[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

_________________________ No. 13

- 14413

________________________ D.C. Docket No. 1:11

- cv - 0 0236

- AT
TRAVELERS PROPERTY CASUALTY CO MPANY OF AMERICA , Plaintiff

- Appellant,

versus JUSTIN MAURICE MOORE , WILLIE THACKSTON, THE ESTATE OF BRANDON THOMAS, BRANDY THOMAS, surviving spouse of Brandon Thomas, deceased, Defendants

- Appellees.

________________________ Appeal from the United States District Court for the Northern District of Georgia

________________________ _

__ (August 14, 2014) Before JORDAN, Circuit Judge, and BARTLE , * and BERMAN , ** District Judges.

* The Honorable Harvey Bartle III, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
** The Honorable Richard M. Berman, United States District Judge for the Southern District of New York, sitting by designation.

Case: 13-14413 Date Filed: 08/14/2014 Page: 1 of 152 BARTLE, District J udge : P laintiff Travelers Property Casualty Company of America (“Travelers”) seeks a declaratory judgment that there is no coverage for and thus no duty to indemni f y defendant Justin Maurice Moore (“Moore”) under his employer’s commercial automobile insurance policy (Travelers Policy No. TC2JCAP

- 101D6235) for an i ncident which is the subject of underlying tort action s pending in the Georgia state court. See 28 U.S.C. §§ 1332(a) and 2201. In th ose action s , Moore is being sued for killing Brandon Thomas (“Thomas”) and wounding Willie Thackston (“Thackston”) with a shotgun while Moore was chasing them in his employer’s van as they were in the process of repossessing Moore’s car. Moore, Thackston, the E state of Brandon Thomas, and Thomas’s surviving spouse, Brandy Thomas, all parties in the state court action s , are the defendants here. 1
The District Court first granted partial summary judgment in favor of the defendants and against Travelers . It determined as a matter of law that Moore had permission to use the van at the time of the incident and thus was an insured under the policy. It then found , after a non - jury trial, that the death of Thomas and shooting of Thackston was an “ accident” as that term is used in the Travelers policy and that Moore neither “expected” nor “intended” Thomas’s death or Thackston’s injuries

. As a result of

1 Moore has not answered or otherwise made an appearance in the instant lawsuit

. Allison Thackston is also a plaintiff in the underlying lawsuit in which Willie Thackston is a plaintiff, but she has not been named as a defendant in this action.

Case: 13-14413 Date Filed: 08/14/2014 Page: 2 of 153 these decisions, the District Court declared that coverage existed. Judgment was entered accord ingly in favor of the defendants and against Travelers, and Travelers has now appealed.
I
T

he decision of a district court on summary judgment is reviewed de novo

. Layton v. DHL Exp ress (USA), Inc. , 686 F.3d 1172, 1175 (11th Cir. 2012). Summary judgment is appropriate “if the movant shows that 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); see also Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). When ruling on a motion for summary judgment, “ w e resolve all ambiguities and draw reasonable factual inferences from the evidence in the non

- movant’s favor

. ” Layton , 686 F.3d at 1175 (citing Rice

- Lamar v. City of Fort Lauderdale , 232 F.3d 836, 840 (11th Cir. 2000)). With regard to the bench trial, we review the District C ourt ’ s findings of fact on a clear error standard and its conclusions of law de novo

. Crystal Entm’t & Filmworks, Inc. v. Jurado , 643 F.3d 1313, 1319 (11th Ci r. 2011). “ Under the clear error standard, we may reverse the district court ’ s findings of fact if, after viewing all the evidence, we are left with the definite and firm conviction that a mistake has been committed. ” Id. at 1319

–20 ( internal quotation marks omitted).

Case: 13-14413 Date Filed: 08/14/2014 Page: 3 of 154 II The facts relevant to this appeal are largely undisputed

. 2 On November 12, 2009 , Thackston and Thomas arrived at Moore’s home in Atlanta in a tow truck seeking to repossess Moore’s personal vehicle, a Ford Mustang. The Mustang was parked in the driveway along with a van provided to Moore by his employer, GTECH Corporation (“GTECH”). Upon arrival at Moore’s residence , Thomas knocked on the door and had a conversation with the person who answered , after which Thomas and Thackston proceeded to attach the Mustang to the tow

- boom of their truck. As they were doing so , Moore appeared outside with a loaded sawed

- off shotgun and fired a sh ot into the air. The weapon was a pump - action model, which requires the shooter man ually to cycle the action between each firing to eject the spent shell casing and chamber a new cartridge

. Moore f ired t hree more rounds , two of which hit the boom of the tow truck

. The last shot blew out the truck’s front, passenger

- side tire. Beating a hasty retreat , Thackston drove
away on the flat tire with Thomas in the passenger’s seat and the Mustang in tow. Moore retrieved the keys to the GTECH van and gave chase, during which he point ed the shotgun out of the driver

- side window

. W hen Thackston realized that Moore was in pursuit , he began swerving the truck back and forth across the road, hoping to prevent the van from coming alongside for

2 By s tipulation of the parties, the facts are derived mainly from the record in the criminal case in which Moore was prosecute d for the same conduct described here

.

Case: 13-14413 Date Filed: 08/14/2014 Page: 4 of 155 another shotgun blast. Despite these maneuvers, the GTECH van drew up to the truck’s passenger side as the vehicles entered a cul

- de

- sac . The truck contacted the van at between twenty

- five a nd thirty

- five miles per hour, and t he shotgun went off a fifth and final time

. While the District Court found that Moore shot his victims un intentionally , it is undisputed that the weapon fired because Moore had his finger on the trigger

. Th e blast killed Thomas, and Th ackston sustained non

- fatal wounds

. Moore fled the scene in the van and returned shortly thereafter. Bra ndishing his shotgun, h e compelled Thackston to
l ower the Mustang off of the tow

- boom. Moore fled in the car , and Thackston hid in the woods nearby

. Moore was apprehended in the following days. On December 6, 2010, a jury found Moore guilty of felony murder , aggravated assault with a deadly weapon , and other associated offenses

. 3 H e was sentenced to life imprisonment , and t he Supreme Court of Georgia affirmed. See Moore v. State , 7 54 S.E.2d 333, 335 (Ga. 2014). 4
On June 10, 2008 before taking possession of the van, Moore signed a GTECH Fleet Policy Acknowledgment Form. He acknowled ged reading the GTECH

3 Moore was also convicted of fleeing and attempting to elude police and possession of a firearm during the commission of a felony. T he jury acquitted on charges of murder (causing the death of another with malice aforethought), voluntary manslaughter (causing the death of another in a sudden passion in response to serious provocation), and involuntary manslaughter (causing the death of another unintentionally either by reckless conduct or by pointing a firearm at the victim) as those charges were defined in the instructi ons to the jury

. 4 The affirmance by the Georgia Supreme Court was ca lled to this C ourt’s attention during the oral argument on this appeal.

Case: 13-14413 Date Filed: 08/14/2014 Page: 5 of 156 Corporation Fleet Policy especially as it pertained to “complying with restrictions on personal use of the company vehicle.” The Acknowledgmen t Form also contained , above his signature, a check mark beside the words “Personal Use Not Authorized.” The Corporate Fleet P olicy, which Moore confirmed he had read, stated , “Non

- exempt employees are provided a vehicle as a tool to do the job, and are n ot permitted to use the vehicle for personal use.” According to the testimony of James Benton, Moore’s immediate supervisor who had witnessed Moore’s signature, GTECH’s policy against personal use was so strict that employees were not even permitted to fuel a company vehicle outside of business hours. Benton also stat ed that Moore did not have permission to chase down Thomas and Thackston in GTECH’s van as th ey were rep ossessing his Mustang

. GTECH is headquartered in Rhode Island and installs and services lottery machines in Georgia. Moore was employed b y GTECH as a service technician and was supplied with the van for his commute to a central company location and for tr avel to and from installation sites. There are a number of extant records related to Moore’s use of the company van

. Moore maintained a service log, which contains a list of the addresses where he was engaged in the installation of lottery machines on specific dates. A series of regular gasoline records also exist s showing odometer readings and the amounts of fuel purchased on a given date. Based on this documentation , the defendant s calculate that

Case: 13-14413 Date Filed: 08/14/2014 Page: 6 of 157 over half of the mileage accrued during the time Moore operated the van could not be associated with any work assignment on the service log. There is some question, however, as to the completeness of these records given that all work assignments were not req uired to be no ted in the log. The Travelers insurance policy that covered t he use of the van was delivered to GTECH at its office in Rhode Island and went into effect on October 1, 2009. It provides in relevant part: We 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 the ownership, maintenance or use of a covered “auto.” The following are “insureds”: [a]nyone ... while using with your permission a covered

“ auto ” you own, hire, or borrow ... The policy carves out an exclusion: This insurance does not apply to “bodily injury” or “property damage” expected or intended from the standpoint of the “insured.” 5
III O n cross - motions for summary judgment t he D istrict C ourt r uled in favor of the defendant s that Moore was an insured under the Travelers policy. The court reached this

5 This exclusion would not totally absolve Travelers of liability but rather limit s the defendants’ recovery to G eorgia’s statutory minimum coverage of $25,000 per claim.

Case: 13-14413 Date Filed: 08/14/2014 Page: 7 of 158 result because in its view Moore had the “permission” of GTECH to use the company van during the November 12 , 2009 pursuit of Thomas and Thackston. Following a bench trial, the court f ound that the death of Th omas and the injuries to Thackston were the result of an “ accident ” and that the injuries were not “expected or intended” by
Moore . Based on its summary judgment ruling and its findings of fact and conclusions of law, the District Court held that Travelers would be obligated to indemnify Moore und er the insurance policy for any liability arising out o f the encounter in issue. Travelers argues that the District Court erred in concluding that: ( 1) Moore was an insured under the policy; ( 2) the death of Thomas and the shooting of Thackston were accidents; and ( 3) the harm these men suffered w as not expec ted or intended by Moore.
W e turn first to the question whether Moore was an insured under the policy. For him to be an insured, the events in question must have occurred while he was using the van with GTECH’s permission. If he wa s not an insured , ther e is no coverage and the remaining issues raised by Travelers are moot

. A federal court sitting in a diversity action applies state law using the choice of law rules of the forum state, in this case Georgia. Klaxon Co. v. Stentor Elec. Mfg. Co. , 313 U.S. 487, 496 (1941); Boardman Petroleum, Inc. v. Federated Mut. Ins. Co. , 135 F.3d 750, 752 (11th Cir. 1998) . Georgia follows the lex loci contractus rule, under which contracts “are to be governed as to their nature, validity and interpretation by the law of the place where they are made.” Gen. Tel. Co. of the S outheast v. Trimm , 311 S.E.2d Case: 13-14413 Date Filed: 08/14/2014 Page: 8 of 159 460, 461 ( Ga. 1984) (quoting Tillman v. Gibson , 161 S.E. 630, 632 (Ga. Ct. App. 1931));

see Convergys Corp. v. Keener , 582 S.E.2d 84, 87 (Ga. 2003). “Under Ge orgia law, an insurance contract is ‘made’ where it is delivered.” Boardman , 135 F.3d at 752. It is undisputed that the Travelers policy was delivered to GTECH at its headquarters in the state of Rhode Island. All parties agree that Rhode Island’s law o f contract interpretation applies unless “the applicability of the law of the chosen state would be contrary to Georgia’s public policy.” Johnson v. Occidental Fire & Cas. Co. of N.C. , 954 F.2d 1581, 1584 (11th Cir. 1992) (quoting Ryder Truck Lines, Inc. v. Goren Equip. Co. , 576 F. Supp. 1348, 1354 (N.D. Ga. 1983)). The District Court referenced several statutory provisions of Rhode Island law in
fin ding that Moore had permission to u se his employer’s van during his pursuit of Thomas and Thackston and thus was an insured

. Section 31

- 33

- 6 of the Rhode Island General Laws provides: Whenever any motor vehicle shall be used, operated, or caused to be operated upon any public highway of this state with the consent of the owner, lessee, or bailee, expressed or implied, the driver of it, if other than the owner, lessee, or bailee, shall in the case of an accident be deemed to be the agent of the owner, lessee, or bailee, of the motor vehicle unless the driver shall have furnished proof of financial r

esponsibility in the amount set forth in chapter 32 of this title, prior to the accident

.... Case: 13-14413 Date Filed: 08/14/2014 Page: 9 of 1510 R .I. G EN
. L AWS § 31

- 33

- 6. The parties now agree that this section is not applicable since the motor vehicle driven by Moore, the GTECH van, was not being “used, operated, or caused to be operated upon any public highway” of Rhode Island. Section 31

- 33

- 7 , on which the District Court primarily relie d , does not contain the specific geographic limitation that is included in § 31

- 33

- 6. It creates a presumption of consent in cases in which the registered owner of a vehicle is not the driver : In all civil proceedings, evidence that at the time of the acc ident or collision the motor vehicle was registered in the name of the defendant, shall be prima facie evidence that it was being operated with the consent of the defendant, and the absence of consent shall be an affirmative defense to be set up in the ans wer and proved by the defendant.
R.I. G EN
. L AWS § 31

- 33

- 7. This statutory language has been construed to mean that granting even limited consent to use a vehicle constitutes consent to use it for all purposes. A valid defense to the presumption arises only when no permission at all was given. See Black v. Viaciulis, 934 A.2d 216 , 220 (R.I. 2007). The parties disagree sharply over whether th e presumption set forth in § 31

- 33

- 7 appl ies in this case . For two reasons, we conclude that it does not. First, the plain language of the statute does not fit the circumstances presented here. Section 31

- 33

- 7 provides that a vehicle’s registration “in the name of the defendant ” at the time of an accident “ shall be prima facie evidence that it was being operated with the consent of the defendant

. ” R.I. G EN
. L AWS § 31

- 33

- 7 (emphasis added). The defendant is allowed to plead and prove lack of any consent as an

Case: 13-14413 Date Filed: 08/14/2014 Page: 10 of 1511 affirmative defense. Id. GTECH , the registered owner , is not a party , much less a defendant in this action or in the underlying state court proceedings

. By its terms, the presumption of consent in § 31

- 33

- 7 is simply unavailing when the registered owner of the vehicle in question is not named as a defendant

. Second, we have found no court decision other than that of the District Court which has relie d on § 31

- 33

- 7 in interpreting the terms of an insurance contract , and we believe that the Supreme Court of Rhode Island would not sa nction such reliance

. See CSX Transp. , Inc. v. Trism Specialized Carriers, Inc. , 182 F.3d 788, 790 (11th Cir. 1999).
In Dias v. Cinquegrana , 727 A.2d 198 (R.I. 1999), the owner of a vehicle appealed a
money judgment against her under § 31

- 33

- 6 where the driver , who was her son and had her consent to use her car , had committed an intentional tort

. S he argued she could not be liable because the injuries he caused were not the result of an accident

. T he Rhode Island Supreme Court affirmed the judgment on the ground that intentional torts are encompassed within the meaning of the word “ accident ” in § 31

- 33

- 6. It explai ned , however, that its “decision affects the liability of a vehicle owner for the acts of the driver under § 31

- 33

- 6; it does not delineate what is or is not covered under any particular insurance policy .” Id. at 200 (emphasis added) . We see no reason why the Rhode Island Supreme Court would treat § 31

- 33

- 7 differently from § 31

- 33

- 6 in this regard. Section
31

- 33

- 7 , like § 31

- 33

- 6, deals with the liability of a motor vehicle owner to an injured

Case: 13-14413 Date Filed: 08/14/2014 Page: 11 of 1512 victim when the owner’s vehicle is being driven by a third party. It does not concern the interpretation of the owner’s insurance policy. 6
Since Rhode Island’s statutory presumpti on of consent under § 31

- 33

- 7 does not apply , we turn to the well

- established principle of Rhode Island law that an insurance policy must be interpreted, like other contracts, by giving the words in the policy “their plain, ordinary, and usual meaning

. ” C heaters, Inc. v. United Nat’l Ins. Co. , 41 A.3d 637, 643 (R.I. 2013) (quoting Aetna Cas. & Sur. Co. v. Sullivan , 633 A.2d 684, 686 (R.I. 1993))

. The insurance contract in this case , as noted above, defines an “ insured ” as “[a]nyone . . . while using with your permission a covered ‘auto ’ you own, hire or borrow. ” Thus, for Moore to be an insured, he ha d to have had permission , as ordinarily understood, to use GTECH’s van for the events for which coverage is sought

. No statutory presumptions , enacted for public policy reasons, pertain in this analysis

. The defendants maintain that despite GTECH’s no personal use policy for its vehicles it a cquiesced in and thus gave permission for Moore’s personal use of the van

. Defendants point to evidence that he purchased considerably more fuel

— often after business hours

— than was necessary to perform the jobs he recorded in his service log

. Travelers contests the significance of this evidence based on the fact that special work

6 We need not decide whether § 31

- 33

- 7 is inapplicable for another reason, that is, that it does not apply to events that occurr ed outside of Rhode Island. As stated above, this provision does not include the same explicit geographic limitation language as does § 31

- 33

- 6. We note, however, that the Rhode Island Superior Court has previously explained that neither § 31

- 33

- 6 nor § 31

- 33

- 7 has any application to loss events in other states. See McCarthy v. Ryder Rental, Inc. , No. C.A. 75

- 4031, 1976 WL 181973, at *1 (R.I. Super. Ct. , Mar. 15, 1976).

Case: 13-14413 Date Filed: 08/14/2014 Page: 12 of 1513 assignments with which Moore was likely tasked w ere not recorded on the service log

. The facts in the record are not clear on how Moore employed the van if at all during his off hours

. 7 Nonetheless, e ven if GTECH’s records established that Moore was regularly using its van for general personal use and that GTECH is deemed to have consented to such use by failing to stop the violation of its no personal use policy, it does not follow that GTECH had granted him permission to use the van as a pursuit vehicle in fu rtherance of a deadly criminal rampage. There is, of course, no evidence in the record that GTECH had granted such permission or that GTECH had any advance knowledge of what was to occur. To the contrary, there is the undisputed testimony of Moore’s supe rvisor, James Benton, who stated that Moore did not have GTECH’s permission to u tilize its van to pursue Thomas and Thackston to recover his Mustang. 8 Even without Benton’s testimony, it is not reasonable to infer , on the present record , that any grant of permission to use a vehicle for personal purposes encompasses its use to aid in the commission of serious felonies, especially where a homicide results for which the driver of the vehicle i s sentenced to life imprisonment. F rom GTECH’s standpoint, s uch utilization could not have been reasonably anticipated or foreseen. See generally R ESTATEMENT (S ECOND ) OF A GENCY §§ 231, 238. We must g iv e the word

7 Of the 274 fuel transactions shown, roughly a quarter of them were for a type of fuel other than what was used in the GTECH van.

8 Moore never pro vided testimony on the subject of personal use of GTECH’s van. An attempt was made to depose him in prison, but he refused to testify.

Case: 13-14413 Date Filed: 08/14/2014 Page: 13 of 1514 “permission” its “plain, ordinary and usual meaning” as require d under Rhode Island law

. In doing so, GTE CH cannot be said to have given Moore permission to use its van t o pursue Thomas and Thackston to prevent the repossession of his Mustang and in the
process to use the van to fire a sawed

- off shotgun, which killed Thomas and wound ed Thackston

. In sum, there is no evidence from which a reasonable jury could find that Moore had GTECH’s permission to use its van as he did on t hat fateful November 12, 2009. Consequently, he was not an insured under the Travelers insurance policy in issue, and there can be no indemnity for him under the policy for the claims presented in the underlying state court action s . T he remaining questions raised by Travelers and reached by the District Court are now moot.
I V For the reasons stated above, the order of the District Court granting summary judgment in favor of defendants Justin Maurice Moore, Willie Thackston, the Estate of Brandon Thomas, and Brandy Thomas and ag ainst plaintiff Travelers Property Casualty Company of America declaring Moore to be an insured under Trave lers Policy No.
TC2JCAP

- 101D6235 is reversed. The action is remanded to the District Court to enter summary judgment in favor of Travelers and against the defendants

. Such judgment shall declare that Travelers has no duty to indemnify Justin Maurice Moor e under Travelers Policy No. TC2JCAP

- 101D6235 in connection with claims involving the death

Case: 13-14413 Date Filed: 08/14/2014 Page: 14 of 1515 of Brandon Thomas and the shooting of Willie Thackston on November 12, 2009. The District Court is further directed to vacate as moot its or der finding and concluding that the November 12, 2009 incident was an “accident” within the meaning of the subject policy and that the “expected or intended from the standpoint of the insured ” exclusion in the policy does not apply.
R

EVERSED AND REMANDED . Case: 13-14413 Date Filed: 08/14/2014 Page: 15 of 15