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Insura Property and Casualty Insurance Company v. Ashe2/6/2003
Insura Property and Casualty Insurance Company issued its commercial general liability (CGL) insurance policy to Lineberry Properties, Inc. for the period May 1, 1998 through May 1, 1999. Lineberry Properties, Inc. is a corporation, with the stock thereof owned by Dewey L. Lineberry. Lawdog Communications, LLC, is another entity wholly owned by Dewey L. Lineberry.
On January 15, 1999, Terry Ashe and Wife, Judy Ashe, filed suit against Dewey L. Lineberry, Lawdog Communications, LLC, and Lineberry Properties, Inc. seeking damages from allegations that the Lineberry defendants intentionally and maliciously committed acts of slander and libel against Mr. and Mrs. Ashe through oral and published statements asserting that Terry Ashe had procured the killing of the former husband of Judy Ashe and other published statements maligning the Ashes. The Ashes sought damages, compensatory and punitive, in the amount of ten million dollars.
Defendants called upon Insura Property and Casualty Insurance Company to defend them in the Ashe lawsuit, and, on May 22, 2000, Insura filed a Complaint for Declaratory Judgment seeking a declaration that the general commercial liability policy provided no coverage for Lineberry and his corporate entities for the matters asserted in the Ashe lawsuit. On June 29, 2000, Lineberry and his corporate entities filed an answer asserting that coverage was proper and filed a Counter-Claim for breach of contract and violation of the Tennessee Consumer Protection Act. Tenn. Code Ann. ยง 47-18-104. Terry Ashe and Judy Ashe, having been named as defendants by Insura, answered on July 10, 2000, essentially asserting that they had no dog in this fight.
On December 10, 2001, Plaintiff filed a Motion for Summary Judgment that, on February 1, 2002, was granted by the trial court. On February 12, 2002, the Lineberry Defendants timely appealed.
Coverage was properly denied by the trial court for the same reasons that coverage was denied in American Indemnity Co. v. Foy Trailer Rentals, Inc., No. W2000-00397-COA-R3-CV, 2000 WL 1839131 (Tenn. Ct. App. Nov. 28, 2000) (no Tenn. R. App. P. 11 application filed). The coverage in Foy Trailers is stated in precisely the same language as appears in the Insura policy. In Foy Trailers, this Court held:
Commercial general liability policies are designed to protect the insured from losses arising out of business operations. CGL policies are not `all-risk' policies; rather, these policies provide the insured with coverage up to the policy limits for damages for which the insured becomes liable as a result of tort liability to a third party. When facing coverage questions, the essential elements of a CGL policy should be construed in the following order: the declarations, insuring agreement and definitions, exclusions, conditions, and endorsements. The insuring agreement reflects the limits of an insurer's liability. If coverage is not found in the insuring agreement, it will not be found elsewhere in the policy. Exclusions are read in terms of the insuring agreement to which they apply, and they can only decrease coverage. Foy Trailer Rentals, 2000 WL 1839131, at *3 (citations omitted).
Lineberry Properties, Inc. is the only named defendant insured by the Insura policy. Throughout the policy appears the unambiguous statement: "Named insured's business: property owner." The applicable coverage provision in the Insura policy provides:
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of personal injury or advertising injury to which this insurance applies. We will have the right and duty to defend th
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