UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 18-1914
OLD WHITE CHARITIES, INC.,
Plaintiff - Appellant,
v.
BANKERS INSURANCE, LLC,
Defendant - Appellee.
Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Irene C. Berger, District Judge. (5:17-cv-01375)
Submitted: December 17, 2019 Decided: January 21, 2020
Before GREGORY, Chief Judge, THACKER, Circuit Judge, and SHEDD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Richard A. Getty, GETTY LAW GROUP, PLLC, Lexington, Kentucky, for Appellant. Stuart A. McMillan, Fazal A. Shere, Patrick C. Timony, BOWLES RICE LLP, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Old White Charities, Inc., (“Old White”) appeals the district court order denying its
motion for partial summary judgment, granting Bankers Insurance, LLC’s (“Bankers”)
motion for summary judgment, and denying Old White’s motion for leave to file
supplemental briefing on the summary judgment motions. We affirm.
In July 2015, Old White hosted and sponsored the annual Greenbrier Classic golf
tournament, which was part of the Professional Golfers’ Association (“PGA”) tour. During
the tournament, Old White ran a promotional contest wherein, if a golfer shot a hole-in-
one on the 18th hole, all spectators present in the grandstands at that hole would receive a
cash prize paid by Old White. Old White engaged Bankers to secure an insurance policy
indemnifying Old White against any payout made pursuant to the contest.
The application for the insurance policy, which Bankers completed on Old White’s
behalf, contained a warranty clause stating that the hole had to be at least 150 yards in
distance for any hole-in-one to be covered by the policy. Bankers also included an
addendum to the application stating that the 18th hole played an average of 175 yards, but
that Old White had no knowledge of or control over the length of the hole on any given
day of the tournament because the PGA determined the placement of the tee boxes and the
pins. A representative of Old White read and signed the application, and the policy
ultimately contained a provision stating that, for a hole-in-one to be covered, the hole had
to be at least 170 yards long.
During the tournament, two golfers shot holes-in-one on the 18th hole from a
distance of 137 yards. After Old White submitted claims for indemnification under the
2 policy, the insurer filed suit in district court seeking a declaratory judgment that Old White
was not entitled to coverage because the holes-in-one did not comply with the distance
requirement. See Talbot 2002 Underwriting Capital Ltd v. Old White Charities, Inc., No.
5:15-CV-12542, 2017 WL 73937, at *1 (S.D.W. Va. Jan. 6, 2017). Bankers intervened as
a defendant in that case, and Old White and Bankers filed counterclaims against the insurer.
Id. at *2. The district court entered a declaratory judgment in favor of the insurer, holding
that Old White was not entitled to coverage because the distance warranty in the policy
application was clear and unambiguous, the addendum did not contradict the distance
warranty, and Old White had no reasonable expectation of coverage. Id. at *4-8. We
affirmed the district court’s judgment. All Risks, Ltd v. Old White Charities, Inc., 715 F.
App’x 274, 275 (4th Cir. 2017) (No. 17-1180).
Old White has now asserted state law claims of negligence, reasonable expectations,
and fraud against Bankers and challenges on appeal the district court’s grant of summary
judgment to Bankers on each of these claims. “We review a district court’s decision to
grant summary judgment de novo, applying the same legal standards as the district court,
and viewing all facts and reasonable inferences therefrom in the light most favorable to the
nonmoving party.” Carter v. Fleming, 879 F.3d 132, 139 (4th Cir. 2018) (internal
quotation marks omitted). Summary judgment is appropriate “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). “[T]he pertinent inquiry is whether there are
any genuine factual issues that properly can be resolved only by a finder of fact because
3 they may reasonably be resolved in favor of either party.” Variety Stores, Inc. v. Wal-Mart
Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018) (internal quotation marks omitted).
“To prevail in a negligence suit, the plaintiff must prove by a preponderance of the
evidence that the defendant owed a legal duty to the plaintiff and that by breaching that
duty the defendant proximately caused the injuries of the plaintiff.” Neely v. Belk Inc., 668
S.E.2d 189, 197 (W. Va. 2008). “It is well established that an insurance professional owes
a duty to his principal to exercise reasonable skill, care and diligence in effecting
insurance.” Knapp v. Am. Gen. Fin. Inc., 111 F. Supp. 2d 758, 766 (S.D.W. Va. 2000)
(citations omitted). In order to establish a claim for negligence, a plaintiff must
demonstrate “by a preponderance of the evidence that the defendant was negligent and that
such negligence was the proximate cause of the injury.” Spencer v. McClure, 618 S.E.2d
451, 455 (W. Va. 2005) (per curiam) (internal quotation marks omitted). “The proximate
cause of an injury is the last negligent act contributing to the injury and without which the
injury would not have occurred.” Id. (internal quotation marks omitted).
We have reviewed the record and conclude that the district court correctly
determined that Old White failed to establish the elements of duty and proximate causation.
The district court therefore properly granted summary judgment in favor of Bankers on
Old White’s negligence claim.
With respect to Old White’s claim for damages under the doctrine of reasonable
expectation, “the objectively reasonable expectations of applicants and intended
beneficiaries regarding the terms of insurance contracts will be honored even though
painstaking study of the policy provisions would have negated those expectations.” State
4 ex rel. Universal Underwriters Ins. Co. v. Wilson, 825 S.E.2d 95, 100 (W. Va. 2019)
(internal quotation marks omitted). This doctrine applies only when the terms of the
insurance contract are ambiguous. Id. “Thus, where the provisions of an insurance policy
contract are clear and unambiguous they are not subject to judicial construction or
interpretation, but full effect will be given to the plain meaning intended.” Id. (alteration
and internal quotation marks omitted).
We agree with the district court that the distance warranty in the application was
clear and unambiguous, and that the addendum did not contradict or otherwise negate the
distance warranty. Because the contract was clear and unambiguous regarding a distance
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 18-1914
OLD WHITE CHARITIES, INC.,
Plaintiff - Appellant,
v.
BANKERS INSURANCE, LLC,
Defendant - Appellee.
Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Irene C. Berger, District Judge. (5:17-cv-01375)
Submitted: December 17, 2019 Decided: January 21, 2020
Before GREGORY, Chief Judge, THACKER, Circuit Judge, and SHEDD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Richard A. Getty, GETTY LAW GROUP, PLLC, Lexington, Kentucky, for Appellant. Stuart A. McMillan, Fazal A. Shere, Patrick C. Timony, BOWLES RICE LLP, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Old White Charities, Inc., (“Old White”) appeals the district court order denying its
motion for partial summary judgment, granting Bankers Insurance, LLC’s (“Bankers”)
motion for summary judgment, and denying Old White’s motion for leave to file
supplemental briefing on the summary judgment motions. We affirm.
In July 2015, Old White hosted and sponsored the annual Greenbrier Classic golf
tournament, which was part of the Professional Golfers’ Association (“PGA”) tour. During
the tournament, Old White ran a promotional contest wherein, if a golfer shot a hole-in-
one on the 18th hole, all spectators present in the grandstands at that hole would receive a
cash prize paid by Old White. Old White engaged Bankers to secure an insurance policy
indemnifying Old White against any payout made pursuant to the contest.
The application for the insurance policy, which Bankers completed on Old White’s
behalf, contained a warranty clause stating that the hole had to be at least 150 yards in
distance for any hole-in-one to be covered by the policy. Bankers also included an
addendum to the application stating that the 18th hole played an average of 175 yards, but
that Old White had no knowledge of or control over the length of the hole on any given
day of the tournament because the PGA determined the placement of the tee boxes and the
pins. A representative of Old White read and signed the application, and the policy
ultimately contained a provision stating that, for a hole-in-one to be covered, the hole had
to be at least 170 yards long.
During the tournament, two golfers shot holes-in-one on the 18th hole from a
distance of 137 yards. After Old White submitted claims for indemnification under the
2 policy, the insurer filed suit in district court seeking a declaratory judgment that Old White
was not entitled to coverage because the holes-in-one did not comply with the distance
requirement. See Talbot 2002 Underwriting Capital Ltd v. Old White Charities, Inc., No.
5:15-CV-12542, 2017 WL 73937, at *1 (S.D.W. Va. Jan. 6, 2017). Bankers intervened as
a defendant in that case, and Old White and Bankers filed counterclaims against the insurer.
Id. at *2. The district court entered a declaratory judgment in favor of the insurer, holding
that Old White was not entitled to coverage because the distance warranty in the policy
application was clear and unambiguous, the addendum did not contradict the distance
warranty, and Old White had no reasonable expectation of coverage. Id. at *4-8. We
affirmed the district court’s judgment. All Risks, Ltd v. Old White Charities, Inc., 715 F.
App’x 274, 275 (4th Cir. 2017) (No. 17-1180).
Old White has now asserted state law claims of negligence, reasonable expectations,
and fraud against Bankers and challenges on appeal the district court’s grant of summary
judgment to Bankers on each of these claims. “We review a district court’s decision to
grant summary judgment de novo, applying the same legal standards as the district court,
and viewing all facts and reasonable inferences therefrom in the light most favorable to the
nonmoving party.” Carter v. Fleming, 879 F.3d 132, 139 (4th Cir. 2018) (internal
quotation marks omitted). Summary judgment is appropriate “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). “[T]he pertinent inquiry is whether there are
any genuine factual issues that properly can be resolved only by a finder of fact because
3 they may reasonably be resolved in favor of either party.” Variety Stores, Inc. v. Wal-Mart
Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018) (internal quotation marks omitted).
“To prevail in a negligence suit, the plaintiff must prove by a preponderance of the
evidence that the defendant owed a legal duty to the plaintiff and that by breaching that
duty the defendant proximately caused the injuries of the plaintiff.” Neely v. Belk Inc., 668
S.E.2d 189, 197 (W. Va. 2008). “It is well established that an insurance professional owes
a duty to his principal to exercise reasonable skill, care and diligence in effecting
insurance.” Knapp v. Am. Gen. Fin. Inc., 111 F. Supp. 2d 758, 766 (S.D.W. Va. 2000)
(citations omitted). In order to establish a claim for negligence, a plaintiff must
demonstrate “by a preponderance of the evidence that the defendant was negligent and that
such negligence was the proximate cause of the injury.” Spencer v. McClure, 618 S.E.2d
451, 455 (W. Va. 2005) (per curiam) (internal quotation marks omitted). “The proximate
cause of an injury is the last negligent act contributing to the injury and without which the
injury would not have occurred.” Id. (internal quotation marks omitted).
We have reviewed the record and conclude that the district court correctly
determined that Old White failed to establish the elements of duty and proximate causation.
The district court therefore properly granted summary judgment in favor of Bankers on
Old White’s negligence claim.
With respect to Old White’s claim for damages under the doctrine of reasonable
expectation, “the objectively reasonable expectations of applicants and intended
beneficiaries regarding the terms of insurance contracts will be honored even though
painstaking study of the policy provisions would have negated those expectations.” State
4 ex rel. Universal Underwriters Ins. Co. v. Wilson, 825 S.E.2d 95, 100 (W. Va. 2019)
(internal quotation marks omitted). This doctrine applies only when the terms of the
insurance contract are ambiguous. Id. “Thus, where the provisions of an insurance policy
contract are clear and unambiguous they are not subject to judicial construction or
interpretation, but full effect will be given to the plain meaning intended.” Id. (alteration
and internal quotation marks omitted).
We agree with the district court that the distance warranty in the application was
clear and unambiguous, and that the addendum did not contradict or otherwise negate the
distance warranty. Because the contract was clear and unambiguous regarding a distance
requirement of 150 yards, Old White failed as a matter of law to establish an objectively
reasonable belief that a hole-in-one would be covered by the policy even if the hole was
less than 150 yards in length. The district court therefore correctly determined that Old
White could not recover under the doctrine of reasonable expectation.
With respect to Old White’s claim for fraud or misrepresentation, under West
Virginia law, to demonstrate fraud, a plaintiff must establish (1) that the fraudulent act was
that of the defendant, (2) that it was material and the plaintiff reasonably relied on it, and
(3) damages resulting from that reliance. Folio v. City of Clarksburg, 655 S.E.2d 143, 150
(W. Va. 2007) (per curiam). In addition, an action for negligent misrepresentation may lie
when “[o]ne under a duty to give information to another [] makes an erroneous statement
when he has no knowledge on the subject, and thereby misleads the other to his injury.”
Id. at 151. We agree with the district court that Old White failed to establish a claim for
fraud or misrepresentation against Bankers.
5 Finally, Old White challenges the district court’s denial of its motion to submit
supplemental briefing on the summary judgment motions to account for new deposition
testimony by Bankers’ representatives that contradicted their testimonies in previous
depositions. We have reviewed the record and conclude that the new testimony does not
give rise to any disputes of material fact. The district court therefore did not err in denying
Old White leave to file supplemental briefs.
We therefore affirm the district court’s judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED