George's Inc. v. Allianz Global Risks U.S. Insurance

596 F.3d 989, 2010 WL 772083
CourtCourt of Appeals for the Eighth Circuit
DecidedMarch 9, 2010
Docket09-2220, 09-2248
StatusPublished
Cited by1 cases

This text of 596 F.3d 989 (George's Inc. v. Allianz Global Risks U.S. Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
George's Inc. v. Allianz Global Risks U.S. Insurance, 596 F.3d 989, 2010 WL 772083 (8th Cir. 2010).

Opinion

WOLLMAN, Circuit Judge.

George’s Inc. brought this diversity lawsuit against its insurer, Allianz Global Risks U.S. Insurance Co., arguing that Allianz failed to indemnify George’s for business expenses and personal property losses as required under the terms of its insurance policy. The district court denied Allianz’s motion for summary judgment on the contested business expenses and granted summary judgment for Allianz on George’s personal property claims. Both parties appealed. Because we conclude that the policy unambiguously excludes coverage for both claimed losses, we reverse the district court’s denial of summary judgment on the business expenses claim and affirm the grant of summary judgment on the personal property claim.

I.

George’s, a poultry processing company with facilities in Cassville, Missouri, has both property insurance and business interruption insurance through Allianz.’ In January and March 2007, ice storms caused a break in electrical service to George’s Cassville plant, which disrupted production and resulted in a loss of -business income. The power outage also led to the premature deaths of a number of chickens that were stored in a holding shed before processing. George’s filed a claim under the policy, and Allianz conceded liability for lost business income and extra expenses totaling $309,676, minus the deductible.

At issue in this appeal is George’s claim for $154,984 of business expenses in the form of fixed labor and overhead costs, and $29,989 in personal property losses from the chickens that perished in its holding shed. According to George’s, the labor and overhead costs are recoverable under the “extra expense” portion of the policy. George’s undisputed accounting records show that as a result of the business disruption, its cost-per-pound of chicken increased from $.0457 per pound to $.0527— that is, the company produced less chicken relative to its fixed costs. George’s derived the figure of $154,984 by multiplying its increased cost-per-pound by the number of pounds that it produced during the coverage period. It argued that those costs were recoverable under the following provision:

EXTRA EXPENSE
1) Measurement of Loss:
The recoverable EXTRA EXPENSE loss will be the reasonable and necessary extra costs incurred by the Insured of the following during the PERIOD OF LIABILITY:
a) Extra expenses to temporarily continue as nearly normal as practicable the conduct of the Insured’s business; and
b) Extra costs of temporarily using property or facilities of the Insured or others, less any value remaining at the *992 end of the PERIOD OF LIABILITY for property obtained in connection with the above.
2) EXTRA EXPENSE Exclusions. As respects EXTRA EXPENSE, the following are also excluded:
a) Any loss of income.
b) Costs that normally would have been incurred in conducting the business during the same period had no direct physical loss or damage occurred.

The district court concluded that because George’s utilizes a cost-per-pound accounting system, an ambiguity existed regarding whether the extra expense provision covered an increase in cost-per-pound. It therefore denied Allianz’s partial motion for summary judgment on George’s claim for business expenses.

George’s also maintained that the personal property provisions of the policy covered its lost chickens. The parties disagreed, however, about the effect of the following two exclusions to the personal property coverage:

C. animals, standing timber, growing crops.
O. stock or materials when loss is caused by manufacturing or processing operations which result in damage to such property while being processed, manufactured, tested or otherwise being worked upon (work in progress).

Allianz contended that the exclusion of animals — expanded in a later exclusion endorsement to “animals (including eggs)”— unambiguously excluded live chickens from coverage. The district court agreed with this interpretation and granted Allianz’s partial motion for summary judgment on the claim for the chickens that perished prior to processing.

II.

We review the district court’s summary judgment rulings de novo, viewing the evidence in the light most favorable to the nonmoving party. Source Food Tech., Inc. v. U.S. Fid. & Guar. Co., 465 F.3d 834, 836 (8th Cir.2006). The parties agree this case is governed by Arkansas law.

Interpretation of an insurance policy is ordinarily treated as a legal question by Arkansas courts. See Elam v. First Unum Life Ins. Co., 346 Ark. 291, 57 S.W.3d 165, 169 (2001). When the language of the policy is unambiguous, courts will follow the plain meaning of the policy without resorting to rules of construction. Id. If an ambiguity exists, the policy is construed in favor of the insured and against the insurer. Smith v. Prudential Prop. & Cas. Ins. Co., 340 Ark. 335, 10 S.W.3d 846, 850 (2000). This rule of construction, however, should not be used to make an insurer liable where the plain language of the insurance contract denies coverage. Smith v. S. Farm Bureau Cas. Ins. Co., 353 Ark. 188, 114 S.W.3d 205, 206 (2003). Rather, an insurance policy should be construed in its plain, ordinary, and popular sense, and if possible the various clauses of the contract must be read together, so as to harmonize all of the provisions. Id. at 206-07.

A.

We turn first to George’s argument that it is entitled to recover as extra expenses the $154,984 in fixed labor and overhead costs. As discussed above, George’s does not dispute that it would have had to pay these labor and overhead costs irrespective of the plant shutdown. Instead, it contends that it experienced an increase in cost-per-pound because the business disruption caused it to process less chicken relative to its fixed expenses. Allianz argues that these fixed expenses fit squarely within the extra expense provision’s exclusion of “[c]osts that normally would have been incurred in conducting *993 the business during the same period had no direct physical loss or damage occurred.” We agree.

A straightforward reading of the policy language makes it clear that the extra expense provision was intended to cover unanticipated outlays related to a business disruption. Fixed labor and overhead costs do not fit that description.

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Bluebook (online)
596 F.3d 989, 2010 WL 772083, Counsel Stack Legal Research, https://law.counselstack.com/opinion/georges-inc-v-allianz-global-risks-us-insurance-ca8-2010.