme Court, which upheld the enforceability of a subrogation waiver in a dispute over a damaged barn in a divided ruling.