Professional Documents
Culture Documents
3d 1290
Tim Dalton Dunn (Paul J. Simonson with him on the briefs) of Dunn &
Dunn, P.C., Salt Lake City, UT, for Defendant-Appellant.
Julianne P. Blanch (Michael R. Carlston, Stanley J. Preston, and Camille
N. Johnson with her on the brief) of Snow, Christensen & Martineau, Salt
Lake City, UT, for Plaintiff-Appellee.
Before EBEL, McKAY, and LUCERO, Circuit Judges.
McKAY, Circuit Judge.
The district court determined that, of the eleven causes of action in the Nielsen
suit, only the tenth cause of action could possibly trigger coverage under
Mutual Service's policies. This cause of action alleged defamation resulting
from employment-related comments made by Moroni Feed's various employees
and officers. The district court concluded that the CGL policy specifically
excluded coverage for personal injuries resulting from defamation. However,
the district court also concluded that exclusion t of the Umbrella policy was
ambiguous, triggering coverage for the Nielsen lawsuit. Mutual Service appeals
the district court's finding that exclusion t is ambiguous and its Umbrella policy
provides Moroni Feed coverage for the Nielsen suit. Moroni Feed did not
appeal the district court's finding that the CGL policy provided no coverage for
the allegations contained in the Nielsen complaint.
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Mutual Service's Umbrella policy divides coverage into two sections. Coverage
A provides "excess" coverage to underlying insurance, but only if that
underlying insurance also provides coverage for the claim in question. Because
the district court found that the CGL policy (underlying insurance) did not
provide coverage for the Nielsen litigation, Coverage A of the Umbrella policy
is inapplicable.
Coverage B of the Umbrella policy provides insurance coverage for injuries not
covered by underlying insurance provided that the particular type of injury is
not specifically excluded. At issue is exclusion t, which excludes coverage for
"injury arising out of the employment practices of the insured, including
wrongful dismissal of, or wrongful termination of, or discrimination against any
officer or employee." Aplt.App. at 57. The Umbrella policy does not
specifically define the term "employment practice."
We cannot agree with the district court's finding that exclusion t is ambiguous.
The use of the word "including" simply gives examples of activities considered
to be "employment practices" for purposes of coverage under the insurance
policy. Nothing, however, supports the district court's conclusion that the
exclusion could also be interpreted to exclude only three types of employment
practices (wrongful dismissal, wrongful termination, or discrimination).
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Obviously, Moroni Feed's liability, and therefore its policy coverage, extends
only to the charged acts of its employees occurring within the scope of their
employment. Conversely, Moroni Feed cannot be held liable and Mutual
Service's policy would not cover statements made by Moroni Feed's employees
outside of the scope of their employment. In analyzing Moroni Feed's claim of
coverage, we need only consider Mr. Nielsen's allegations regarding statements
made by Moroni Feed's employees within the scope of their employment.
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