NOT RECOMMENDED FOR PUBLICATION File Name: 22a0090n.06

Case No. 21

- 5663

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

GRANGE INSURANCE COMPANY

,

Plaintiff

- Appellee

,

v.

THE STEVE TOLLEY AND PAM NELSON JOINT VENTURE, et al

. ,

Defendants

- Appellants

. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

B efore : BATCHELDER

, GIBBONS, and GRIFFIN

, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge. After Steve Tolley was hit by an uninsured

motorist while biking, he sought insurance coverage from Grange Insurance Company. Grange

sued for a declaratory judgment in federal court that Tolley’s acci dent was not covered under the

policy. The district court granted summary judgment to Grange. Tolley appeals. We affirm.

I

On April 10, 2019, an SUV hit Tolley while he was riding a bicycle

. Tolley sent a demand

letter to Grange seeking uninsured motorist coverage. Grange then brought a declaratory judgment

action, seeking a declaration that Tolley’s accident was not covered under the relevant insurance

policy.

The subject insurance policy wa s issued by Grange on October 29, 201 8

, for coverage

through October 4, 2019. The parties dispute who the “Named Insured” is under the policy. TheNo. 21

- 5663, Grange Ins. Co. v. Tolley, et al.

- 2

-

policy lists “STEVE TOLLEY PAM NELSON” under Named Insured and identifies the “Named

Insured’s Legal Entity ” as “Joint

- Venture.” DE 1

- 1, Policy, Page ID 10. The policy type is

“Commercial Auto” and the reason issued is “New Business.” Id. The policy has a “Schedule of

Coverages and Covered Autos” in which it lists types of coverages next to a covered auto s ymbol.

Id. Next to “Uninsured Motorists,” the policy lists “07” as the covered auto symbol , which is the

same symbol listed for the other types of coverages

. Id. The policy explains that “7” symbolizes

“Specifically Described ‘Autos’” which are “[o]nly those ‘autos’ described in Item Three of the

Declarations for which a premium charge is shown.

. . . ” Id. at 24. Under Item Three , the policy

lists two specific vehicles and a trailer owned by Tolley and Nelson

. The district court determined that the po licy was issued to a joint venture comprised of

Tolley and his wife, Pam Nelson. Although t he district court found that the policy was issued to

the joint venture, rather than to Tolley and Nelson as individuals, it further held that the policy

provided c overage to Tolley as a member of the joint venture. T he court found , however, that his

bicycle accident was not covered because he was not operating a vehicle listed in the policy.

Therefore, the district court granted summary judgment to Grange. Tolley 1 appeals, arguing the

policy was issued to him individually, not to the joint venture.

II

We first address this court’s jurisdiction. In its complaint, Grange alleged the district court

had diversity jurisdiction under 28 U.S.C. § 1332. Grange properly alleged it was an Ohio

corporation, but it failed to establish the citizenship of the defen dants, improperly relying on

residency alone to establish domicile. See Prime Rate Premium Fin. Corp. v. Larson , 930 F.3d

1 Tolley, Nelson, and the joint venture all appeal but for ease of discussion, we only refer to Tolley as representativ e of appellants

.No. 21

- 5663, Grange Ins. Co. v. Tolley, et al.

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759, 765 (6th Cir. 2019). Under 28 U.S.C. § 1653, parties may cure defective allegations of

jurisdiction on appeal. This court orde red supplemental briefing on jurisdiction and t he parties

established that the defendants were citizens of Tennessee at the time of the complaint. As there

is diversity jurisdiction , we turn to the merits.

II I

We review the district court’s grant of su mmary judgment de novo

. Pearce v. Chrysler

Grp. LLC Pension Plan , 893 F.3d 339, 345 (6th Cir. 2018). Summary judgment is appropriate

only when there is no genuine issue of material fact, and the moving party is entitled to judgment

as a matter of law. C elotex Corp. v. Catrett , 477 U.S. 317, 322

– 23 (1986) ; Fed. R. Civ. P. 56(a)

. Federal courts sitting in diversity jurisdiction “are to apply state substantive law and federal

procedural law.” Hanna v. Plumer , 380 U.S. 460, 465 (1965). Therefore, we apply the substantive

law of Tennessee, the forum state. See Pennington v. State F arm Mut. Auto. Ins. Co. , 553 F.3d

447, 450 (6th Cir. 2009).

I V

Tolley raises two issues with the district court’s order : (1) who is covered under the policy;

and (2) whether the bicycle accident is covered under the policy. Under Tennessee law, “[a]n

insu rance policy is a contract” and analysis is therefore “ grounded in principles of contract law

. ”

Christenberry v. Tipton , 160 S.W.3d 487, 492 (Tenn. 2005). “An insurance policy must be

interpreted fairly and reasonably, giving the language its usual and o rdinary meaning.” Naifeh v.

Valley Forge Life Ins. Co. , 204 S.W.3d 758, 768 (Tenn. 2006).No. 21

- 5663, Grange Ins. Co. v. Tolley, et al.

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- A

The district court first considered to whom the policy was issued and concluded it was the

joint venture of Steve Tolley and Pam Nelson. Tolley argues this was error because the policy

was issued to him individually, not as a member of the joint venture.

Looking at the plain language, the district court noted that the policy listed the named

insured as “Steve Tolley Pam Nelson” and identified the named insured’s legal entity as a joint

venture. DE 63, Order, Page ID 372. The court then explained that a j oint venture under Tennessee

law is treated like a partnership and “is not viewed as a separate legal entity from its members.”

Id. (citing Hardy v. Miller , 2001 WL 1565549, at *4 n.2 (Tenn. Ct. App. Dec. 10, 2001) ).

Therefore, it was not unusual for the joint venture to be identified by its members in the policy.

As further support that the policy was issued to the joint venture, the policy “states it is a

commercial auto policy issued to a newly formed business.” Id. at 373. Looking at the policy as

a whole, the district court concluded “the policy in question can only be reasonably interpreted as

creating an insurance policy for the benefit of a business, specifically the joint venture comprised

of Steve Tolley and Pam Nelson [

. ] ” Id. at 374.

Tolley argues this conclusion was error because the policy expressly issued to him

individually and

, to the extent the policy is ambiguous, it should be interpreted in his favor

. Looking only to the part of the policy that lists his and his wife’s name s under “N amed Insured,”

Tolley argues the policy expressly covers him as an individual. However, “[t]he entire written

agreement must be considered.” Maggart v. Almany Realtors, Inc. , 259 S.W.3d 700, 704 (Tenn.

2008). Tolley ignores that on the same page

, the policy : (1) identifies the named insured’s legal

entity as a joint venture ; (2) describes the policy as a commercial auto policy; and (3) states the

reason the policy was issued was for a new business . Given the clear language in the policy thatNo. 21

- 5663, Grange Ins. Co. v. Tolley, et al.

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it c overs a joint venture and that the joint venture is comprised of Steve Tolley and Pam Nelson

(the names listed in the policy), the district court correctly found the insurance policy wa s issued

to the joint venture.

Tolley also argues that if the policy is ambiguous, it should be interpreted in his favor.

When a policy is ambiguous, it must be construed against the insurance company and in favor of

the insured

. See Tata v. Nichols , 848 S.W.2d 649, 650 (Tenn. 1993). “Where language in an

insurance policy is susceptible of more than one reasonable interpretation .

. . it is ambiguous.” Id.

However, a policy is not ambiguous simply because the parties disagree about its meaning.

Maggart , 259 S.W.3d at 704. “The court will not use a strained construction of the language to

find an ambiguity where none exists.” Id. Given that the policy clearly states it is for a joint

venture with Steve Tolley and Pam Nelson, there is no ambiguity in the named insured. Tolley

tries to create ambiguity by arguing that th e district court’s interpretation conflict s with his name

listed under “Named Insured

, ” but there is no conflict where Steve Tolley and Pam Nelson are the

members of the joint venture and do not have a separate name for the legal entity.

B

T he district cou rt determined that Tolley wa s covered under the policy as a member of the

joint venture, but it held that the bicycle accident did not fall under the policy because the policy

covers only specified vehicles. Tolley argues this was error because he had “underinsured

motorist” cover age individually

. CA6 R. 14

- 1, Appellant Br., at 2, 11

– 13. Because we have

already found Tolley was covered as a member of the joint venture, his argument is without merit.

Further, the policy scope clearly does not cover hi s bicycle accident.

In the policy, “Uninsured Motorists” coverage is coded with “07” under “Covered Auto

Symbols.” DE 1

- 1, Policy, Page ID 10. This code corresponds with “Specifically DescribedNo. 21

- 5663, Grange Ins. Co. v. Tolley, et al.

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‘Autos’” meaning coverage applies only to vehicles listed i n Item Three of the policy, which in

this case are two cars and a trailer. Id. at 11, 24. I n the section of the policy on uninsured motorists

coverage, the policy explains “Who Is An Insured.” Id. at 38. If the named insured is a

“partnership, limited liability company, corporation or any other form of organization ,” then

insureds are anyone occupying a covered auto or a temporary substitute for a covered auto, anyone

that suffered bodily injury from another insured, and the named insured for property d amage. 2 Id.

at 38

– 39. The policy clearly declares the named insured is a joint venture, falling under the

“partnership” or “organization” part of the policy. Id. at 10. When the SUV hit Tolley, he was

not occupying a covered auto or a temporary substitute for a covered auto. Nor is he claiming

bodily injury from another insured under the policy or property damage. Therefore, the bicycle

accident is not covered under the policy, as the district court concluded.

Tolley argue s this result conflicts with Dupree v. Doe , 772 S.W.2d 91 0 (Tenn. Ct. App.

1989)

. The Dupree court considered an insurance policy that limited uninsured motorist coverage

to accidents in which the insured suffered bodily injury while occupying a motor vehicle. 772

S.W.2d at 910. The insured was struck while riding a bicycle and argued the insur ance policy

conflicted with Tennessee law. Id. Tennessee Code Annotated § 56

- 7

- 1201(a) requires that

insurance policies provide insureds with uninsured motorist coverage

. Id. Section 56

- 7

- 1205

allows for limitations on uninsured motorist coverage which are designed to avoid duplication of

insurance. Id. at 910

– 11. The Tennessee Court of Appeals held that limiting uninsured motorist

coverage for the plaintiff to injuries received whil e operating a motor vehicle did not comply with

§ 56

- 7

- 1205. Id. at 911.

2 In comparison, if the named insured is an individual, insured includes: the named insured and family members, anyone occupying a covered auto or substitute for a covered auto, and anyone that suffered bodily injury from another insured.No. 21

- 5663, Grange Ins. Co. v. Tolley, et al.

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The district court distinguished Dupree from this case, explaining it did not “interpret

Dupree as compelling every auto policy written to cover damages incurred where a covered party

is riding a bicycle but rather it holds that if there would have been a duty to provide liability

coverage for the incident that there is a corresponding duty to provi de uninsured coverage.” DE

63, Order, Page ID 376

– 77. This is supported by the language of Dupree
, whe re it quoted the

Tennessee Supreme Court: “[I]t seems to us that the General Assembly has expressed its intention

that all damages which can legally be recovered under a liability policy shall be recoverable under

an uninsured motorist policy.” 772 S.W.2d at 911 (quoting Mullins v. Mille r, 683 S.W.2d 669
,

670 (Tenn. 1984) (superseded on other grounds) ). The Grange policy does not conflict with

Dupree because the policy limits coverage to specified vehicles across the board for uninsured

motorists and other types of liability. To interpret the policy as requiring coverage for the bicycle

accident would be to provide Tolley coverage beyond what t he joint venture purchased.

This interpretation of Dupree was confirmed by the Tennessee Court of Appeals in

Holloway v. Purdy

, 2009 WL 1362319 (Tenn. Ct. App. May 15, 2009). In Holloway

, the plaintiff s ’

body shop was insured under a garage owner’s policy

. Id. at *1. The policy limited uninsured

motorist coverage to vehicles that were listed in the policy and owned by the plaintiff. Id. While

driving a customer’s car, one of the plaintiff s was hit by an uninsured motorist. Id. The insurance

company argued there was no coverage because the plaintiff was not operating a covered vehicle.

Id. The Tennessee Court of Appeals agreed, finding no conflict with Tennessee law on uninsured

motorist coverage. Id. at *4

– 6.

Therefore, the district court did not err in finding Tolley’s bicycle accident was not covered

under the Grange insurance policy.No. 21

- 5663, Grange Ins. Co. v. Tolley, et al.

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- V

The district court properly interpreted the insurance policy to conclude that the policy was

issued to the joint venture of Steve Tolley and Pam Nelson. Further, the policy was limited to

covered vehicles. Because Tolley was not operating a covered vehicle when the accident occurred,

the policy does not provide coverage. Therefore, we affirm

.