NOT RECOMMENDED FOR PUBLICATION File Name: 17a0694n.06
No. 16-4761
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED LM INSURANCE CORPORATION., et al., ) Dec 19, 2017 ) DEBORAH S. HUNT, Clerk Plaintiffs-Appellees, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE AMANDA CRISS, Administratrix for the estate of ) NORTHERN DISTRICT OF George Szuhay, ) OHIO ) Defendant-Appellant. )
BEFORE: BOGGS, BATCHELDER, and KETHLEDGE, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Defendant-Appellant Amanda Criss,
serving as Adminstratrix for the estate of George Szuhay, appeals the district court’s declaratory
judgment holding that Appellee LM Insurance Corporation (“LM Insurance”), which underwrote
a commercial general-liability insurance policy (the “Insurance Policy”) for non-party Empire
Die Casting Co., Inc. (“Empire”), has no obligation to satisfy a default judgment that Szuhay
obtained against Empire. We affirm.
I.
Non-party Barnett & Brown Personnel Services, Inc., d/b/a Integrity Staffing Services
(“Integrity Staffing”), is a staffing service that “leases” employees to companies. Integrity
Staffing and Empire entered into an agreement (the “Leasing Agreement”) that allowed Empire
to “lease” employees from Integrity Staffing when Empire needed to fill a position in its
company. The Leasing Agreement provided that when Empire wanted to lease an Integrity No. 16-4761, LM Insurance Corp., et al. v. Criss
Staffing employee, it would provide Integrity Staffing a description of the position it sought to
fill, the experience required for the position, and any other relevant job specifications. Integrity
Staffing would then identify candidates in its employ and send materials for those candidates to
Empire. Empire had the option to accept or reject any candidates Integrity Staffing sent, and the
Leasing Agreement did not require Empire to fill a position with an Integrity Staffing employee.
The Leasing Agreement governed the companies’ respective responsibilities to each other
and to leased employees should Empire elect to fill an open position with a leased employee
from Integrity Staffing. Relevant to Szuhay’s arguments before us, the Leasing Agreement
required Empire to “maintain liability insurance coverage covering the acts of [l]eased
[e]mployees to the same extent as it maintain[ed] [liability insurance] coverage with respect to
the acts of [its] direct employees,” and included a reciprocal indemnification clause instructing
that Integrity Staffing and Empire would indemnify and hold harmless one another for any
damages1 arising from their own respective conduct.2
1 The Leasing Agreement defined “[d]amages” as “includ[ing] any claims, actions, demands, losses, costs, expenses, liabilities (joint or several), penalties and damages, including, without limitation, reasonable counsel fees and costs.” 2 The indemnification clause provided in pertinent part: 8. Indemnification (a) [Empire] agrees that it will indemnify and hold [Integrity Staffing] harmless from any and all “Damages” (as hereinafter defined) arising out of or related to (i) claims arising out of a breach of any obligation of [Empire] pursuant to this Agreement, . . . (iv) claims of Leased Employees arising out of conduct of [Empire], such as (but not limited to) wrongful or unjust termination, breach of contract (express or implied), promissory estoppel, negligent or intentional (tortious) conduct, [and] negligent or intentional infliction of emotional distress . . . . [Empire] releases [Integrity Staffing] from any claims or liability to it related to any of the foregoing and agrees not to institute any legal proceedings against [Integrity Staffing] with respect thereto. (b) [Integrity Staffing] agrees that it will indemnify and hold [Empire] harmless from any and all Damages, as defined in Paragraph 8(a) above, arising out of or related to (i) claims arising out of a breach of any obligation of [Integrity Staffing] pursuant to this Agreement, (ii) claims of Leased Employees arising out of the conduct of [Integrity Staffing], such as the conduct described in paragraph 8(a)(iv) above, and (iii) claims from any third party arising out of or related to the conduct of a Leased Employee while the Leased Employee was acting under the direct supervision of [Integrity Staffing] . . . . [Integrity Staffing] releases [Empire] from any claims or liability related to any of the foregoing and agrees not to institute any legal proceedings against [Empire] with respect thereto.
-2- No. 16-4761, LM Insurance Corp., et al. v. Criss
In compliance with the Leasing Agreement’s liability-coverage requirement, Empire
maintained a commercial general-liability insurance policy with Plaintiffs-Appellees LM
Insurance (the “Insurance Policy”).3 The terms of the Insurance Policy obligated LM Insurance
to “pay those sums that the insured becomes legally obligated to pay as damages because of
‘bodily injury’ . . . to which this insurance applies.” An “insured” included Empire, any person
or organization Empire listed as an additional insured, and “any person or organization to whom
[Empire] [is] obligated by a written agreement to procure additional insured coverage, but only
with respect to liability for ‘bodily injury’ . . . caused, in whole or part, by [Empire’s] acts or
omissions or the acts or omissions of those acting on [Empire’s] behalf[] . . . [i]n the
performance of [Empire’s] ongoing operations.”
Of particular importance here, the Insurance Policy specifically excluded coverage for
“‘[b]odily injury’ to[] . . . [a]n ‘employee’ of the insured arising out of and in the course of: (a)
[e]mployment by the insured; or (b) [p]erforming duties related to the conduct of the insured’s
business.” “Employee” included a “leased worker,” defined as “a person leased to [Empire] by a
labor leasing firm under an agreement between [Empire] and the labor leasing firm, to perform
duties related to the conduct of [Empire’s] business.”
II.
At some point Empire communicated to Integrity Staffing that it needed to staff the
position of a machine operator of aluminum-casting machines. Integrity Staffing selected
Szuhay as the candidate and, upon approval from Empire, assigned him to Empire’s aluminum-
casting facility. While Szuhay was operating one of Empire’s aluminum-casting machines,
3 As the district court discussed briefly, the Insurance Policy also required Empire to name Integrity Staffing as an additional insured under the Insurance Policy, which the record suggests Empire did not do. Whether Empire did or did not explicitly name Integrity Staffing as an “additional insured” makes no difference to the resolution of this case.
-3- No. 16-4761, LM Insurance Corp., et al. v. Criss
molten aluminum spilled onto him. Szuhay sustained severe burns and bodily injury. Szuhay
concedes he was a leased employee/leased worker, as defined in the Leasing Agreement and
Insurance Policy.
Following this workplace accident, Szuhay hired an attorney and in October 2011,
brought suit against Empire in the Court of Common Pleas of Summit County, Ohio, claiming
employer intentional-tort and premises liability. After engaging in some discovery, Szuhay
voluntarily dismissed the case in December 2012. A year later, in December 2013, Szuhay
refiled the action against Empire in the Court of Common Pleas, again claiming employer
intentional-tort and premises liability.
During the year between Szuhay’s voluntary dismissal of the case and his refiling it,
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NOT RECOMMENDED FOR PUBLICATION File Name: 17a0694n.06
No. 16-4761
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED LM INSURANCE CORPORATION., et al., ) Dec 19, 2017 ) DEBORAH S. HUNT, Clerk Plaintiffs-Appellees, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE AMANDA CRISS, Administratrix for the estate of ) NORTHERN DISTRICT OF George Szuhay, ) OHIO ) Defendant-Appellant. )
BEFORE: BOGGS, BATCHELDER, and KETHLEDGE, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Defendant-Appellant Amanda Criss,
serving as Adminstratrix for the estate of George Szuhay, appeals the district court’s declaratory
judgment holding that Appellee LM Insurance Corporation (“LM Insurance”), which underwrote
a commercial general-liability insurance policy (the “Insurance Policy”) for non-party Empire
Die Casting Co., Inc. (“Empire”), has no obligation to satisfy a default judgment that Szuhay
obtained against Empire. We affirm.
I.
Non-party Barnett & Brown Personnel Services, Inc., d/b/a Integrity Staffing Services
(“Integrity Staffing”), is a staffing service that “leases” employees to companies. Integrity
Staffing and Empire entered into an agreement (the “Leasing Agreement”) that allowed Empire
to “lease” employees from Integrity Staffing when Empire needed to fill a position in its
company. The Leasing Agreement provided that when Empire wanted to lease an Integrity No. 16-4761, LM Insurance Corp., et al. v. Criss
Staffing employee, it would provide Integrity Staffing a description of the position it sought to
fill, the experience required for the position, and any other relevant job specifications. Integrity
Staffing would then identify candidates in its employ and send materials for those candidates to
Empire. Empire had the option to accept or reject any candidates Integrity Staffing sent, and the
Leasing Agreement did not require Empire to fill a position with an Integrity Staffing employee.
The Leasing Agreement governed the companies’ respective responsibilities to each other
and to leased employees should Empire elect to fill an open position with a leased employee
from Integrity Staffing. Relevant to Szuhay’s arguments before us, the Leasing Agreement
required Empire to “maintain liability insurance coverage covering the acts of [l]eased
[e]mployees to the same extent as it maintain[ed] [liability insurance] coverage with respect to
the acts of [its] direct employees,” and included a reciprocal indemnification clause instructing
that Integrity Staffing and Empire would indemnify and hold harmless one another for any
damages1 arising from their own respective conduct.2
1 The Leasing Agreement defined “[d]amages” as “includ[ing] any claims, actions, demands, losses, costs, expenses, liabilities (joint or several), penalties and damages, including, without limitation, reasonable counsel fees and costs.” 2 The indemnification clause provided in pertinent part: 8. Indemnification (a) [Empire] agrees that it will indemnify and hold [Integrity Staffing] harmless from any and all “Damages” (as hereinafter defined) arising out of or related to (i) claims arising out of a breach of any obligation of [Empire] pursuant to this Agreement, . . . (iv) claims of Leased Employees arising out of conduct of [Empire], such as (but not limited to) wrongful or unjust termination, breach of contract (express or implied), promissory estoppel, negligent or intentional (tortious) conduct, [and] negligent or intentional infliction of emotional distress . . . . [Empire] releases [Integrity Staffing] from any claims or liability to it related to any of the foregoing and agrees not to institute any legal proceedings against [Integrity Staffing] with respect thereto. (b) [Integrity Staffing] agrees that it will indemnify and hold [Empire] harmless from any and all Damages, as defined in Paragraph 8(a) above, arising out of or related to (i) claims arising out of a breach of any obligation of [Integrity Staffing] pursuant to this Agreement, (ii) claims of Leased Employees arising out of the conduct of [Integrity Staffing], such as the conduct described in paragraph 8(a)(iv) above, and (iii) claims from any third party arising out of or related to the conduct of a Leased Employee while the Leased Employee was acting under the direct supervision of [Integrity Staffing] . . . . [Integrity Staffing] releases [Empire] from any claims or liability related to any of the foregoing and agrees not to institute any legal proceedings against [Empire] with respect thereto.
-2- No. 16-4761, LM Insurance Corp., et al. v. Criss
In compliance with the Leasing Agreement’s liability-coverage requirement, Empire
maintained a commercial general-liability insurance policy with Plaintiffs-Appellees LM
Insurance (the “Insurance Policy”).3 The terms of the Insurance Policy obligated LM Insurance
to “pay those sums that the insured becomes legally obligated to pay as damages because of
‘bodily injury’ . . . to which this insurance applies.” An “insured” included Empire, any person
or organization Empire listed as an additional insured, and “any person or organization to whom
[Empire] [is] obligated by a written agreement to procure additional insured coverage, but only
with respect to liability for ‘bodily injury’ . . . caused, in whole or part, by [Empire’s] acts or
omissions or the acts or omissions of those acting on [Empire’s] behalf[] . . . [i]n the
performance of [Empire’s] ongoing operations.”
Of particular importance here, the Insurance Policy specifically excluded coverage for
“‘[b]odily injury’ to[] . . . [a]n ‘employee’ of the insured arising out of and in the course of: (a)
[e]mployment by the insured; or (b) [p]erforming duties related to the conduct of the insured’s
business.” “Employee” included a “leased worker,” defined as “a person leased to [Empire] by a
labor leasing firm under an agreement between [Empire] and the labor leasing firm, to perform
duties related to the conduct of [Empire’s] business.”
II.
At some point Empire communicated to Integrity Staffing that it needed to staff the
position of a machine operator of aluminum-casting machines. Integrity Staffing selected
Szuhay as the candidate and, upon approval from Empire, assigned him to Empire’s aluminum-
casting facility. While Szuhay was operating one of Empire’s aluminum-casting machines,
3 As the district court discussed briefly, the Insurance Policy also required Empire to name Integrity Staffing as an additional insured under the Insurance Policy, which the record suggests Empire did not do. Whether Empire did or did not explicitly name Integrity Staffing as an “additional insured” makes no difference to the resolution of this case.
-3- No. 16-4761, LM Insurance Corp., et al. v. Criss
molten aluminum spilled onto him. Szuhay sustained severe burns and bodily injury. Szuhay
concedes he was a leased employee/leased worker, as defined in the Leasing Agreement and
Insurance Policy.
Following this workplace accident, Szuhay hired an attorney and in October 2011,
brought suit against Empire in the Court of Common Pleas of Summit County, Ohio, claiming
employer intentional-tort and premises liability. After engaging in some discovery, Szuhay
voluntarily dismissed the case in December 2012. A year later, in December 2013, Szuhay
refiled the action against Empire in the Court of Common Pleas, again claiming employer
intentional-tort and premises liability.
During the year between Szuhay’s voluntary dismissal of the case and his refiling it,
Empire petitioned for Chapter 11 bankruptcy. See In re E.D.C. Liquidating, Inc. (f/k/a Empire
Die Casting Co., Inc.), No. 6:14-bk-61086 (Bankr. N.D. Ohio) (filed October 2013). Because of
the pending bankruptcy proceedings, Empire filed in the Court of Common Pleas a notice of
suggestion of automatic stay. The Court of Common Pleas granted the motion and the automatic
stay commenced.
Szuhay filed a motion in the bankruptcy court asking that it lift the automatic stay and
allow the case before the Court of Common Pleas to proceed. The bankruptcy court granted the
motion and lifted the stay. However, the bankruptcy court limited Szuhay’s ability to recover
against Empire “to [Empire’s] insurance policies covering losses, if any, incurred by [Szuhay]
pursuant to the terms of said policies.”
With the stay lifted, Szuhay resumed the litigation in the Court of Common Pleas and
filed a motion for default judgment against Empire for failing to answer or to otherwise defend
-4- No. 16-4761, LM Insurance Corp., et al. v. Criss
the action. The Court of Common Pleas granted the motion and entered default judgment against
Empire.
After holding a hearing on damages, the Court of Common Pleas awarded Szuhay
$696,937.09 for lost wages, medical bills, and non-economic damages against Empire. Because
the bankruptcy court limited Szuhay’s means of collecting a judgment against Empire solely to
Empire’s insurance policies, Szuhay sought to collect payment from Plaintiff-Appellee LM
Insurance under the Insurance Policy. LM Insurance refused to pay on the ground that the
Insurance Policy did not cover Szuhay’s claims for bodily injury.
LM Insurance then initiated the litigation underlying this appeal, filing a complaint in the
United States District Court for the Northern District of Ohio requesting a declaratory judgment
that LM Insurance was not responsible for paying the default judgment entered by the Court of
Common Pleas against Empire. Szuhay filed an answer and a counterclaim for a declaratory
judgment that he may recover from LM Insurance, and asserting bad faith. LM Insurance filed a
motion for judgment on the pleadings, which Szuhay opposed. The district court granted the
motion for judgment on the pleadings, entered a declaratory judgment for LM Insurance that it is
not responsible for payment of the judgment Szuhay obtained against Empire, and dismissed
Szuhay’s counterclaims with prejudice. We affirm.
III.
We review the district court’s grant of judgment on the pleadings under Fed. R. Civ. P.
12(c), applying the same de novo standard of review applicable to orders of dismissal under Rule
12(b)(6). Poplar Creek Dev. Co. v. Chesapeake Appalachia, LLC, 636 F.3d 235, 240 (6th Cir.
2011). “[A]ll well-pleaded material allegations of the pleadings of the opposing party must be
taken as true, and the motion may be granted only if the moving party is nevertheless clearly
-5- No. 16-4761, LM Insurance Corp., et al. v. Criss
entitled to judgment.” Id. (citation omitted); see also Coyer v. HSBC Mortg. Servs., Inc.,
701 F.3d 1104, 1107-08 (6th Cir. 2012). A complaint need not contain “detailed factual
allegations.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). But it must “contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation omitted).
The parties agree that Ohio law governs the matter in dispute. Under Ohio law, “[a]n
insurance policy is a contract.” Westfield Ins. Co. v. Galatis, 797 N.E.2d 1256, 1261 (Ohio
2003). “When confronted with an issue of contract interpretation, the role of a court is to give
effect to the intent of the parties to the agreement.” Id. Courts should “examine the insurance
contract as a whole and presume that the intent of the parties is reflected in the language used in
the policy.” Id. “When the language of a written contract is clear, a court may look no further
than the writing itself to find the intent of the parties.” Id. “As a matter of law, a contract is
unambiguous if it can be given a definite legal meaning.” Id.
Szuhay seeks payment under the Insurance Policy of a judgment against Empire for an
injury that “ar[ose] out of and in the course of” his employment as a “leased employee/leased
worker” with Empire. That kind of injury is specifically excluded from coverage under the
Insurance Policy. This Insurance Policy is not an employers’ liability policy or a worker’s
compensation policy; rather, it is a commercial general-liability policy, and “[u]nlike worker's
compensation insurance or employers’ liability insurance, which exist to provide employers with
coverage for injuries that occur to employees during the scope of employment, the sole purpose
of commercial general liability insurance is to provide coverage for injuries that occur to the
public-at-large.” W. World Ins. Co. v. Hoey, 773 F.3d 755, 763 (6th Cir. 2014) (quoting
Amerisure Ins. Co. v. Orange & Blue Const., Inc., 545 F. App’x 851, 855 (11th Cir. 2013). The
-6- No. 16-4761, LM Insurance Corp., et al. v. Criss
judgment, therefore, is not for a “sum[] that [Empire is] legally obligated to pay as damages
because of ‘bodily injury’ . . . to which this insurance applies.” As we have already noted, the
Lease Agreement obligated Empire to maintain liability-insurance coverage for the acts of leased
employees to the same extent as it maintained liability-insurance coverage for the acts of its
direct employees. Empire did just that. The Insurance Policy is a commercial general-liability
policy that covers the acts of employees causing injury to the public, and specifically excludes
the kind of bodily injury at issue here if suffered by a direct employee of Empire.
Szuhay’s argument that Integrity Staffing is an “additional insured” under the Insurance
Policy makes no difference to the resolution of this case.4 Szuhay has at no point asserted any
claims against Integrity Staffing or obtained a judgment of liability against it.5 The only
justiciable controversy before this panel is whether the Insurance Policy covers the judgment
against Empire. It plainly does not.
IV.
The district court did not err by granting declaratory judgment for LM Insurance that it
has no obligation under the Insurance Policy to satisfy a default judgment secured against
insured non-party Empire. We AFFIRM.
4 Before the district court Szuhay also asserted that the Leasing Agreement, specifically its indemnification clause, created an “insured contract” that obligated LM Insurance to pay for his bodily injury. Szuhay has waived this line of argument on appeal. 5 In any event, the Insurance Policy specifically excludes the injury for which the judgment was awarded.
-7-