[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-10358

Non-Argument Calendar

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FRANKENMUTH MUTUAL INSURANCE COMPANY, 

Plaintiff-Appellant,

versus

BROWN'S CLEARING, INC., 

COURTNEY FORD, 

BREON FORD, 

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Alabama

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D.C. Docket No. 2:20-cv-00576-ECM-JTA

____________________

Before WILSON, LUCK, and LAGOA, Circuit Judges.

LAGOA, Circuit Judge:

This is a duty to defend insurance dispute brought by the 

insurer, Frankenmuth Mutual Insurance Company (“Frankenmuth”), seeking to reverse the district court’s determination that 

its insured, Brown’s Clearing, Inc. (“Brown’s Clearing”), is entitled 

to coverage under its policy. Frankenmuth, a Michigan corporation, appeals the district court’s order granting summary judgment 

in favor of Brown’s Clearing, Courtney Ford, and Breon Ford (collectively, “Appellees”). For the reasons discussed below, we affirm 

the district court’s judgment. 

I. FACTUAL AND PROCEDURAL HISTORY 

A. The Insurance Policy 

Brown’s Clearing is a land-clearing business incorporated in 

Alabama and registered to do business in Georgia. Kelley Brown 

and Steve Brown, a married couple, own Brown’s Clearing. Frankenmuth is an insurance company licensed to issue insurance policies in Alabama. On March 14, 2017, Frankenmuth issued a Commercial General Liability policy to Brown’s Clearing, effective from 

March 13, 2017, through March 13, 2018 (the “Policy”). On February 6, 2018, Frankenmuth and Brown’s Clearing renewed the Policy for another year, from March 13, 2018, through March 13, 2019. 

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The Policy provided general liability coverage and additional umbrella coverage. Pursuant to Section I of the Policy, Frankenmuth 

agreed to “pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property 

damage’ to which this insurance applies.” Section I also provides 

that Frankenmuth has the “right and duty to defend the insured 

against any ‘suit’ seeking those damages.” Further explaining those 

conditions, Section IV of the Policy provides:

Section IV – Commercial General Liability Conditions 

 2. Duties in The Event of Occurrence, Offense, Claim 

Or Suit 

 a. You must see to it that we are notified as soon 

as practicable of an “occurrence” or an offense 

which may result in a claim. To the extent possible, notice should include:

(1) How, when and where the “occurrence” or 

offense took place;

(2) The names and addresses of any injured 

persons and witnesses; and 

(3) The nature and location of any injury or 

damage arising out of the “occurrence” or offense.

b. If a claim is made or “suit” is brought against 

any insured, you must:

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(1) Immediately record the specifics of the 

claim or “suit” and the date received; and

(2) Notify us as soon as practicable.

You must see to it that we receive written notice of the claim or “suit” as soon as practicable.

c. You and any other involved insured must:

(1) Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the claim or “suit”;

. . . .

The Commercial Liability Plus endorsement modifies the terms of 

the Policy and provides as follows:

4. Duties in the Event of Occurrence, Claim or Suit 

 a. The requirement in condition 2.a. that you 

must see to it that we receive notice of an “occurrence” applies only when an “occurrence” is 

known to:

(1) You, if you are an individual;

(2) A partner, if you are a partnership; or 

(3) An executive officer or insurance manager 

if you are a corporation.

b. The requirement in condition 2.b. that you 

must see to it that we receive notice of a claim or 

“suit” will not be considered breached unless the 

breach occurs after such claim or “suit” is known 

to:

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(1) You, if you are an individual;

(2) A partner, if you are a partnership; or 

(3) An executive officer or insurance manager,

if you are a corporation.

Similarly, the Commercial Liability Umbrella Coverage states that 

Frankenmuth “will pay on behalf of the insured the ‘ultimate net 

loss’ in excess of the ‘retained limit’ because of ‘bodily injury’ or 

‘property damage’ to which this insurance applies.” Pursuant to 

Section IV of the Umbrella Coverage, the insured must notify 

Frankenmuth of occurrences that may result in a claim and of suits 

brought against the insured “as soon as practicable.” The Umbrella 

Coverage also states that:

c. You and any other involved insured must:

(1) Immediately send us copies of any demands, 

notices, summonses or legal papers received in 

connection with the claim or “suit”;

(2) Authorize us to obtain records and other information;

(3) Cooperate with us in the investigation or settlement of the claim or defense against the “suit”; 

and

(4) Assist us, upon our request, in the enforcement 

of any right against any person or organization 

which may be liable to the insured because of injury or damage to which this insurance may also 

apply.

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The Commercial General Liability contains the same language. 

The Policy defines “occurrence” as “an accident.” The Policy also defines “executive officer” as “a person holding any of the 

officer positions created by your charter, constitution, by-laws or 

any other similar governing document.” 

B. The Underlying Action and Coverage Dispute 

On July 20, 2018, Courtney Ford was travelling on Interstate 

75 in Bartow County, Georgia. While she was driving her car, 

workers were cutting trees along the side of the interstate. Suddenly, a tree limb struck the windshield of Courtney’s car and 

pierced the vehicle, resulting in injuries. Brown’s Clearing did not 

have employees cutting trees on Interstate 75, but it had hired S&S 

Diesel as a subcontractor to perform those services. No one from 

S&S Diesel ever told anyone from Brown’s Clearing about that accident. 

Then, on January 24, 2019, Courtney and Breon Ford (“the 

Fords”) sued Gunnison Tree Specialists, Inc. (“Gunnison”), and 

Georgia Power in the State Court of Cobb County, Georgia, alleging that the companies’ negligence caused the tree limb to hit 

Courtney’s car, resulting in injuries. The Fords sought compensatory, special, and punitive damages, along with a claim brought by 

Breon Ford for loss of consortium. 

 On February 11, 2019, during the discovery phase of the 

Ford lawsuit, Andrew Horowitz, an attorney representing Gunnison and Georgia Power, emailed Kelley Brown about a “request 

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for documents.” After Brown asked for an explanation, Horowitz 

responded on February 12, 2019:

I’m defending Georgia Power and Gunnison Tree in 

a suit filed by a motorist who claims that she was injured on 7/20/18. I understand that Brown’s Clearing had a tree crew alongside I-75 North that day, doing work for GDOT around Mile Marker 294. I 

wanted to give someone at Brown’s Clearing a headsup that I was about to serve a records request on your 

company’s GA registered agent. The request generally seeks docs relating to Brown’s Clearing’s work in 

that area between 7/18 and 7/20/18. When we serve 

the request, I’d be happy to send you a copy. My contact info is below, so feel free to call anytime if you or 

another Brown’s Clearing rep wants to talk.

On February 15, 2019, Brown’s Clearing provided the requested

information, showing where their equipment was located along Interstate 75 on the day of the accident. Kelley Brown testified that 

she “thought they wanted a witness or something, and so [she] just 

sent him the log.” 

On May 10, 2019, the Fords filed an amended complaint in 

the underlying state court action against Gunnison and Georgia 

Power that added Brown’s Clearing as a defendant. On May 16, 

2019, a process server tried to serve Brown’s Clearing’s authorized 

agent of process, Registered Agents, Inc. (“Registered Agents”), 

with summons, the amended complaint, interrogatories, and a request for production. Registered Agents then emailed Kelley 

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Brown at her email address on file with Registered Agents, notifying her of a delivered service of process document and a prompt to 

log into the computer system and review the document. The next 

day, because the documents had not been reviewed, Registered 

Agents sent another email stating that the “document we uploaded 

on your company’s behalf could be really important and we want 

to make sure you see it.” Two days later, another email was sent 

stating the same. On May 21, 2019, Registered Agents sent another 

email, stating:

It’s been 5 days and unfortunately, you haven’t 

logged into your account to look at it. We’re emailing it to you as a PDF attached to this email. We’d 

prefer you login to your online account because we 

believe that’s a more secure way to deliver documents, but maybe you don’t want to do that and we 

don’t want to slow you down. So here it is. 

Finally, Registered Agents mailed a physical letter to Brown’s 

Clearing requesting that someone open the account and view the 

documents. 

Brown’s Clearing was never served by hand or by mail with 

a copy of the amended complaint. In 2019, Kelley Brown, who 

served as a kind of office manager for the business, did not know 

what the phrase “service of process” meant. She did not open any 

of the four computer generated emails because she thought they 

looked like all previous emails she received from that account, 

which were all invoice and billing related emails. Brown had received over one hundred other emails from the Registered Agent 

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account between 2017 and 2020, almost all of which were invoices. 

Brown’s Clearing and Steve and Kelley Brown had never been sued 

before either as a business or personally. 

Unsurprisingly, Brown’s Clearing did not respond to the 

state court amended complaint, and the Fords filed a motion for 

entry of default judgment in the underlying action on July 19, 2019. 

That same day, Horowitz emailed Kelley Brown notifying her of 

the motion for default judgment and suggesting that she contact 

Brown’s Clearing’s liability carrier to let them know of the lawsuit. 

Kelley Brown stated that this email from Horowitz was the first 

time she had ever heard of the lawsuit. The Georgia state court 

denied the Fords’ motion for default judgment, finding that service 

was “without effect” because the process server was not properly 

appointed. Several days after she received the email from Horowitz, Kelley Brown reported a claim online to Frankenmuth regarding the underlying action. Randy Eichhorn, a claim senior litigation examiner with Frankenmuth, stated that Kelley Brown reported a claim to Frankenmuth on July 26, 2019. 

On August 7, 2020, Frankenmuth filed a complaint for declaratory judgment against Brown’s Clearing, seeking a judicial determination about whether Frankenmuth had a duty to defend and 

indemnify Brown’s Clearing in the underlying litigation before the 

Georgia state court. On September 20, 2020, the Fords filed a motion for joinder as an indispensable party, which the district court

granted. The parties subsequently cross-moved for summary judgment. Brown’s Clearing and the Fords argued: (1) that Brown’s 

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Clearing did not know about the underlying lawsuit until July 19, 

2019, notified Frankenmuth about the action as soon as practicable,

and is therefore entitled to coverage under the Policy; and (2) that 

economic losses are covered under the Policy. Frankenmuth argued: (1) that Brown’s Clearing knew about the accident in February 2019 and the underlying action in May 2019; (2) that Brown’s 

Clearing failed to notify Frankenmuth “as soon as practicable” pursuant to the Policy; and (3) that Brown’s Clearing failed to give 

Frankenmuth “written notice” as it failed to forward the summons 

and legal papers. 

 On January 4, 2022, the district court granted summary judgment in favor of Brown’s Clearing and the Fords, agreeing with the 

position of Brown’s Clearing. In reaching that conclusion, the 

court interpreted the word “known” in the Policy’s notice requirements to require a Brown’s Clearing executive officer to have actual knowledge of the occurrence, claim, or suit. The court explained that “[v]iewing the evidence in the light most favorable to 

Frankenmuth and drawing all reasonable inferences in its favor,” 

no reasonable jury could conclude that the e-mail.

exchange with Horowitz or a certificate of liability insurance as to 

the subcontractor demonstrated that Brown’s Clearing had actual 

knowledge of the accident in February 2019. The court also found 

that Brown’s Clearing provided written notice of the claim and did 

so “as soon as practicable.” 

Frankenmuth timely appealed. 

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II. STANDARD OF REVIEW 

We review de novo the resolution of cross-motions for summary judgment. Am. Bankers Ins. Grp. v. United States, 408 F.3d 

1328, 1331 (11th Cir. 2005). In doing so, we apply the same standards used by the district court, assessing the evidence and all reasonable inferences in the light most favorable to the non-moving 

party. Ramji v. Hosp. Housekeeping Sys. LLC, 992 F.3d 1233, 1241 

(11th Cir. 2021).

III. ANALYSIS 

On appeal, Frankenmuth argues that Brown’s Clearing is 

not entitled to coverage under the Policy based on its breach of 

duties after loss, particularly because Brown’s Clearing failed to notify Frankenmuth of the underlying action in a timely fashion. Appellees argue that the district court was correct in ruling that Frankenmuth owed a duty to defend and indemnity because Brown’s 

Clearing did not have knowledge of the underlying action until July 

19, 2019, after which notice was given to Frankenmuth soon 

enough after to comply with the terms of the Policy. 

Under the Commercial General Liability Conditions section 

of the Policy, Brown’s Clearing was required to “[s]ee to it that 

[Frankenmuth] is notified as soon as practicable of an ‘occurrence’ 

. . . which may result in a claim.” Similarly, the Policy requires 

Brown’s Clearing to “[n]otify [Frankenmuth] as soon as practicable” if a “claim or ‘suit’ is brought against any insured.” Those conditions are breached only if Brown’s Clearing failed to provide such 

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notice when “an ‘occurrence’ is known to . . . [a]n executive officer,” or when a “claim or ‘suit’ is known to . . . [a]n executive 

officer.” (Emphasis added). The parties primarily dispute the 

meaning of the word “known.” Before determining whether 

Brown’s Clearing complied with the obligations under the Policy, 

we must first resolve that dispute.

Construction of an insurance contract is a question of law 

we review de novo. Tech. Coating Applicators, Inc. v. U.S. Fid. & 

Guar. Co., 157 F.3d 843, 844 (11th Cir. 1998). The construction of 

insurance contracts is governed by substantive state law. Dempsey 

v. Auto Owners Ins. Co., 717 F.2d 556, 559 (11th Cir. 1983); see also 

Tech. Coating, 157 F.3d at 844–45. In this case, the parties have 

agreed that Alabama substantive law applies. Insurance policies are 

contracts, and like other contracts, they are “governed by the general rules of contracts.” Twin City Fire Ins. Co. v. Alfa Mut. Ins. 

Co., 817 So. 2d 687, 691 (Ala. 2001). We must construe the policy 

to give effect to the intention of the parties. Id. Under Alabama 

law, “[i]f a word or phrase is not defined in [an insurance] policy, 

then the court should construe the word or phrase according to the 

meaning a person of ordinary intelligence would reasonably give 

it.” Travelers Cas. & Sur. Co. v. Alabama Gas Corp., 117 So. 3d

695, 700 (Ala. 2012) (alteration in original) (quoting Safeway Ins. 

Co. of Ala., Inc. v. Herrera, 912 So. 2d 1140, 1143 (Ala. 2005)). “The 

court should not define words it is construing based on technical 

or legal terms.” Safeway Ins. Co., 912 So. 2d at 1143.

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In the Policy, the notice requirement is triggered when a suit 

is “known” to an executive officer or insurance manager. “Known” 

is used as a verb in the past tense of “know”, which is defined as 

“[t]o recognize, acknowledge, perceive.” Know, Oxford English 

Dictionary (3d ed. 2010); see also Known, Oxford English Dictionary (3d ed. 2010) (“That has become an object of knowledge; that 

is or has been apprehended mentally; learned; familiar;”). Frankenmuth urges us to adopt a Merriam-Webster definition of 

“known” to mean “generally recognized”. Such a definition implies not whether information is known to an individual but rather 

whether information is widely known among a certain population. 

Certainly, the Policy addresses whether an occurrence is specifically recognized by an individual or partner, not whether it is generally recognized. Instead, we agree with the district court’s determination that, to an ordinary person, the word “known” means 

“actually known.” If a fact is “known” to a person, it is reasonable 

to assume that person has actual knowledge of the fact. 

As the district court noted, Frankenmuth and Brown’s 

Clearing were free to contract with the phrases “should have 

known,” “had reason to know,” or “would be likely to have 

known,” but they did not––rather, they chose the term, “known.” 

We will not change the language of their agreement now. Additionally, while we find none, even if there existed a genuine ambiguity around the meaning of “known” in this contract, we would 

be directed to construe such ambiguity “liberally in respect to persons insured and strictly with respect to the insurer.” Crossett v. 

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St. Lous Fire & Marine Ins. Co., 269 So. 2d 869, 873 (Ala. 1972). For 

purposes of evaluating Brown’s Clearing’s compliance with the 

Policy, we will construe “known” to mean that an executive officer 

must have had actual knowledge of the occurrence, claim, or suit. 

When did an executive officer of Brown’s Clearing have actual knowledge of the underlying occurrence and action? Appellees contend that no executive officer at Brown’s Clearing had actual knowledge of the underlying action before July 19, 2019, when 

Horowitz emailed Kelley Brown about the motion for default judgment. Frankenmuth argues that Brown’s Clearing knew of the suit 

on May 16, 2019, when its authorized agent, Registered Agents, 

was served with process. According to Frankenmuth, because Registered Agents was served with process, Brown’s Clearing “knew” 

of the lawsuit at the same time. Instead of wading into questions 

of agency law and constructive knowledge, as Frankenmuth suggests, we need only look at the language of the parties’ agreement. 

The Policy does not state that a suit being “known” to a registered 

agent is imputed to an executive officer. In fact, the Policy explicitly states that the notice requirement is triggered “only” when a 

suit is “known” to certain individuals––“[a]n executive officer or 

insurance manager.” Again, the parties could have added “registered agent” to that list, but they did not. Given the language of 

the Policy and the record, the district court was correct in finding 

that the date triggering Brown’s Clearing’s duty to provide notice 

to Frankenmuth was July 19, 2019. 

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The next question before us is whether Brown’s Clearing 

notified Frankenmuth “as soon as practicable,” as required by the 

Policy. Kelley Brown gave notice of the underlying action to 

Frankenmuth seven days after learning about the suit, on July 26, 

2019. Because Frankenmuth focuses on the reasonableness of the 

delay assuming Brown’s Clearing had the obligation to notify starting May 16, 2019, Frankenmuth makes no argument that a sevenday delay would fail to meet the Policy’s requirements. Thus, the 

delay between when Brown’s Clearing triggered the notice requirement and when Brown’s Clearing provided notice did not 

constitute breach of duty under the Policy.1

Frankenmuth also argues that Brown’s Clearing violated the 

cooperation clauses in the Policy, referring to the provisions 

1 Frankenmuth also argues two points that may not have been properly preserved for appeal. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 

1324, 1331 (11th Cir. 2004) First, Frankenmuth argues for the first time, beyond a footnote in its summary judgment briefing, that the mailbox rule applies to the letter sent by Registered Agents to Brown’s Clearing, implying receipt. Even applying the mailbox rule, the letter only repeated the language 

from the emails and did not contain the actual complaint. So receipt of the 

letter would not impute knowledge on Brown’s Clearing any more than the 

emails did. Second, Frankenmuth argues for the first time that willful blindness supports a finding of actual knowledge. Aside from arguing that Brown’s 

Clearing cannot “wear ‘blinders’” and claim ignorance, nowhere below did 

Frankenmuth argue that Brown’s Clearing was engaged in willful blindness so

as to impute actual knowledge. Thus, this argument is not properly before 

this Court. Even if it were, the record does not support an inference that Kelley Brown was deliberately ignoring occurrences and claim notices. Rather, 

she testified that she thought they were invoices. 

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requiring that the involved insured must “send us copies of any demands, notices, summonses or legal papers received in connection 

with the claim or ‘suit.’” Because Brown’s Clearing was provided 

a copy of the summons and complaint via email on May 21, 2019, 

but did not send it to its insurer, Frankenmuth contends that 

Brown’s Clearing breached these provisions and is therefore not 

entitled to defense or indemnification. That argument fails. First, 

even though the cooperation clauses do not explicitly mention a 

knowledge requirement, Frankenmuth’s reading of the contract 

would imply a duty to provide information of which Brown’s 

Clearing has no actual knowledge. Instead, a more logical understanding of the Policy as a whole reads the requirement that the 

insured send copies of any demands, notices, summonses or legal 

papers as an instruction on cooperation after a notice of an underlying occurrence or suit has been sent. Indeed, interpreting the 

Policy in a way to find that the parties agreed to require cooperation on a suit of which neither Frankenmuth nor Brown’s Clearing 

had any awareness would be a bizarre conclusion. Second, the record shows that the summons and complaint were served in a failed 

attempt to effect proper service and were thus “without effect.” If 

the summons and complaint were not properly received by 

Brown’s Clearing, they could not have had a duty to send them to 

Frankenmuth. 

Frankenmuth’s final argument, made in one paragraph at 

the end of its brief, is that Brown’s Clearing violated the Policy’s 

mandate that “[y]ou must see to it that we receive written notice 

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of the claim or ‘suit’ as soon as possible.” According to Frankenmuth, Brown’s Clearing violated this provision because it “provided no evidence that it provided written notice to Frankenmuth–

–i.e. never provided a copy of the written notice of proof.” Frankenmuth appears to argue that because Kelley Brown’s testified that 

she submitted the claim “online,” it was not “written notice” pursuant to the policy. Frankenmuth points to no evidence that 

Brown’s Clearing’s notice was not in writing nor in the incorrect 

format. Thus, there is no genuine dispute about whether Brown’s 

Clearing provided written notice and no violation of the Policy. 

Thus, this argument must fail. 

Accordingly, the district court did not err in finding that 

Brown’s Clearing did not violate any provisions of the Policy and 

was thus entitled to coverage under that Policy with Frankenmuth.

IV. CONCLUSION 

For all these reasons, we affirm the district court’s order 

granting summary judgment for Brown’s Clearing and the Fords.

AFFIRMED.

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