United States Court of Appeals

For the First Circuit

No. 21-1603

MOTORISTS COMMERCIAL MUTUAL INSURANCE COMPANY,

Plaintiff, Appellee,

v.

ROGER HARTWELL; LYNNWAY AUTO AUCTION, INC.,

Defendants, Appellants,

SAFETY INSURANCE COMPANY; RUBEN D. ESPAILLAT, as Personal 

Representative of the Estate of Ruben Dario Espaillat; TAMMY L. 

BERIO, as Personal Representative of the Estate of Elliott 

Rowlands, Jr.; GIOVANNI SANTIAGO; KENNETH VINCENT; MAUREEN 

VINCENT; STEVEN SARKIS; SANDRA ORTIZ, as Personal Representative 

of the Estate of Leezandra Aponte; BRESMIL ROBLES; FANNY 

RAMIREZ; MARK LEE; SHIRLEY MEZA LOPEZ, as Personal 

Representative of the Estate of Brenda Lopez; EMELLY COLONSANTOS; EDRIS M. SANTOS, as Personal Representative of the 

Estate of Pantaleon Santos; FLAVIO JANUARIO,

Defendants.

No. 21-1636

MOTORISTS COMMERCIAL MUTUAL INSURANCE COMPANY,

Plaintiff, Appellee,

v. 

RUBEN D. ESPAILLAT, as Personal Representative of the Estate of 

Ruben Dario Espaillat; TAMMY L. BERIO, as Personal 

Representative of the Estate of Elliott Rowlands, Jr.; GIOVANNI 

SANTIAGO; KENNETH VINCENT; MAUREEN VINCENT; STEVEN SARKIS; 

SANDRA ORTIZ, as Personal Representative of the Estate of 

Leezandra Aponte; FLAVIO JANUARIO,
Defendants, Appellants,

ROGER HARTWELL; LYNNWAY AUTO AUCTION, INC.; SAFETY INSURANCE 

COMPANY; BRESMIL ROBLES; FANNY RAMIREZ; SHIRLEY MEZA LOPEZ, as 

Personal Representative of the Estate of Brenda Lopez; EMELLY 

COLON-SANTOS; EDRIS M. SANTOS, as Personal Representative of the 

Estate of Pantaleon Santos; MARK LEE,

Defendants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge] 

Before

Kayatta, Thompson, and Gelpí, Circuit Judges.

Louis J. Muggeo, with whom Jared J. Muggeo and Muggeo & 

Associates were on brief, for appellants Roger Hartwell and Lynnway 

Auto Auction, Inc.

J. Michael Conley, with whom Kenney & Conley, P.C. was on 

brief, for appellants Ruben D. Espaillat, Tammy L. Berio, Giovanni 

Santiago, Kenneth Vincent, Maureen Vincent, Steven Sarkis, Sandra 

Ortiz, and Flavio Januario.

Patrick F. Hofer, with whom Jared K. Clapper, Clyde & Co US 

LLP, Ben N. Dunlap, and Freeman Mathis & Gary, LLP were on brief, 

for appellee. 

November 23, 2022
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KAYATTA, Circuit Judge. This insurance-coverage dispute 

arises from an auction at which a motor vehicle being displayed 

for bidding suddenly accelerated into a group of attendees, killing 

five and injuring many others. Motorists Commercial Mutual 

Insurance Company ("Motorists"), which insured the dealership that 

owned the vehicle, brought this action seeking a declaration that 

its policies do not cover the auctioneer or its employee who was 

behind the wheel of the vehicle when it struck the victims. 

Defendants in this action include those who claim an interest in 

Motorists' coverage: the victims, the auctioneer, and its

employee. Both sides moved for summary judgment, which the 

district court granted in favor of Motorists. Motorists Com. Mut. 

Ins. Co. v. Hartwell, 549 F. Supp. 3d 220, 231 (D. Mass. 2021). 

After a fresh look at defendants' arguments spanning several 

policies and provisions, we agree with the district court that 

Motorists' policies do not cover this accident. Our reasoning 

follows. 

I.

A.

We draw the following facts primarily from the parties' 

statements of material facts, the responses to each, and the 

Motorists policies at issue.

Nashua Automotive, LLC is a New Hampshire car dealership 

that sells new and used cars. It is owned by a dealership group 
- 4 -

called AutoFair, Inc. and operates under the name "AutoFair

Volkswagen of Nashua." We will refer to Nashua Automotive, LLC as 

"Nashua."

While AutoFair dealerships, like Nashua, sell most of 

their vehicles "retail" (to the public), about 8% or 9% of their 

revenues come from vehicles sold "wholesale" (online or at an 

auction). For its vehicles sold wholesale, Nashua primarily 

engages with a company called Lynnway Auto Auction, Inc., which 

operates an auction facility in Billerica, Massachusetts. Neither 

AutoFair nor Nashua owns Lynnway, and Lynnway does not own Nashua 

or AutoFair. 

In April 2017, Nashua received a 2006 Jeep Grand Cherokee 

as a trade-in for a new vehicle it sold. Nashua arranged for 

Lynnway to auction the Jeep. On May 3, 2017, while that Jeep was 

being put up for auction inside Lynnway's Billerica facility, it 

accelerated into a crowd, causing multiple serious injuries and 

five deaths. At the time of the accident, Lynnway employee Roger 

Hartwell was seated in the driver's seat of the Jeep, though he 

claims that the vehicle accelerated uncontrollably despite his 

efforts to stop it. Hartwell was subject to a long series of 

suspensions of his driver's license, although the parties dispute 

whether Hartwell's license was suspended at the time of the 

accident. 
- 5 -

In due course, the victims and their estates filed a 

series of lawsuits in Massachusetts state court, alleging several 

theories of liability against Lynnway, Hartwell, Nashua and 

AutoFair, as well as other related individuals and entities. 

B.

Of the various insurance companies whose policies may be 

implicated by those underlying claims, this case concerns only 

one: Motorists Commercial Mutual Insurance Company. Motorists 

provided a liability policy (the "Primary Policy") that covered

AutoFair, Nashua, and other AutoFair-affiliated dealerships as 

named insureds, but did not name Lynnway or Hartwell among the 

insureds. Motorists also provided a so-called "Commercial 

Umbrella" policy (the "Umbrella Policy"), which provided

supplemental insurance above the Primary Policy's limits to many 

of the same named insureds, including Nashua and AutoFair. 

The Primary Policy includes a "Garage Coverage Form" 

that provides that Motorists "will pay all sums an 'insured' 

legally must pay as damages because of 'bodily injury' or 'property 

damage' to which this insurance applies, caused by an 'accident' 

and resulting from 'garage operations' involving the ownership, 

maintenance or use of covered 'autos.'" This form was modified by 

a New Hampshire Changes in Policy endorsement (the "New Hampshire 

Endorsement"). We train our attention on two provisions giving 

rise to the parties' dispute. First, the New Hampshire Endorsement 
- 6 -

changed the definition of "Who Is An Insured" such that it includes 

"[a]nyone else while using with your permission a covered 'auto' 

you own . . . except . . . [s]omeone using a covered 'auto' while 

he or she is working in a business of selling, servicing or 

repairing 'autos' unless that business is yours." Following the 

parties' lead, we refer to this provision as the "auto business 

exclusion."1 Second, the New Hampshire Endorsement added an 

exclusion that provides that the insurance does not apply to "[a]ny 

'insured' for 'bodily injury' or 'property damage' arising out of 

the operation of any vehicle by that 'insured' and while that 

'insured's' driver's license is under suspension or revocation." 

We call this the "suspended license exclusion."

The Umbrella Policy, in turn, provides further coverage 

for bodily injuries, but contains an "Automobile Liability --

Following Form" endorsement, which provides: 

Except as coverage is available to you in the 

underlying policies as set forth in the 

Schedule of Underlying Insurance, this policy 

does not apply to the ownership, maintenance, 

operation, [or] use . . . of any automobile 

while away from premises owned by, rented to, 

or controlled by you.2 

1 Though styled as such by the parties and other courts, the 

auto business exclusion appears in the policy here not as an 

exclusion but as part of the definition of who is an insured. We 

adopt the parties' use of the "exclusion" phrasing only for ease 

of discussion. 

2 The Primary Policy is included in the Schedule of 

Underlying Insurance for the Umbrella Policy. 
- 7 -

Finally, as relevant here, the Umbrella Policy also defines 

"who is an insured" for that policy, which specifically excludes 

"[a]ny person employed by or engaged in the duties of an auto sales 

agency . . . that you do not operate." 

C.

Motorists initiated this federal action in the District 

of Massachusetts on the basis of diversity jurisdiction, seeking 

a declaratory judgment that its policies do not provide coverage 

for the victims' claims against Lynnway and its employee. 

Defendants include Lynnway and Hartwell (the "Lynnway defendants") 

and the accident victims who brought the state-court suits (the 

"victim defendants"). All defendants moved for summary judgment 

below, prompting a cross-motion from Motorists. Motorists pointed 

to both the auto business exclusion and the suspended license 

exclusion described above, each of which Motorists contended 

foreclosed coverage under the Primary Policy. It also argued that 

its Umbrella Policy's Following Form Endorsement provides auto 

coverage that is no broader than that provided for in the Primary 

Policy. 

The district court agreed with Motorists on all three 

scores, granting summary judgment in its favor. Motorists, 549 F. 

Supp. 3d at 229–31. Defendants took timely appeals that we 

consolidated for briefing and argument. 
- 8 -

II.

We review de novo the district court's grant of summary 

judgment. AJC Int'l, Inc. v. Triple-S Propiedad, 790 F.3d 1, 3 

(1st Cir. 2015). A district court awards summary judgment when 

"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). 

For a factual dispute to be "genuine," there must be "sufficient 

evidence favoring the nonmoving party for a jury to return a 

verdict for that party." Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 249 (1986). "[O]n an appeal from cross-motions for 

summary judgment, the standard does not change; we view each motion 

separately and draw all reasonable inferences in favor of the 

respective non-moving party." Pac. Indem. Co. v. Deming, 828 F.3d 

19, 23 (1st Cir. 2016) (quoting Roman Cath. Bishop of Springfield

v. City of Springfield, 724 F.3d 78, 89 (1st Cir. 2013)).

The parties agree that New Hampshire substantive law 

governs the insurance contracts because the policies were issued 

to New Hampshire insureds. We therefore look to that state's law 

for the insurance-law principles that will guide our review. See

Merch. Ins. Co. of N.H. v. U.S. Fid. & Guar. Co., 143 F.3d 5, 8 

(1st Cir. 1998) (forgoing independent choice-of-law analysis where 

the parties agreed Massachusetts law applied and there was "at 

least a 'reasonable relation' between the dispute and the forum 
- 9 -

whose law has been selected by the parties" (quoting Bird v. 

Centennial Ins. Co., 11 F.3d 228, 231 n.5 (1st Cir. 1993))). 

Among those principles is the familiar instruction that 

"[i]nterpretation of an insurance policy is a question of law." 

Todd v. Vt. Mut. Ins. Co., 137 A.3d 1115, 1120 (N.H. 2016). We 

examine "the plain and ordinary meaning of the words in context" 

to construe the policy's terms "as would a reasonable person in 

the position of the insured based on more than a casual reading of 

the policy as a whole." Id. (quoting Great Am. Dining, Inc. v. 

Phila. Indem. Ins. Co., 62 A.3d 843, 846 (N.H. 2013)). Our inquiry 

must be objective, so where the policy is "clear and unambiguous," 

we will "accord the language its natural and ordinary meaning." 

Newell v. Markel Corp., 145 A.3d 127, 130 (N.H. 2016) (quoting 

Colony Ins. Co. v. Dover Indoor Climbing Gym, 974 A.2d 399, 401 

(N.H. 2009)). But, "[i]f more than one reasonable interpretation

is possible, and an interpretation provides coverage, the policy 

contains an ambiguity and will be construed against the insurer." 

Brickley v. Progressive N. Ins. Co., 7 A.3d 1215, 1217 (N.H. 2010) 

(quoting Cath. Med. Ctr. v. Exec. Risk Indem., 867 A.2d 453, 456 

(N.H. 2005)). 

III.

On appeal, both the Lynnway defendants and the victim 

defendants contend that the coverage provided by the broad insuring 

clause of the Primary Policy survives that policy's auto business 
- 10 -

exclusion as well as its suspended license exclusion. They also 

insist that the Umbrella Policy separately provides coverage. 

A.

We consider first the Primary Policy. The parties agree 

that Lynnway and Hartwell are covered under the Primary Policy 

unless one of the two exclusions relied upon by Motorists applies. 

Like the parties, we train our attention first on the auto business 

exclusion. As modified by the New Hampshire Endorsement, that 

exclusion excepts from the definition of insureds "[s]omeone using 

a covered 'auto' while he or she is working in a business of 

selling, servicing or repairing 'autos' unless that business is 

yours." The "yours" in this language refers to a named insured -

- in this case, Nashua. Defendants argue, first, that Lynnway was 

not "in a business of selling, servicing, or repairing autos." 

Second, they argue that even if Lynnway was in such a business, 

that business was Nashua's. We address these arguments in turn.

1.

Defendants' contention that Lynnway and its employee

were not in the business of selling autos warrants only a brief 

discussion, as they were plainly engaged in that business. 

Lynnway's Articles of Incorporation describe it as "a general 

automobile auction business" whose purpose is "to auction, sell 

and distribute automobiles" and "[t]o engage in the business of 

purchasing, . . . [and] selling . . . all types of new and used 
- 11 -

automobiles." The Lynnway defendants principally argue that an 

auctioneer who never takes title to the goods sold acts merely as 

a broker, rather than the seller (or offeror) of the goods. But 

under the plain language of the policy, we focus not on whether 

Lynnway took title to the auto. We focus instead on whether 

Hartwell and Lynnway were working in a business of selling autos.

Under New Hampshire law, we are bound to consider "the 

plain and ordinary meaning" of the exclusion language "as would a 

reasonable person in the position of the insured." Todd, 137 A.3d 

at 1120 (quoting Great Am. Dining, 62 A.3d at 846). A reasonable 

person understands that an auction is a sale, and thus that someone 

engaged in an auction business is engaged in a selling business. 

See Auction, Black's Law Dictionary (11th ed. 2019) (defining 

"auction" as "[a] public sale of property to the highest bidder; 

a sale by consecutive bidding, intended to reach the highest price 

of the article through competition for it"); Auction, MerriamWebster Online Dictionary, https://www.merriam-webster.com/

dictionary/auction (last visited Nov. 22, 2022) (defining 

"auction" as "a sale of property to the highest bidder"). Indeed, 

the Lynnway defendants' own brief elsewhere appears to adopt this 

commonsense understanding, referring to Lynnway's business as 

"engaged in the activity of selling cars for AutoFair at the time 

of the accident." In the absence of any authority holding that 

only someone with title to goods can be engaged in a business of 
- 12 -

selling those goods, we decline to adopt defendants' strained 

reading of the unambiguous policy language.3 See Russell v. NGM 

Ins. Co., 176 A.3d 196, 200 (N.H. 2017) ("For an ambiguity to 

exist, the disagreement must be reasonable. . . . [T]his court 

will not perform amazing feats of linguistic gymnastics to find a 

purported ambiguity simply to construe the policy against the 

insurer and create coverage where it is clear that none was 

intended." (quoting Bartlett v. Com. Ins. Co., 114 A.3d 724, 733 

(N.H. 2015))).4

2.

As an alternative, defendants contend that any selling 

business in which Lynnway and Hartwell were engaged at the time of 

the accident was Nashua's business. This contention fares no 

better than the first. As just established, Lynnway and Hartwell 

3 The Lynnway defendants invoke several Massachusetts 

statutes defining "dealer," "owner," and "seller" to support their 

argument that they were not in the business of selling autos. See

Mass. Gen. Laws ch. 90, § 1; id. ch. 106, § 2-103(1)(a), (d). But 

these statutes largely bear on irrelevant questions, such as 

whether Lynnway was an auto "dealer," or what obligations Nashua 

had as the owner of the auto being sold. At best, these statutes 

clarify who is "the seller" of an auto in a given transaction. 

None shed light on the separate inquiry of why the "business of 

selling autos" under New Hampshire law must be construed to 

encompass only the title-holding seller and to exclude 

auctioneers.

4 Because we find that Lynnway and Hartwell were working in 

a business of selling autos, we need not consider Motorists' 

alternative argument that they were working in a business of 

"servicing" autos, on account of Lynnway's washing and refueling 

the cars it auctioned. 
- 13 -

were at that time engaged in a particular method of selling: They 

were auctioning the Jeep. And it is undisputed that Nashua was 

not itself an auction house -- it engaged with other entities, 

like Lynnway, for this purpose. So while Nashua can fairly be 

said to have retained Lynnway to sell its vehicle, we see nothing 

in that relationship to suggest that Lynnway's independent auction 

business had been converted into an arm of Nashua's business. Cf.

Carney v. Erie Ins. Co., 434 S.E.2d 374, 377, 379 (W. Va. 1993) 

(holding that the "unless the business is yours" exception in a 

nearly identical auto business exclusion did not apply because the 

policyholder "did not own the automobile business" that she was 

working for when the accident occurred).

Defendants resist this conclusion, arguing that we 

should read "business" to mean the "activity" of selling the car. 

So construed, one might then say, as defendants do, that Lynnway

and Hartwell were engaged in Nashua's "business" because they "were 

using Nashua's vehicle in support of Nashua's efforts to sell its 

vehicle." At the least, defendants maintain that it is ambiguous 

whether the exclusion refers to a business entity or a business 

activity, and thus that the ambiguity should be construed against 

the insurer.5 

5 Defendants also urge us to consider the import of Nautilus 

Insurance Co. v. Ferreira, No. 1:20-cv-1053-JL, 2021 WL 3677713 

(D.N.H. Aug. 19, 2021), for the question whether Lynnway was 

working in Nashua's business. But that case examined materially 
- 14 -

We are unpersuaded. In reading language in an insurance 

policy, we consider the context, see Great Am. Dining, 62 A.3d at

846 ("We look to the plain and ordinary meaning of the policy's 

words in context."), the reasonable expectations of the insured,

see Contoocook Valley Sch. Dist. v. Graphic Arts Mut. Ins. Co., 

788 A.2d 259, 261 (N.H. 2001), and the purpose of the language in 

question, Tech-Built 153, Inc. v. Va. Sur. Co., 898 A.2d 1007, 

1009 (N.H. 2006) ("The fundamental goal of interpreting an 

insurance policy, as in all contracts, is to carry out the intent 

of the contracting parties. To discern the parties' intent, we 

first examine the language of the contract itself." (citations 

omitted)).

Here, the language at issue plainly aims at making sure 

that coverage does not extend in general to persons or entities 

working in any business of selling autos, while at the same time 

carving out an exception. The issue posed here is the reach of 

that exception. Clearly it preserves coverage for Nashua and its 

employees. Construing the "business" that is "yours" to mean 

Nashua's business enterprise -- i.e., its dealership that sells 

different policy language that excluded coverage for certain 

workers "[d]irectly or indirectly performing duties related to the 

conduct of any insured's business." Id. at *3, *6. Plainly, 

whether someone's work duties are "[d]irectly or indirectly . . . 

related to the conduct of any insured's business" is a 

substantially broader inquiry than whether that person is working 

in the insured's business. 
- 15 -

autos -- fully accomplishes this aim. Defendants, though, urge a 

broader reading of business to mean "business activity," which 

they construe to mean the activity of auctioning the Jeep. They 

then assume that that activity is a part of Nashua's activity of 

selling the Jeep. 

We see no reason to adopt such a broad reading. No 

reasonable insured that procured the policy would ordinarily have 

any interest in paying for a policy that provided coverage for 

another person who works for another unrelated seller of autos. 

Presumably, this is likely why neither Nashua -- which obtained 

the policy -- nor the insurer voices any support for construing 

the policy as deeming Hartwell or Lynnway to be an insured. 

Rather, the auto business that assumes control of the vehicle 

should turn to its own insurer to cover any losses. See Borden v. 

Progressive Direct Ins. Co., 30 N.E.3d 856, 858 (Mass. App. Ct. 

2015). And that is the precise situation here: Lynnway retained 

its own insurance policies, the providers of which have conceded 

the availability of coverage. It also strikes us as contrived to 

say that Hartwell was working in Nashua's business. Certainly, if 

asked at the time of the accident to name which business he worked 

in, he would not have said Nashua's. 

The fact that Hartwell was employed by and subject to 

the control of Lynnway reinforces our conclusion that he was not 

working in Nashua's business. Courts across the country recognize 
- 16 -

that the exclusion at issue here is "based on the assumption that 

the lack of control over the insured vehicle increases the risk to 

the owner's insurer." Borden, 30 N.E.3d at 857–58 (citing Haley

v. State Farm Mut. Auto. Ins. Co., 202 S.E.2d 838, 840 (Ga. Ct. 

App. 1973)); see also Grisham v. Allstate Ins. Co., 992 P.2d 891, 

893 (N.M. Ct. App. 1999) ("Lack of control increases risk to the 

owner's insurer, a risk that is neither included in the policy nor 

calculated in the premium charged to the owner."); Carney, 434 

S.E.2d at 378 (W. Va. 1993) (discussing same explanation supplied 

by 7 Am. Jur. 2d Automobile Insurance § 90 (1990)). If we were to 

conclude that the relevant business was a unitary "activity" of 

selling Nashua's cars, and that that "business" was Nashua's, then

the auto business exclusion would appear to be inapplicable in 

most of the circumstances for when its purpose would seem to make 

it applicable, at least when included in a garage coverage policy 

for auto dealers. One who uses with permission an insured dealer's 

vehicle in a "selling, servicing[,] or repairing" business would 

seemingly always be able to argue that their use also necessarily 

supported Nashua's business activity of selling autos. We 

specifically asked counsel for each set of defendants at oral 

argument to identify some situation in which, under their reading

of this policy's auto business exclusion and its exception, it 

would actually exclude coverage. Neither could do so. 
- 17 -

The Lynnway defendants respond that AutoFair or Nashua 

exerted some de facto control over the Jeep while it was being 

auctioned by Lynnway, due to certain features of the businesses' 

extensive commercial relationship, including that AutoFair had use 

of an office at Lynnway's premises and could make certain decisions 

about how its cars were sold. But nothing in the policy suggests 

that this type of control is equivalent to making the auction 

business Nashua's or AutoFair's business. On all occasions when 

a dealership permits another business to sell, service, or repair 

one of its vehicles, the dealer presumably always retains some 

control over the transaction. Exerting some influence over a 

business's operations through mutually beneficial commercial 

arrangements does not make that business "yours." Hence, we are 

still left with the conclusion that defendants' reading is wrong.6 

To be sure, defendants dispute the precise degree of 

"control" Nashua relinquished or retained over the disposition of 

the vehicle at auction, and by extension dispute whether the 

exclusion's normative underpinnings apply here. But this misses 

the forest for the trees. Regardless of whether Nashua had some 

input on whether and how its vehicle would be sold, defendants do 

not contest that Nashua surrendered the Jeep's keys to Lynnway so 

6 We hasten to add that nothing in this opinion bears on the 

entirely different question of whether the actions of the named 

insured Nashua render it liable to any defendants. 
- 18 -

that Lynnway's employee could drive the vehicle for its independent 

business of selling autos by auction.7 A reasonable entity in 

either party's position would not expect its own garage policy to 

cover another auto-selling business. 

Defendants marshal the same set of business-relationship 

facts in support of an argument concerning Nashua's "garage 

operations." The Primary Policy defines "garage operations" to 

include "all operations necessary or incidental to a garage 

business." Defendants argue that Lynnway's auction was "necessary 

and incidental" to Nashua's ability to sell its cars and thus part 

of its garage operations. This argument may have had some 

relevance were we considering the language of the exclusion before 

the New Hampshire Endorsement, as the original exclusion's 

exception read "unless that business is your 'garage operations.'" 

But seeing as that language has been modified by the endorsement 

to eliminate the reference to garage operations, and that 

defendants concede the endorsement applies, whether Lynnway's 

7 For the same reason, defendants' invocation of a 

Massachusetts statutory presumption that a vehicle's owner is 

legally responsible, in the event of an accident, for the conduct 

of the vehicle's driver, see Mass. Gen. Laws ch. 231, §§ 85A–B --

a presumption that can be rebutted by evidence to the contrary, 

see Cheek v. Econo-Car Rental Sys. of Bos., Inc., 473 N.E.2d 659, 

660–61 (Mass. 1985) -- also misses the mark even assuming New 

Hampshire law also recognized such a presumption.
- 19 -

auction was part of Nashua's "garage operations" simply has no 

bearing on the case now before us.8

Finally, the Lynnway defendants assert that our reading 

would create surplusage in the policy, specifically by reading out 

the different coverage treatment that the Primary Policy provides

for "employees" and "anyone else" using a covered auto. Not so. 

"Employees" are simply a subset of "anyone else," a category that 

includes everyone other than "[y]ou, your executives and . . . 

members (if you are a limited liability company)." While employees 

are subject to certain special provisions under the policy, Nashua 

employees driving Nashua vehicles are covered under the general 

provision that grants coverage to "[a]nyone else while using with 

your permission a covered 'auto' you own" -- and such employees 

are not subject to the auto business exclusion because the business 

they are working in is Nashua's. 

In sum, we find that the Primary Policy's auto business 

exclusion defines the policy's insureds so as to exclude Lynnway 

and Hartwell from coverage for the underlying claims here. We 

therefore need not take up the parties' alternative arguments 

concerning the Primary Policy's suspended license exclusion. 

8 For the same reason, we need not discuss defendants' 

argument that we ought reach the same outcome as Blue Ridge Auto 

Auction v. Acceptance Indemnity Insurance Co., which considered a 

version of the exclusion that retained the "unless that business 

is your 'garage operations'" formulation. 807 S.E.2d 51, 54 (Ga. 

Ct. App. 2017).
- 20 -

B.

Defendants next contend that the Umbrella Policy 

provides coverage for the underlying claims. This policy 

separately defines the insureds for its own purposes and excludes 

from that definition those employed by an "auto sales agency." 

Both groups of appellants argue this is an ambiguous term and so

should be construed narrowly to exclude only auto dealerships, 

which would presumptively leave Lynnway within the definition of 

insureds. Motorists points out that this particular argument was 

raised to but not addressed by the district court below. Rather, 

the district court agreed with Motorists' contention that the 

Umbrella Policy provides no coverage for the underlying claims

because it is limited by its Following Form Endorsement, which 

provides that the Umbrella Policy "does not apply" to auto coverage 

"[e]xcept as coverage is available to you in the underlying 

policies." See Motorists, 549 F. Supp. 3d at 230–31. Neither set 

of appellants discusses, much less contests, Motorists' contention 

or the grounds on which the district court decided the issue below. 

In the absence of any preserved challenge, we have no reason not

to assume that the district court was correct that the Umbrella 

Policy applies only to the extent auto coverage is provided in the 

Primary Policy. Id. at 230. Certainly the caselaw seems to 

provide comfort in making this assumption. See Jalbert ex rel. F2 

Liquidating Tr. v. Zurich Servs. Corp., 953 F.3d 143, 148 (1st 
- 21 -

Cir. 2020) (applying Massachusetts law in finding that the disputed 

policy was "a 'follow-form' policy . . . , meaning that coverage 

is subject to the terms and conditions of the primary policy"); 

Insituform Techs., Inc. v. Am. Home Assurance Co., 566 F.3d 274, 

278 (1st Cir. 2009) ("The phrase 'follow form' refers to the 

practice, common in excess policies, of having the second-layer 

coverage follow substantively the primary layer provided by the 

main insurer." (citing 2 Ostrager & Newman, Handbook on Insurance 

Coverage Disputes § 13.01 (11th ed. 2002))). Given that the 

underlying Primary Policy does not cover the claimed liabilities, 

we need linger no longer on the Umbrella Policy.

IV.

For the foregoing reasons, the judgment of the district 

court is affirmed.