UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SECURITY INSURANCE COMPANY OF 

HARTFORD,

Plaintiff,

and

ATLANTIC MUTUAL INSURANCE

COMPANY; COMMERCIAL UNION

INSURANCE COMPANY; FEDERAL

INSURANCE COMPANY; LIBERTY

MUTUAL INSURANCE COMPANY;

GENERAL ACCIDENT INSURANCE

COMPANY OF AMERICA; HARTFORD

FIRE INSURANCE COMPANY; VIGILANT

INSURANCE COMPANY, GREAT

NORTHERN INSURANCE COMPANY,

Intervenors-Appellants,  No. 00-1482

v.

NATIONSBANK, N.A.,

Defendant-Appellee,

and

ARCADE TEXTILES, INCORPORATED;

YORK COUNTY INDUSTRIES, LIMITED;

ABSOLUTELY TERRY COMPANY,

INCORPORATED; AMERICAN SPIRIT

INDUSTRIES, INCORPORATED; AMERICAN

SPIRIT FASHIONS, LIMITED, BARAS

JERSEY, INCORPORATED; BEATE

REALTY CORPORATION; BLOCK’S

FASHION FABRICS, INCORPORATED;

BRASKINGS INCORPORATED; BRITANNIA

MILLS, INCORPORATED; BROOKS 
TEXTILES, INCORPORATED; C&L OF 

NEW YORK CORPORATION; CHARLENE

FABRICS CORPORATION; CONTEMPORA

FABRICS, INCORPORATED; CREATIVE

FABRIC SERVICES, LLC; CYBER KNITS,

INCORPORATED; DYNASTY USA,

INCORPORATED; ESSEX FABRICS,

INCORPORATED; ETHNIX NEW YORK,

INCORPORATED; FABRIC AND FABRIC,

INCORPORATED; FAVRILE FABRICS OF

FLORIDA, INCORPORATED; KARMAR

FABRICS, INCORPORATED; KNIT IDEAS,

INCORPORATED; KUTTNER PRINTS,

INCORPORATED; LA CENTURY

TEXTILES, INCORPORATED; LEAMARK,

INCORPORATED; LIBA FABRICS

CORPORATION; PLAN B TEXTILES,

LLC; PAUL GOTTLIEB & COMPANY; 

PLAZA TEXTILE CORPORATION; RG

TEXTILE COMPANY, INCORPORATED;

RPJ SPORTSWEAR, INCORPORATED;

ROSS SPORTS WEAR, INCORPORATED;

SPANTECH FABRICS CORPORATION;

SPORTSWEAR, INCORPORATED;

STARENSIER, INCORPORATED;

STYLETEX, INCORPORATED; SUMMIT

KNITTING MILLS, INCORPORATED;

SWINGTIME, INCORPORATED; SYMPHONY

FABRICS CORPORATION; TODD

KNITTING CORPORATION; TRIPLE TEX

FABRICS; UNIVERSAL MFG

CORPORATION; VERATEX,

INCORPORATED,

Defendants, 

2 SECURITY INSURANCE CO. v. NATIONSBANK
ZURICH INSURANCE COMPANY, 

Intervenor-Defendant. 



SECURITY INSURANCE COMPANY OF 

HARTFORD,

Plaintiff,

and

ZURICH INSURANCE COMPANY,

Intervenor-Appellant,

v.

NATIONSBANK, N.A.,

Defendant-Appellee,

and

ARCADE TEXTILES, INCORPORATED;

YORK COUNTY INDUSTRIES, LIMITED;

A  No. 00-1501 BSOLUTELY TERRY COMPANY,

INCORPORATED; AMERICAN SPIRIT

INDUSTRIES, INCORPORATED; AMERICAN

SPIRIT FASHIONS, LIMITED, BARAS

JERSEY, INCORPORATED; BEATE

REALTY CORPORATION; BLOCK’S

FASHION FABRICS, INCORPORATED;

BRASKINGS INCORPORATED; BRITANNIA

MILLS, INCORPORATED; BROOKS

TEXTILES, INCORPORATED; C&L OF

NEW YORK CORPORATION; CHARLENE

FABRICS CORPORATION; CONTEMPORA

FABRICS, INCORPORATED; CREATIVE

FABRIC SERVICES, LLC; CYBER KNITS,

INCORPORATED; DYNASTY USA, 

SECURITY INSURANCE CO. v. NATIONSBANK 3
INCORPORATED; ESSEX FABRICS, 

INCORPORATED; ETHNIX NEW YORK,

INCORPORATED; FABRIC AND FABRIC,

INCORPORATED; FAVRILE FABRICS OF

FLORIDA, INCORPORATED; KARMAR

FABRICS, INCORPORATED; KNIT IDEAS,

INCORPORATED; KUTTNER PRINTS,

INCORPORATED; LA CENTURY

TEXTILES, INCORPORATED; LEAMARK,

INCORPORATED; LIBA FABRICS

CORPORATION; PLAN B TEXTILES,

LLC; PAUL GOTTLIEB & COMPANY;

PLAZA TEXTILE CORPORATION; RG

TEXTILE COMPANY, INCORPORATED;

RPJ SPORTSWEAR, INCORPORATED; 

ROSS SPORTS WEAR, INCORPORATED;

SPANTECH FABRICS CORPORATION;

SPORTSWEAR, INCORPORATED;

STARENSIER, INCORPORATED;

STYLETEX, INCORPORATED; SUMMIT

KNITTING MILLS, INCORPORATED;

SWINGTIME, INCORPORATED; SYMPHONY

FABRICS CORPORATION; TODD

KNITTING CORPORATION; TRIPLE TEX

FABRICS; UNIVERSAL MFG

CORPORATION; VERATEX,

INCORPORATED,

Defendants, 

4 SECURITY INSURANCE CO. v. NATIONSBANK
ATLANTIC MUTUAL INSURANCE 

COMPANY; COMMERCIAL UNION

INSURANCE COMPANY; FEDERAL

INSURANCE COMPANY; LIBERTY

MUTUAL INSURANCE COMPANY;

GENERAL ACCIDENT INSURANCE 

COMPANY OF AMERICA; HARTFORD

FIRE INSURANCE COMPANY; VIGILANT

INSURANCE COMPANY; GREAT

NORTHERN INSURANCE COMPANY,

Intervenors-Defendants. 

Appeals from the United States District Court

for the District of South Carolina, at Rock Hill.

Joseph F. Anderson Jr., Chief District Judge.

(CA-98-2545-0-17)

Argued: January 24, 2001

Decided: March 15, 2001

Before NIEMEYER and KING, Circuit Judges, and

David A. FABER, United States District Judge for the

Southern District of West Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: Peter W. Vogt, Charlotte, North Carolina, for Appellants.

James Wade Sheedy, SPENCER & SPENCER, P.A., Rock Hill,

South Carolina, for Appellee. ON BRIEF: Tracy Eggleston, Charlotte, North Carolina; John F. Blount, SWIFT, CURRIE, MCGHEE

& HIERS, Atlanta, Georgia, for Appellants. W. Chaplin Spencer, Jr.,

SECURITY INSURANCE CO. v. NATIONSBANK 5
SPENCER & SPENCER, P.A., Rock Hill, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

In this diversity action, the Intervenor-Appellants Atlantic Mutual

Insurance Company, et al. ("Appellants"),1 challenge the district

court’s award of partial summary judgment to appellee NationsBank.

The district court filed its Order granting partial summary judgment

on March 16, 2000; thereafter, on April 28, 2000, the court certified

its Order as immediately appealable under Rule 54(b) of the Federal

Rules of Civil Procedure.2 We agree with the analysis of the district

court, and we affirm its decision. 

1The nine Intervenor-Appellants are Atlantic Mutual Insurance Company, Commercial Union Insurance Company, Federal Insurance Company, General Accident Insurance Company of America, Great Northern

Insurance Company, Hartford Fire Insurance Company, Liberty Mutual

Insurance Company, Vigilant Insurance Company, and Zurich Insurance

Company. 

2We recognize that an award of partial summary judgment is not ordinarily a final order and, as such, not immediately appealable. In this case,

however, after Notices of Appeal were prematurely filed (on April 12

and April 17, 2000), the district court, on April 28, 2000, certified its

March 16, 2000 Order as a "final judgment" under Rule 54(b). See Harrison v. Edison Bros. Apparel Stores, Inc., 924 F.2d 530, 532 (4th Cir.

1991) (absent prejudice to appellee, district court may enter a 54(b) judgment after notice of appeal has been filed). Thus, in conformance with

Rule 4(b)(2) of the Federal Rules of Appellate Procedure, the prematurely filed notices of appeal are treated as filed on "the date of and after

the entry" of judgment. We accordingly possess jurisdiction over these

appeals pursuant to 28 U.S.C. § 1291. 

6 SECURITY INSURANCE CO. v. NATIONSBANK
I.

A.

On November 3, 1997, a fire destroyed a textile mill operated by

Arcade Textile, Inc. ("Arcade") in Rock Hill, South Carolina. Among

the items lost in the fire were a significant volume of "griege goods,"

which belonged to Arcade’s customers and were in various stages of

finishing. Arcade was insured under a policy (the "Policy") issued by

Plaintiff Security Insurance Company ("Security"). The Policy provided Arcade with $4.42 million in coverage for "Business Personal

Property," including coverage for the "personal property of others."

J.A. 92. Pursuant to the Policy, the phrase "personal property of others" was defined as "property of others that is in ‘your’ care, custody,

or control." Id.

As a result of the losses caused by the fire, more than twenty-five

of Arcade’s customers have claimed against the proceeds of the Policy. Together, the claims total several millions of dollars in excess of

the coverage provided Arcade under the Policy. In order to settle the

various issues arising from these claims, Security filed a Complaint

for Interpleader in the District of South Carolina, asking the court to

distribute the proceeds of the Policy. 

The nine Appellants insured fifteen of Arcade’s customers. In

accordance with those customers’ insurance policies, the Appellants

were called upon to reimburse their policyholders for the destruction

of the griege goods. The Appellants sought leave to intervene in the

interpleader proceedings in the district court, requesting contribution

under the Business Personal Property provisions of the Policy. On

August 6, 1999, NationsBank filed its Motion for Summary Judgment

in the interpleader action, seeking a ruling that the Appellants were

not entitled to contribution of any kind under the Policy.3 The district

court agreed with NationsBank on this point and issued its March 16,

2000 Order granting partial summary judgment. This appeal followed.

3NationsBank possesses a lien on Arcade’s personal property that was

damaged in the fire. It therefore was also a claimant on the proceeds of

the Policy. 

SECURITY INSURANCE CO. v. NATIONSBANK 7
B.

The Appellants assert that, because the coverage provided by the

Policy on the griege goods was concurrent with the coverage they

provided their policyholders for those same goods, they are entitled

to pro rata contribution from the proceeds of the Policy. Under South

Carolina law, concurrent insurance coverage exists if separate policies

insure (1) the same entity, (2) against the same risk, (3) to the same

object, (4) absent some express intent to the contrary ("total policy

insuring intent"). South Carolina Ins. Co. v. Fidelity and Guaranty

Ins. Underwriters, Inc., 489 S.E.2d 200, 203 (S.C. 1997) ("SCIC"). In

its Order, the district court analyzed the issues fully, and it found that

concurrent coverage did not exist because the Policy, on the one hand,

and the policies written by the Appellants, on the other, did not insure

the same entity. Specifically, the court ruled that "[a]lthough the coverage [of ‘personal property of others’ in the Policy] benefitted the

third parties, it was primarily for the benefit of Arcade." Order, at 6.

Additionally, the district court concluded that the "total policy

insuring intent" of both the Policy and the policies written by the

Appellants was that the losses involved should not be prorated. The

district court based this determination on three factors. First, it held

that the "policies are not on an equal footing" because they were

intended to insure different entities, namely, either Arcade or the

Appellants, but not both. Order, at 6, 7. Second, the district court

observed that the Appellants were "attempting to benefit from a policy on which they have not paid any premium." Id., at 7. Third, the

court reasoned that prorating "only benefits the intervenor insurance

companies." Id.; see SCIC, 489 S.E.2d at 204 (listing factors for

courts to consider in ascertaining intent of insurance policies). 

II.

We have fully considered the briefs and arguments of the parties,

and we agree with the district court. It properly concluded, applying

the law of South Carolina, that NationsBank was entitled to partial

summary judgment. We are therefore content to affirm on the reasoning of the district court’s Order of March 16, 2000. See Security Ins.

Co. of Hartford v. Arcade Textiles, Inc., No. CA-98-2545-17 (D.S.C.

Mar. 16, 2000).

AFFIRMED

8 SECURITY INSURANCE CO. v. NATIONSBANK