Benahmed Ex Rel. Estate of Zbedah v. Houston Casualty Co.

486 F. App'x 508
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 16, 2012
Docket11-3027, 11-3041
StatusUnpublished
Cited by7 cases

This text of 486 F. App'x 508 (Benahmed Ex Rel. Estate of Zbedah v. Houston Casualty Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Benahmed Ex Rel. Estate of Zbedah v. Houston Casualty Co., 486 F. App'x 508 (6th Cir. 2012).

Opinion

CLAY, Circuit Judge.

This action arises between Plaintiff Ami-na Benahmed, as executor of her deceased husband’s estate, and Defendant Houston Casualty Company. Defendant appeals the district court’s order granting summary judgment in part to Plaintiff on her action to recover insurance damages from Defendant following her successful state action for wrongful death against her deceased husband’s employers, Defendant’s insureds. Plaintiff cross-appeals the order granting summary judgment in part to Defendant on Plaintiffs request for post-judgment interest. For the reasons that follow, we AFFIRM both orders.

BACKGROUND

Abdulgader Zbedah was employed with TriCoastal Air, Inc. (“TriCoastal”) and Grand Aire Express, Inc. (“Express”) as a pilot. On February 8, 2006, he was piloting a Fairchild Swearingen SA226TC cargo plane from Ohio to Texas and was the plane’s only occupant. The plane developed a mechanical problem and crashed in Tennessee, ultimately killing Zbedah. Following Zbedah’s death, Plaintiff was appointed executor of his estate. Plaintiff filed a wrongful death action against TriCoastal and Express in the Lucas County Court of Common Pleas of Ohio.

TriCoastal and Express alleged that they were insureds of Defendant Houston Casualty Company under Policy Number 013047-014. Defendant initially represented TriCoastal and Express in the Lucas County lawsuit, but it eventually determined that Plaintiffs claim was not covered by its policy, issued a coverage denial letter, and subsequently terminated its representation of TriCoastal and Express. TriCoastal and Express hired independent counsel and jointly agreed to settle with Plaintiff. The settlement stipulated that TriCoastal, Express, and two other Grand Aire affiliates negligently maintained the cargo plane flown by Zbe-dah and that their negligence caused Zbedah’s death. The companies also agreed to confess judgment of $5,278,758.00 in Plaintiffs favor, in exchange for Plaintiffs agreement to enforce judgment only against Defendant. On October 20, 2008, the Lucas County court entered judgment in Plaintiffs favor against TriCoastal and Express for the agreed-upon amount.

Plaintiff, acting as a judgment creditor, brought the present action against Defendant in federal district court on the basis of diversity jurisdiction. Plaintiff sought to enforce the stipulated damages amount against Defendant under Policy Number 013047-014.

The policy period of May 17, 2005 to May 17, 2006 encompasses the date of Zbedah’s accident, February 8, 2006. The “named insureds” listed on the policy are TriCoastal, Grand Aire, Inc., Grand Aire Operations, Inc., Grand Aire Avionics, Inc., the estate of Tahir Cheema (owners of the Grand Aire companies), the officers, directors, and employees of the companies, and any subsidiary companies. 1

The policy provides Coverages A through E and twelve “endorsements” (additional coverage policies). The provision of the policy at issue is Endorsement Four, *511 for “Premises, Products-Completed Operations and Hangarkeepers Liability Coverage.” Section Two of that endorsement provides:

Aviation Products-Completed Operations Liability
This Policy will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury and property damage caused by an occurrence and arising out of the Insured’s aviation operations and/or the possession, use, consumption or handling of any goods or products manufactured, constructed, altered, repaired, serviced, treated, sold, supplied or distributed by the Named Insured or its employees, and then only after such goods or products have ceased to be in the possession or under the control of the Insured.

The limit of liability under Endorsement Four, Section Two is one million dollars, and the endorsement is subject to certain exclusions. The endorsement states:

Exclusions

The coverage provided by this Section [Endorsement Four, Section Two] is subject to the same exclusions as are applicable to Coverages B, C, D, and E of this Policy....

Thus, Endorsement Four, Section Two refers the reader to the policy’s coverage exclusions. 2 The policy’s general “Exclusions” section lists four exclusions that apply to all coverages A through E, which are not pertinent here. The section also offers four coverage-specific exclusions. Relevant to this appeal are two coverage-specific exclusions. Those provide:

This policy does not apply to:

5. Under Coverage B, C, D and E
(a) to liability assumed by the Insured under any contract or agreement, but this exclusion 5.(a) does not apply to the assumption by the Named Insured of the liability of others for bodily injury or property damage in any written hold harmless agreement required by a governmental or military authority as a prerequisite to the use of an airport or an airport facility;
(b) (i) To claims directly or indirectly occasioned by, happening through or in: [sic ] consequence of: (1) noise ..., (2) pollution ..., (3) electrical and electromagnetic interference, (4) interference with the use of property; unless caused by or resulting from a crash, fire, explosion or collision of an aircraft or a recorded in-flight emergency causing abnormal aircraft operation.
(ii) With respect to any provision in the policy concerning any duty of the Company to investigate or defend claims, such provision shall not apply and the Company shall not be required to defend: (1) claims excluded by paragraph (b)(i) above or (2) a claim or claims covered by the policy when combined with any claims excluded by paragraph (b)(i) above (referred to below as “Combined Claims”).
(iii) In respect of any Combined Claims, the Company shall (subject to proof of loss and the limits of the policy) reimburse the Insured for that portion of the following items which may be allocated to a claim or claims covered by the policy: (1) damages awarded against the Insured and (2) defense fees and expenses incurred by the Insured.
*512 (c) To claims in respect of bodily injury or property damage caused by or resulting from the use by the Insured or his agent of all forms of fertilizers, fungicides, defoliants, herbicides, hormone selective weed killers, pesticides, insecticides, and arsenical preparations or compounds or any other forms of chemicals.
6. Under Coverages B, C and D
(a) to any obligation for which the Insured or any carrier as his insurer may be held liable under any worker’s compensation, unemployment compensation or disability benefits law, or under any similar law;

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Bluebook (online)
486 F. App'x 508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benahmed-ex-rel-estate-of-zbedah-v-houston-casualty-co-ca6-2012.