are responsible for payment of a judgment entered against their insured mark thompson it is an appeal from the district court's order granting summary judgment to both lloyd's of london syndicate are two primary issues on appeal st whether the terms hunt club coverage area and commercial hunting operation are ambiguous under ohio law that means they 're reasonably susceptible of more than one meaning nd whether the mark and tommy hunt club and ohio whitetail adventures are separate entities under the terms of the policies and ohio law to their to policy that issue in this case we've called them policy fifty and policy sixty a policy fifty is a one million dollar c g l policy issued to the quality deer management association and a group of one club it is described in the brief as the earth in ohio but gave no specific boundaries for that property and the policy application and the policy listed both ohio whitetail to ventures and mark thompson under the classification of the one club being insured the coverage area was defined in the policy as usa puerto rico and canada there was a policy indorsement that stated the hon clubs that are named on property designated and on file with outdoor underwriters are included as insured and outdoor underwriters as an agent of lloyds of london and was instrumental in the acquisition of the two policies that are issue of the land where brown rusher was injured with on the property that thompson was leasing from the company and that property was designated and on file with outdoor underwriters and that stated in the policy release that lloy ninety nine dollars policy sixty eight dollars is another one million dollars commercial general liability policy issued to r m k temper land and amended to include company and other hunt club it also listed mark thompson like policy fifty did and also listed mark and tommy hunt club as insure thompson least two hundred and eighty nine point seven seven acres from cya to land company and everyone agrees that rusher was injured when he fell from a tree stand on the acreage described in policy sixty eight so the law in this case is is from ohio it is the diversity case as it was the location of the injury and suit was filed in ohio all three members of today's panel have written opinions regarding the rules of contract insurance coverage under ohio law judge why you wrote ambiguity in an insurance contract is ordinarily interpreted against the  hundred and twenty six circuit opinion judges you've written specialized definitions provided in the policy govern notwithstanding their ordinary meaning but ambiguous coverage or ask you question counsel you really you've talked a lot about we haven't gotten a chance to get to the issues yet so i'm just suggesting that we got it thank you your honor let's talk  about st of all about the distinction between a hunt club and a commercial hunting operation both policies are marketed and sold as protection for one club but that term is not defined in either policy nor the term commercial whaling operation in fact the term commercial hunting operation is not included in the policy the district court relied upon language in the application issued with the policy for the exclusion we've noted in our primary brief that extrinsic evidence may not be used in favor of the insurer to create an argument that the policy is not ambiguous yet the district court concluded that thompson was operating a commercial hunting operation rejecting the testimony of mark thompson that he was operating a hunt club and we would submit that the court erred in that regard also with regard to the term coverage policy defined the term to include the us in a policy endorsement stated that it covered occurrences arising out of one club and members operated operations on a grid leased to the hunt club by the quality deer management association landowner owners and everyone agrees that title land company where brett rusher was injured was a q b and a land owner and that land was on  with ohio underwriters so we would submit that the court erred in interpreting the term coverage area the next issue is whether or not the court erred in making a distinction between the mark and tommy hunt club and ohio whitetail adventures ohio law it's clear that a sole proprietorship has no legal identity separate from the individual who owns it yet the district held that policy sixty eight did not provide coverage because it was issued to mark and tami one club instead of ohio whitetails whitetail adventures this holding was wrong because mark thompson was also listed as an insured on the policy and the policy specifically provided that if you are designated in the declarations of an individual you and your spouse are insured with respect to the conduct of a business of which you urging of the quality deer management association so the court should not have distinguished between the marking time me club and ohio whitetail adventures but i think it's a different argument to rely on the fact the thompson himself was an no legal identity separate from the individual who owns it i'm not aware of any case law in ohio that says that a sole proprietorship can be separate that policy would cover any other sole proprietor kingship owned by thomson yes that is related to hunting operations well let's say the policy didn't confine itself the general liability policy on o w a and he had five other sole proprietorships one was car repair one was something else if you're saying there's no the ohio says there's no between these entities then and that's the policy doesn't say you can find a hunting activity when you're saying that all of these other folks surprise or should be insured glacier before you before you answer judge white's question i just want the panel to be aware that as time has been exhausted go ahead ok why don't we make a stop after this answer but you can certainly so any activities that mr thompson was engaging in as a sole proprietor would be covered by the policy that case involves a completely separate operation and so one of the operations was covered under the terms of the policy and the others other was not it's not a situation like this where all of the if it was an auto shop as it applies to these facts then this policy only covers hunting operations and so that's the distinction i was trying to draw your honor and was that the distinction in the in the indiana insurance pays the type of activity not the fact that they were separate operations not to be honest your honor i don't recall specifically th mr fact i'll wait for the police thank you this is david signally for apple e's certain underwriters at lloyd's of london if it sees the court there's too policies at issue here and the threshold issue is whether or not mr thompson and this last fall within the coverage provided by these two policies that's the threshold issue in each of these and i think that the appellant has conflated a couple of issues here in the arguments st of all just to briefly address the patterson versus vienna model body that has to do with the issue of whether or not an individual that operates a sole proprietorship  use the sole proprietorship as a sort of a corporate shield or whether the individual operating the sole proprietorship has personal liability for the operations of that sole proprietorship and that's really the issue in that case it has nothing to do with what we're talking about here insurance coverage and whether or not the activities that give rise to this claim and mr thompson qualify as an insured under these policies and we would submit that mr thompson for the activities that were involved here does not meet the definition of an insured under either of these policies policy fifty is a policy that's issued to the quality deer management association policy number sixty eight has nothing to do with quality deer management association there are two separate policies two separate things the way mr thompson attempted to obtain coverage under the quality deer management association is that he went to lease some property from earth touch marine metcalf in mcarthur ohio and she required that policy lists the insured as quality near their management association landowners and hunt clubs it doesn't insure mr thompson and the way that there's an endorsement that limits the coverage for one clubs and it says that who is in insured under section two is amended to include the hunt club hunt club members and their guest and invitees agents or employees of the one club but only with respect to their liability arising from the activities and operations of the hot club within the acreage leased to the hunt club and the term one club will mean the organization or association leasing land from but only for its activities or operations within the leased land the leased land under the quality under a policy fifty that said that mr thompson applied for coverage for is the earth touch property three hundred and ninety seven acres in more than macarthur ohio not the property where this incident occurred and so it has nothing to do with this loss because this didn't happen on any of the property that's insured under that policy under policy number fifty it doesn't fit within the definition of an insured loss and he doesn't qualify as an insured his name doesn't appear anywhere in the policy and the only connection between that policy and mr thompson is that he applied for and got a certificate of insurance for four hundred dollars acres that belonged earth touch in macarthur ohio where this last did not occur policy number sixty eight is a different policy entirely that policy again does not ensure mr thomson does not insure any of his businesses his name does not appear anywhere on that policy and he doesn't fit within the definition of an insured for purposes of this loss that policy is issued to r m k timberlands group the c o two a land company is club that he formed the mark and tommy hunt club which he formed in two thousand and eight and had other members least land from the c e o to land company and they were not allowed to use that land for any commercial purposes it was only to be used for hunting activities the least specifically excluded any use for commercial purposes and the mark and tommy hunt club qualifies as an insured under the  or seven other hunters to lease this land from the c e o to land company now he was the contact person for that club but it was not to be a commercial enterprise and it was not  you know it was it was not him personally that was insured under that policy the activities that give rise to this were a very commercial activity involving ohio whitetail adventures which is a business that he formed in two thousand and eight or two thousand and nine he had a fictitious name registered with the state of ohio he paid  wrote his expenses off his losses on his income taxes every year according to his deposition testimony he had a web site that he advertised his business on he represented that he was an outfitter and that is the that is the organization and then mr rusk or made arrangements for a fee originally to be one thousand six hundred dollars for him and six hundred dollars for his hunting mate to come down to ohio and hunt on this land and stay on mr rescuers property and and hunt and there were eleven other people that were staying on the property at the same time many of them paying the same thing according to thompson two to hunt this was a business that he was running every there's every indication that it's a business he indicated that he never told mr  say that the paperwork said that that by paying this you're joining the hunt club and you can come back is like the  nonprofit where you pay you split your expenses paid dues someone runs it it's generally not run for profit he was running this true his personal checking account deal whitetail adventures was  business and he was running through his own personal checking account he was taking writing it off as a loss on his business it wasn't a club the club is is an organization were people joined it have a common interest certainly you could you could join a club by pain a fee for belonging to the club for a period of time to offset the expenses but mr rusk or had no he never  said he never belonged to a club he didn't have any indication that he was going to belong to a club but regardless it was the mark and tommy hunt club that lease this property and wasn't insured under the r m k timberlands group policy so it wasn't ohio whitetail adventures and all of mr rescuers dealings he signed an agreement when he came down here with ohio whitetail adventures t by the time what there came along there was thompson was no longer doing these full outfitting outings and was simply letting people become members of mark and tom the and then you go out on the property and you're on your own and if in fact he was treating the companies as the same would there be a question of that this too whether this transaction was with and let's say when when they st got there the all the papers said ohio whitetail but to perhaps except for the fact that there's two separate entities there's a mark and tommy hunt club which policy number sixty eight insurers and there is a policy fifty that doesn't insure the property him before this last occurred and that's the only and to t v that could arguably be qualified as an insured under the r m k timberlands policy number sixty eight so where never said that to him before this loss occurred he told his hunting partner after the loss that occurred after the incident occurred he told his hunting partner he told rescuers hunting partner thompson that you can come back and one another time but rusk or said that when he was down there he never had anything but that if he had it if he wanted to stay more than four days he'd have to pay more money and that there was never any mention to him about the hunt club and thompson gave no definitive testimony that he told anyone about changing from a from a for profit organization to hunt club at a later time but regardless he had two separate entities ohio whitetail adventures and the mark and tommy hunt club only the mark and tommy hunt club is insured under their m k timberlands policy number sixty eight there's no indication that mark and tommy hunt club had anything to do with the transaction between thompson and rusk or ohio whitetail adventures insured under policy fifty four a different piece of property and this court should reverse and remand and enter a judgment in plaintiff's favor that they never move for summary judgment in the lower court they argue that there was an issue of fact so that wouldn't that's they're asking for relief in this court that is different than the relief that they asked for in the trial court the plaintiffs below request entry of summary judgment under rule fifty six which allows the court to enter a summary judgment for either side and allow the party to make a request for summary judgment should enter in their fate or even if they did not formally filed a motion we also joined and they both counsel would you say that again what is right and where would we find that  and in our opposition brief we requested a summary judgment in the conclusion portion of that brief that in this case it's a has so he didn't move forward with respect to these insurers yes it so highland hospital filed a motion with respect to these insurers we joined in that motion and then we also requested entry of judgment in our opposition to lloyd's motion  for that thank you i want to address in the in the time remaining the issue as it relates to who is covered by the insurance policy language of the policy itself it says if you are designated in the declarations as an individual you and your spouse are insured with respect to the conduct of a business of which you're a sole owner so if mr thom is that he was running this operation as a one club notwithstanding paperwork that would find that indicated that ohio whitetails adventures was also in existence at that point as and as noted i think by judge white he was in the process and did roll over all of this ohio whitetails adventure business into his new venture which was marc and tommy hunt club  sole proprietorship and as such covered his business regardless of the name that was attached to it are there any other questions for me  the case is submitted and you may call the next case