*1 Avilа, per- This his DGL. velopment record, minimum, at a on the
spective genuine of a issue the existence
shows differently Bryan was treated counterparts. For these
than his white
reasons, respectfully I dissent. CO., INSURANCE
TIG SPECIALTY Defendant-
Plaintiff-Counter
Appellee,
v. INC.;
PINKMONKEY.COM Defendants, al.,
et Lee; Chee; Chee; Bailey Art
Winsome Altheyab; Lee;
Franc Khalid Humond Claimants-Appellants. al.,
et Counter
No. 03-20848. Appeals,
United States Court
Fifth Circuit.
July *2 GARZA, Judge:
EMILIO M. Circuit Chee, Chee, Lee, Bailey Art Winsome Altheyab Franc Lee and Khalid Humond (“the parties”) appeal from the dis- *3 entry summary judgment trict court’s (“TIG”). Specialty Insurance favor TIG In coverage dispute, this insurance TIG declaratory asking filed a action the dis- trict court to declare that it is not liable for judgments against state court PinkMon- key.com (“PinkMonkey” Compa- or “the officer, ny”), former chief executive its PinkMonkey and a securi- Patrick dealer, Kim, arising from their ties John parties; lawsuit with the Chee or the Chee Pink- parties’ specified sеttlement with Monkey Finding officers or directors. correctly granted the district court TIG, summary judgment in favor of we affirm.
I A study PinkMonkey literature provides through an internet website. Greene aids in PinkMon- largest shareholder was the chairman, and its chief executive key, its events at issue. during officer Pink- representing dealer was a securities Monkey. The other officers and directors A. Ruberry, Jeffrey Edward Francis at are Dennis involved in the events issue Schumann, Goldwater, Perry Mi- Bryan G. Ison, McIntosh, D. Donald Rigas, Keith Ruberry (argued), Bollinger, chael Shorris (collec- Joseph, Harry White Moses IL, Specialty TIG Garvey, Chicago, & officers/directors”). tively “other Ins. Co. in PinkMon- investors parties werе (argued), Cook Schlan- Julia Anderson key. Houston, TX, Mills, Silver, Mayer & ger, a Director and TIG issued Claimants-Appellants. for Counter (“Insur- Liability insurance Officer August Policy”) effective from
ance 23, 2000, a with ret- through August 24, 1997. Section April date of roactive insur- Policy provides BARKSDALE, I.A of the Insurance EMILIO M. Before of claims PICKERING, coverage for “Insureds” ance Circuit GARZA Acts” “Wrongful them based on Judges. of, they Specifically any committed. transaction allegedly involving, out § that: provides relating I.A or to the sale of securities. on behalf of each pay shall In- [TIG] Policy The Insurance also included for which the Insured is sured all Loss § Personal Profit Exclusion in III.L ex- not indemnified cluding coverage “any [against Claim legally obligated to the Insured becomes from, upon, arising based Insured] pay Claim first made because in consequence of an Insured Wrongful for a against the Insured any personal in fact profit, remu- committed, attempted allegedly
Act neration, to which In- such attempted by In- committed or Thus, sured entitled.” *4 sured. Policy explicitly while the Insurance cov- ered Compa- securities claims Policy of the Insurance also Section I.C1 Insureds, ny and coverage excluded a “Securities Claims Endorse- included claims from an Insured ment,” provides insurance personal profit to which such PinkMonkey all for for securities claims Insured was not legally entitled. specifically pro- it. Section I.C vides that: pay Compa- on of the B shall behalf
[TIG] ny Company all Loss for which the be- parties The Chee filed Texas state obligated pay to comes because court action in July claiming that Kim any first Securities Claim made and Greene solicited them to invest Company during Policy PinkMonkey and made misrep- numerous or, during Period if exercised Ex- resentations Specif- about the investment. Period, any Reporting tended Secu- (1) ically, parties the Chee asserted that arising out of a Company rities Claim Kim and falsely promised Greene Wrongful Act or attempted committed thirty percent of the PinkMonkey stock by Policy after the Retro- they bought registered would be under active Date as in Item 7 shown of the (2) laws; federal securities Kim and Declarations. falsely Greene referred to PinkMonkey as II.K,2 § Policy, The Insurance defines (3) investment;” a “no risk good and a securities claim as: falsely and Greene claimed that PinkMon- claim made key
[A]
Insured or
was scheduled to distribute shares of
Company alleging
a violation of the
stock it held in Houston Interweb Design
1933,
Inc.,
Securities Act of
the Securities
and that
parties
the Chee
would re-
Exchange
any
Act
reg-
rules or
ceive five shares of Houston Interweb for
ulations of the Securities and Exchange
every one
PinkMonkey
hundred shares of
thereunder;
adopted
they
Commission
simi-
purchased. The
parties alleged
Chee
federal,
lar
foreign
state or
statutes
Sky Act,
violations of the Texas Blue
Tex.
securities;
regulating
any
581-33(A),
and
rules or Rev.Civ. Stat.
art.
including
regulations
any
foreign juris-
state or
person liability;
control
violations of the
diction,
law,
relating
Act,
common
to Texas Deceptive Trade
Practices
Tex.
1. Section C was added
to
Insurance Poli-
2. Section K was added to the Insurance Poli-
cy by
cy by
an Endorsement for Securities Claims
an Endorsement for Securities Claims
inception
inception
was effective at the
of the In-
that was effective at the
of the In-
Policy.
Policy.
surance
surance
Kim,
27.01;
PinkMonkey,
and the
offi-
negligent
other
art.
and
&Bus. Com.Code
were excluded
those
because
eers/directors
misrepresentation.
upon
claims were based
the claims
four of
settled with
Parties
The Chee
Greene.
to trial.
prior
the other directors/officers
default-
other
One
directors/officers
II
to trial
parties went
The Chee
ed.
parties appeal
district
Greene,
Kim. The state
PinkMonkey,
and
(1)
contending that
court’s order
Greene
in favor
judgment
in a
resulted
court trial
profit,
gain
personal
did not
jury found that
parties.
of the Chee
remuneration,
to which he
partiеs
to the Chee
PinkMonkey sold stock
(2)
entitled;
if
and
even the
was
mate-
untrue statement of
of an
by means
to
personal profit
applies
exclusion
a material
to state
or an omission
rial fact
or the
it does not
fact; PinkMonkey
materially aided
defendants.
other director/officer
Kim; Greene, Kim,
Pink-
Greene
grant of
We review the district court’s
misrepresenta-
negligent
Monkey
novo, considering
de
summary judgment
parties;
tions
the Chee
*5
light
in a
favorable to the
all evidence
most
against the
fraud
and Greene committed
Greenberg v.
non-movant.
Crossroads
from
benefitted
parties; and Greene
Chee
(5th Cir.2004).
657,
Sys., Inc. 364 F.3d
661
promise.
representаtion
his false
be
Summary judgment will
affirmed
from
Kim did not
jury
benefit
where,
review,
is
independent
after
there
im-
judgment
court
actions. The state
his
genuine
no
issue of material
damages,
actual
liability for
posed
a
judgment
movant
is entitled to a
par-
and costs
awarded fees
Summary judgment
Id.
matter of law.
ties.
may
supported
affirmed on
basis
be
In-
claimed
The defendants
under
Enters.,
v.
S&W
L.L.C.
the record. See
TIG
Policy in the state court.
surance
Ala.,
F.3d
Bank
315
SouthTrust
NA
of
rights, and
a
responded with reservation
Cir.2003).
(5th
533,
this
Because
537-38
Pink-
coverage claims of
then
denied
diversity
through
us
case
before
comes
Kim, Greene,
di-
and two
Monkey,
Erie
jurisdiction,
apply Texas law.
we
See
prior to
TIG
settled
trial.
rectors who
64, 78-79,
U.S.
Tompkins,
R.R. Co. v.
304
in the dis-
declaratory action
then filed a
(1938).
817,
A majori This court has found that a ty startup shareholder a small company In the parties district court the Chee that, gains personal advantage from a sizeable claimed section I.A the Insurance capital investment in company because Policy provides coverage for the claims gives the majority shareholder op the individual officers and di- *6 portunity to become the owner of a suc rectors and that section I.C covers their cessful business. See Jarvis Christian against PinkMonkey. claims The district College Co., v. Nat'l Union Fire Ins. court, however, ruled that the Personal 742, (5th Cir.1999). Here, F.3d Profit Exclusion bars under both majority Greene was the shareholder in provision I.A and I.C because Greene had PinkMonkey, a small startup only with gained in fact a personal profit or advan- four employees operated that ga out of a tage legally to which he was not entitled. rage. Greene was also the chairman and appeal, parties On the Chee contend that chief of PinkMonkey. executive As in Jar personally profit Greene did not from his vis, gained Greene a personal advantage misrepresentation ruling and that that he from opportunity to partici own and personally profited meaning within the pate in a successful business when Pink- the Personal Profit Exclusion would evis- Monkey was infused with capital as a re cerate the Securities Claims Endorsement. sult of his fraud. the Personal Profit Exclusion For Greene, apply to to parties’ the Chee A defendant legally is not entitled from, upon, claims must be based arising to an advantage profit or resulting from (1) or in consequence of his: gained his violation of law if he required could be in any personal profit, remuneration, fact Jarvis, to return profit. such 197 F.3d Cf. (2) advantage; or to whiсh he was not at (holding that a fiduciary is not legally entitled. Policy legally See Insurance any profit entitled to advantage § III.L. Greene was gains liable for stat he as a result of duty breach of utory stock fraud under Section 27.01 of because a fiduciary must account to received). Texas Business & Commerce Code. his principal all he has brought solely against claim could not from Here, advantage resulted Greene’s the Personal Profit Ex- § The remedies for be excluded under of 27.01. violation his equitable Thus, § include the not all securities claims of 27.01 clusion. a violation rescission, requires the trigger which Insureds will the Personal remedy of such, money See Scott any paid. Exclusion. As the Securities return of Profit Sebree, (Tex.App. 368-69 986 S.W.2d is not eviscerated Claims Endorsement 1999) equi § 27.01 allows (holding that finding profited that Greene within the be remedy specific performance table meaning of the Personal Profit Exclusion. recision). Be § 27.01 allows for cause B capital investment
cause return required, have been could parties The Chee next assert even capi to the legal no entitlement there was applies if Profit Exclusion to the Personal resulted Greene’s fraud tal investment. apply not to either the should investment, directly lead capital and offi- Company or the other directors advantage. Greene personal to his the Insurance They cers. contend his fraud. not entitled Exclusion Policy limits the Personal Profit obtained to Insureds who themselves have parties contend The Chee conten- improper profit gain. an This enti was not finding that Greene language of contrary plain tion is to the from his advantage he tled Profit Exclusion. the Personal the Securities eviscerate fraud would un plainly This is Endorsement. Claims Personal Profit Exclusion Profit Exclusion The Personal true. insurance does not states that “[t]his As against an Insured. to claims applies Insured, any any Claim below, in section II.B in detail explained following: out of [ ] Company. from the sеparate are Insureds from, in con upon, arising Claim based claims securities While some having gained of an Insured sequence claim considered a will be remuneration, or profit, personal Insured, when, explained to which such Insured was below, Insured are both *7 Policy Insurance legally entitled.” act, wrongful upon the same sued based added). The exclusion § III.L. will be against claims not all claim require that the be based does not an Insured. As against a claim considered Insured, or such that Insured upon the does not Profit Exclusion the Personal profit or having gained personal a Insured to all Securities claims necessarily apply having an Insured upon but gain, based it does not eviscer against Company, Although personal profit. a gained Endorsement. Claims ate the Securities Insured,” or “that Insured” terms “the personal profit preceding Insured” Moreover, only offi- “such Greene was not the insured as the indicate the same claim. would for a securities sued cer/director Personal brought against, however, claim is was the officer/di- general more Exclusion uses the person- Profit advantage an or gained rector who This indicates “an Insured.” although Kim term example, For profit. al Insureds, not for all coverage is excluded negligent misrepresentations profited. See merely the Insured who to have he was not found parties, Chee F.Supp.2d Lyford, Coregis Ins. Co. ac- misrepresentations, from his benefitted (S.D.Tex.1998) (holding that ex 695, 698 jury findings. to the State court cording “the acts of ‘an’ concerning a clusions coverage over Consequently, insurance insured, ‘any’ opposed representative to exclusions con- Director or Officer insured, cerning operate acts of ‘the’ to bar in the event of his coverage for all insureds when one insured incompetency, insolvency, her or bank- act”). commits such an ruptcy. ¶II, Policy Insurance H. All Section offi
Moréover, partic “courts must be Insureds, cers and directors are thus the ularly wary isоlating from its surround against claims Kim3 and the other officers ings considering apart provi from other sentence, single phrase, against “any a and directors are claims made sions or section of a contract.” Farm against State Ins. Co. v. Insureds.” The Kim claims Life (Tex.1995). Beaston, 430, 907 S.W.2d the other officers and directors are based Here, the Personal Profit Exclusion does upon gained having Greene specific use the term “such Insured” to legally to which he was not entitled. The insured previously indicate the same claims against the directors and officers to, referred when it states that the claim than Kim person other were for control must arise from “an Insured liability. The rationale per behind control in fact personal profit to which liability son person is a control is in a was not Insured entitled.” position prevent the securities violation specific language The use of more within Bear, at issue. See Frank v. Stearns & provision the same further indicates that Co., (Tex.App.2000). 383-84 “an necessarily Insured” does not refer to Thus, person liability control upon is based the same insured whom the claim the underlying securities In violations. By considering was brought. the entire case, this claims the officers provision, it is clear that a claim arising and directors other than Kim were based out having gained personаl of an Insured fraud, upon Greene’s which enabled is not limited to claim gain Greene to an advantage to which he profited. Insured who not legally entitled. Insurance cover If the claims and the other age for the claims the officers and are claims In- officers/directors directors other than Kim are thus exclud sureds out of personal Greene’s ed the Personal Profit Exclusion. profit, then Personal Profit Exclusion jury Kim materially aid- applicable to Kim and the other officers ed in selling stock to the parties. Policy and directors. The Insurance de- advantage, Greene’s to which he was not fines an Insured as entitled, was derived from the stоck any person Policy who after the Retro- parties. sale to the Chee The claims active following: Date is one 1. A against Kim were upon thus based *8 duly Company; elected Director of the advantage. Accordingly, Greene’s the duly 2. A or appointed elected Officer of Personal Profit Exclusion also excludes estate, Company; the 3. The heirs or against for the claims Kim. legal representative of Di- deceased Company rector of the Di- The parties argue who was a that the rector Company or Officer the at the Personal Profit Exclusion does not exclude upon time of the Act Wrongful against which an the claims the Company because it based; insurable Claim is or 4. The legal only applies against claim made disputed It is not that Kim is an officer or issue. director covered the insurance at
373 I respectfully PinkMonkey, not an dissent as to and is “any Insured” However, Kim and White. under the “Limits of Insured. Policy, Insurance Liability” section of the parties argue The Chee that under the from the same Claims “[a]ll holding Mercury of Alstrin v. St. Paul continuous
Wrongful Act or interrelated or (D.Del. Co., F.Supp.2d Insurance 179 Acts of one or more Insured Wrongful 2002), judgment against all defendants single a Claim.” Insur shall constitute upon argu should be reversed based Here, Policy § the claims ance V.B. away ment that the exclusion takes and the claims against coverage granted by insuring agree from the same Greene arise problem argument ment. The with is .Act, Wrongful misrepresentations contrary holding is of this parties. Accordingly, made to the Chee Court, in interpreting Texas law Jarvis company and the claims College Christian v. National Union Fire arise from the same against the Insureds Pittsburgh, Pennsylva Insurance Co. of a claim. Wrongful single Act and constitute nia, (5th Cir.1999). F.3d Conse such, the claim As I quently, agree majority with the that the an Insured. See For also a claim decision as to Green should be affirmed. (“This bau, at 133 court is 876 S.W.2d specifically pro at issue also parts all of a contrаct to bound to read vides that an insured cannot settle without agreement ascertain the of the gether to the consent of the insurer. Since the di The Personal Profit Exclusion parties.”). rectors other than settled without White coverage for the claims thus excludes insurer, the consent of the I would also PinkMonkey. affirm as to those directors. As to di judgment
rector was a White there default agent Kim and as to securities there was Ill finding liability upon negligent based correctly ruled that The district court misrepresentation. in- excluded the Personal Profit Exclusion coverage for the claims surance I. Greene, Kim, the other officers and di- law, “if well estаblished Texas Under rectors, PinkMonkey. Consequently, susceptible of contract of insurance is summary granting court order the district interpretation, more than one reasonable judgment in of TIG is AFFIRMED. favor uncertainty by adopt- we must resolve the ing the construction that most favors PICKERING, Judge, specially Circuit National Fire Ins. Co. insured.” Union dissenting part: in concurring part Co., Inc., Pittsburgh Energy v. Hudson (Tex.1991) (citations 552, 555 majority I with the as to the concur omitted) added). Hudson result reached this case as to executive, particular, exceptions court PinkMonkey’s “[i]n chief and the re- held strictly con- liability on are reached to all of the other directors limitations sult against the insurer and favor except I do not strued company, White. *9 omitted) (em- (citations affirmed as the insured.” Id. agree that this case should be added). Kim, on dealer, The Hudson court went phasis John to the securities the con- say adopt I court must PinkMonkey, “[t]he of White. likewise to director exclusionary urged of an clause that the decision should be struction agree do not by long the insured as construction PinkMonkey. Consequently as to affirmed unreasonable, singular even the construc- Both officer and director are is not if by appears the insurer to be urged Although tion company words. is covered a more accurate more reasonable or claim, as to company a securities itself reflec- (citations Id. parties’ tion intent.” is not covered provisions under other added). omitted) (emphasis policy and is not defined an “In- policy provides sured.” The that “[t]he Circuit, in summarizing The Fifth Texas application coverage written for shall law, be principles set out the above and noted separate application construed as a specifically “exceptions and limita- (Sec- liability strictly tions are even more coverage by each the Insureds.” construed the insurer.” Western tion “IV. REPRESENTATIONS AND Heritage Magic Learning Ins. Co. v. Years SEVERABILITY”) added). (emphasis Care, Inc., 45 F.3d Centers Child Appellants contend that the exclusion (5th added). Cir.1995) “An (emphasis applies to a claim an insured intent to exclude must be ex- who receives a or gain to which he pressed unambiguous in clear and lan- or she is not entitled. That is not Hudson, guage ...” at 555 an interpretation. unreasonable The ex- added). (emphasis The case before this in question clusion is set out and laid out exception, an Court involves exclusion. as follows: question is a “DIRECTOR AND LIABILITY OFFICER POLICY” III. EXCLUSIONS sections, comprised of nine numbered with This any insurance does not to numerals, IX, I through plus Roman an any Claim made arising Insured provides Endorsement. I.A. Section “[w]e out of of the following: pay shall on behalf of eaсh Insured all loss «¡i for which the Insured is not indemnified by Company which the Insured be- L. Any upon, Claim based ...” legally obligated pay comes Sec- from, consequence or in of an Insured provides pay tion I.B. shall on behalf “[w]e having gained in any personal prof- Company all loss for which the it, remuneration, or advantage to which Company grants indemnification to each entitled, Insured was not provides
insured ...” “[w]e Section I.C. added) pay shall on of the behalf all losses for becomes This Exclusion uses the word “Insured” legally obligated pay because of three times. Each time the word “In- ...” Securities Claim The endorsement singular. used, sured” is Each time it is it added a definitiоn of a securities claim as by is adjective. modified a different Chro- “ follows: Claim’ means a claim ‘Securities nologically, “Insured” is modified “any,” an Insured or the Company “an,” and “such.” According to the dictio- alleging a violation of the Securities Act “one,” nary, “any” singular, means but added). ...” (emphasis “some,” can plural.1 mean “An” clearly is singular.
The Definition section of “Such insured” back to de- refers So, fines being the word “Insured” as a “di- “an insured.” the third time the word rector” company. “officer” of the “insured” clearly is used the exclusion it (1958 "any” ed.). 1. The Collegiate Dictionary first definition of the word ster’s New (or, some).” “any. Being pi., one Web- *10 misrepresentation, the claim would gent the word the time back to second refers they that have been covered but since is used. insured against fraudulent claim included the definition, dictionary According he inappropri- Green as to which received interpreted being as “any” can be the word It incon- gain, coverage ate is excluded. Consequently, appel- plural. singular gruous appellants against that if had filed that it is to be construed contention lants’ negligent misrepresentation, Kim for unreasonable. singular is not being as covered, have but since a claim would been is the appellants’ interpretation Bolstering Kim, PinkMonkey and they sued Green the word “insured” is fаct that each time jointly, the claims are excluded from cov- used, and that the words singular it is erage. to “an insured.” insured” refer back “such “any the word insured”
Again, interpreting
“an
majority focuses on the words
The
“such insured” as
being singular, and
as
insured,”
“an
construes the words
insured”
specific insured who
referring back to the
and
meaning “any
(plural)
as
insured”
con-
appel-
gained inappropriately,
profited or
that if a claim is excluded based on
cludes
exclusionary
construction
lants’
actions of
one insured who re-
the
clause is not unreasonable.
inappropriate gain
profit,
an
it is
ceives
not unreasonable to
Accordingly it is
may
to all insureds.
as
While
barred
excluding
as
interpret
the EXCLUSION
interpretation,
it is not the
be a reasonable
against
a claim
the
only
from coverage
interpretation. While it is
reasonable
profit
or ad-
single insured who
interpret
“an insured” as
reasonable
enti-
vantage to which he was
insured, it is also reasonable
meaning any
not ex-
a construction would
tled. Such
single
as a
in-
interpret “any”
insured
against
claim
the securities
clude the
sured,
making
the exclusion
thus
neg-
found liable for
dealer
who was
specific
the
insured
only to a claim
nor would it ex-
misrepresentation,
ligent
gotten gain.
ill
As the
who received the
since he
clude the claim
White
Heritage
case con-
the Western
Court
inappropriately
to have
was not found
“[mjindful
adopt
that we must
cluded
claim
nor would it exclude the
profited,
exclusionary
clause
construction
interpretation
The
Company.
the
.long
it is not
by
-insured as
as
urged
only a
appellants
omitted)
is not
argued
(citation
unreasonable,
we must
in the mind
interpretation, but
reasonable
employer liability exclusion
read the
writer,
consistent with
of this
it is more
...”
to each insured
applying separately
wording
of the exclusion.
Heritage,
language that “all claims arising from the III. interrelated, wrongful same act or re- ordinary usage In the word “claim” can peated, wrongful or continuous acts of one single refer to a theory liability, or it injured or more shall single constitute a can refer to an entire lawsuit including claim.” fallacy of this conclusion is multiple theories. In the Definition sec- that this definition of “claim” un- is found tion of the the word “claim” is de- der Section “V. LIABILITY” LIMITS OF “ fined as ‘Claim’ means a written demand which further states that “the claims shall monetary for damages, including the insti- subject be single to a retention.” Since tution of suit or a demand for arbitration.” this definition of “claim” is not (Section Definition) Quite II.A. often one Definition policy, section of the but rather lawsuit will have a repre- number of claims is found in Liability” the “Limits of sec- tion, senting the different it is not theories a lawsuit. unreasonable to construe this Certainly appellants separate definition of “claim” had being applicable claims liability. to the limits of each defendant. policy, by It is not its terms, unreasonable interpret limiting provided this own separate coverage liability insurer’s limits of and not the as to each company. insured and the *12 against, providing thus brought claim is of “claim” the definition If one uses appellants. majority The then coverage of the in Definition section defined indications. It chooses between these interprets subject policy insurance .two enough is not that an insurance singular as the “any” being word word involved, that an exclusion is but dictionary, the exclusion indicates in the is defined in must be stated clear and insurance the exclusion follows: This does would read as unambiguous terms. That the insured did for mone- “a demand not to written institution of not do. including the tary damages, (one in- against “any insured”
suit” would be correct if Texas majority The sured) following: arising out ambigu- that uncertainties or provided law or in arising from upon, suit based in an be con- ities insurance should insured) (one or an insured consequence But strued favor of the insurer. Texas any personal 'profit, gained in fact fact, In Texas provide. law does not so remuneration, advantage of which such contrary. law is to the To read not entitled. insured was I, therefore, part specially concur “company” into this exclusion the word part. dissent in respectfully company than to read the less reasonable clearly since TIG knew of the exclusion out policy and to amend the
how En- by the the Definition section
amended respects. in several
dorsement majority
The writes “that the terms “the insured”
Although preceding or “such insured”
insured” Jr., DANIEL, Plaintiff- Alden Joe same would indicate the personal profit Aрpellant, brought against, claim is insured as the exclusion uses personal profit This term “an insured.” general more al., CANTRELL, M. et Ellie coverage that is excluded indicates Defendants-Appellees. insureds, who merely the insured all added). profited, No. 03-5188. “an insured” indicates the words
Whether Appeals, United States Court for all insureds coverage is excluded Sixth Circuit. is whether or not the test. The test is not interpretation is another reasonable there 12, 2004. March Submitted: particularly is to be of the exclusion which July and Filed: Decided the insurer. The exclu- construed unambig- in clear and expressed is not sion requires. law The language as Texas
uous majority proves quotation
above majority point of this dissent. “an indicates that the words insured”
finds for all insureds. is excluded the terms “the majority notes insured,” or “such insured” “that insured” as the the same insured would indicate