*

The Honorable Thomas B. Russell, United States District Judge for the Western District of Kentucky, sitting

by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0126p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

MINGES CREEK, L.L.C.,

Plaintiff-Appellee,

v.

ROYAL INSURANCE COMPANY OF AMERICA,

Defendant-Appellant.

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No. 05-1313

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 03-72763—Julian A. Cook, Jr., District Judge.

Argued: March 16, 2006

Decided and Filed: April 6, 2006 

Before: DAUGHTREY and GILMAN, Circuit Judges; RUSSELL, District Judge.*

_________________

COUNSEL

ARGUED: James N. McNally, SOMMERS SCHWARTZ, Southfield, Michigan, for Appellant.

Rick J. Patterson, POTTER, DeAGOSTINO, O’DEA & PATTERSON, Auburn Hills, Michigan,

for Appellee. ON BRIEF: James N. McNally, Leonard B. Schwartz, SOMMERS SCHWARTZ,

Southfield, Michigan, for Appellant. Rick J. Patterson, Steven M. Potter, POTTER, DeAGOSTINO,

O’DEA & PATTERSON, Auburn Hills, Michigan, for Appellee. 

_________________

OPINION _________________

RONALD LEE GILMAN, Circuit Judge. A customer slipped and fell on an icy sidewalk

upon exiting a card store in the Minges Brook Mall, a shopping center owned by Minges

Creek, L.L.C. Chubb Insurance Company, the insurer of the mall’s common areas, paid the

settlement cost and the associated litigation expenses resulting from the customer’s lawsuit. Minges

Creek then sued Royal Insurance Company of America, the insurer of the card store, for

indemnification on the basis that Minges Creek was named as an additional insured under the card

store’s liability policy with Royal. Summary judgment was granted in favor of Minges Creek. For

the reasons set forth below, we REVERSE the judgment of the district court and REMAND the

case with instructions for the district court to dismiss the complaint with prejudice.

1
No. 05-1313 Minges Creek v. Royal Ins. Co. of America Page 2

I. BACKGROUND

Minges Creek is the owner of the Minges Brook Mall located in Battle Creek, Michigan.

In December of 1989, Minges Creek leased a portion of its property to the “1/2 Off Card Shop”

(Card Shop). The “leased premises” were defined in the lease as the 6,796 square feet shown on the

site plan, which clearly indicated that the leased premises were limited to the interior of the store

and did not include the exterior walls, the roof, or the surrounding land. (Lease § 1.01) Common

areas, including the parking lots, roadways, and pedestrian sidewalks, were provided by Minges

Creek “for the convenience and use of the tenants of the Shopping Center, and their respective

subtenants, agents, employees, customers, invitees, and any other licensees of Landlord.” (Lease

§ 7.03)

The lease also set forth the Card Shop’s insurance obligations as a tenant: 

Tenant shall, during the entire term hereof, keep in full force and effect a policy of

public liability and property damage insurance with respect to the leased premises,

and the business operated by Tenant and any subtenants of Tenant in the leased

premises . . . . The policy shall name Landlord, any other parties in interest

designated by Landlord, and Tenant as insured . . . . 

(Lease § 10.01) (Emphasis added.) 

Pursuant to the Card Shop’s lease obligation, Royal issued a general liability policy to the

Card Shop to cover its Minges Brook Mall store and several other Card Shop locations. An

addendum to Royal’s policy with the Card Shop defined additional insureds as follows:

The following is added to SECTION II- WHO IS AN INSURED:

5. a. Any person or organization you are required by a written contract,

agreement or permit to name as an insured is an insured but only with

respect to liability arising out of:

. . . 

2. Premises owned or used by you.

(Royal Ins. Policy “Enhancement Endorsement” § 12).

The Card Shop, along with all of the other tenants of the Minges Brook Mall, was also

required by the lease to pay a proportionate share of Minges Creek’s cost of maintaining and

insuring the common areas of the mall. Minges Creek’s insurance policy covering the common

areas was issued by Chubb.

The underlying accident that gave rise to the insurance dispute in this case occurred in

March of 1999 when Peggy Lampert, a customer of the Card Shop, slipped and fell on ice while

walking to her car from the store. Lampert sued Minges Creek, the Card Shop, and a snow removal

contractor in Michigan state court. Her complaint alleged as follows:

The accident occurred when Plaintiff Peggy Lampert, as a customer of the 1⁄2 Off

Card Shop, Inc., began walking toward her car which was located in Defendant

Minges Creek LLC’s parking lot, and while in the process of leaving the store,

slipped and fell on ice, causing her to sustain very serious personal injuries and

damages.
No. 05-1313 Minges Creek v. Royal Ins. Co. of America Page 3

The state trial court dismissed the Card Shop from Lampert’s suit because the Card Shop

did not “legally possess[] the sidewalk area where the fall occurred.” Minges Creek was found to

have “exclusive dominion and control over maintaining the entire parking area including the

sidewalks in front of the 1⁄2 Off Card Shop.” Following the Card Shop’s dismissal, Minges Creek

settled the lawsuit with Lampert for $210,000. Chubb, as Minges Creek’s insurer, covered this cost

as well as the expense of defending against Lampert’s claim. 

Minges Creek then filed suit against Royal, the Card Shop’s insurer. The suit was removed

to federal court based on diversity of citizenship. Alleging that it was an additional insured under

the Card Shop’s policy, Minges Creek sought reimbursement for the $210,000 settlement cost and

approximately $26,700 in expenses that were incurred in defending against Lampert’s claims.

Royal’s insurance contract promised to pay all insureds “those sums that the insured becomes legally

obligated to pay . . . [and] defend the insured against any ‘suit’ seeking [bodily injury or property]

damages.” 

After both parties moved for summary judgment, the district court granted judgment in

favor of Minges Creek. It held that Minges Creek was an additional insured under the Card Shop’s

insurance policy issued by Royal and that the accident occurred on premises used by the Card Shop.

Thus, even though the Card Shop did not control the common area where the accident occurred, and

even though it was dismissed from Lampert’s lawsuit, the Card Shop’s insurance policy was deemed

to cover the claim. According to the district court, this obligated Royal to defend and indemnify

Minges Creek. The district court therefore ordered Royal to reimburse Minges Creek for the

settlement cost and the litigation expenses for the underlying litigation with Lampert. Royal now

appeals.

II. ANALYSIS

A. Standard of review

The district court’s grant of summary judgment is reviewed de novo. Int’l Union v.

Cummins, Inc., 434 F.3d 478, 483 (6th Cir. 2006). Summary judgment is proper where there exists

no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c). In considering a motion for summary judgment, the district court must

construe the evidence and draw all reasonable inferences in favor of the nonmoving party.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The central issue is

“whether the evidence presents a sufficient disagreement to require submission to a jury or whether

it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). 

B. Applicable law

Both parties agree that because Michigan is the forum state and the place where Royal’s

insurance policy was written, Michigan law governs the interpretation of the insurance policy. See

Himmel v. Ford Motor Co., 342 F.3d 593, 598 (6th Cir. 2003) (applying the law of the forum state

in diversity cases). The interpretation of an insurance policy is a question of law that is reviewed

de novo. Schmalfeldt v. N. Pointe Ins. Co., 670 N.W. 2d 651, 653 (Mich. 2003). 

An insurance policy is interpreted in accordance with its terms. Twichel v. MIC Gen. Ins.

Corp., 676 N.W.2d 616, 622 (Mich. 2004) (holding that, based on the clear language of the policy

at issue, a driver was not covered by his grandfather’s insurance). Moreover, a party’s “reasonable

expectations cannot super[c]ede the clear language of a contract.” Wilkie v. Auto-Owners Ins. Co., 664 N.W.2d 776, 786 (Mich. 2003) (quotation marks omitted). 
No. 05-1313 Minges Creek v. Royal Ins. Co. of America Page 4

Insurance policies must be read as a whole, giving meaning to all of their terms. AutoOwners Ins. Co. v. Harrington, 565 N.W.2d 839, 841 (Mich. 1997). If a term is not defined in an

insurance policy, the term is “accorded its commonly understood meaning.” Twichel, 676 N.W.2d

at 622. The Michigan Supreme Court employs dictionary definitions to interpret nontechnical terms,

but uses specialized dictionaries and caselaw to interpret legal terms of art. See id. (referencing

dictionary definitions to interpret the term “owner”); Henderson v. State Farm Fire & Cas. Co., 596

N.W.2d 190, 194 (Mich. 1999) (distinguishing between legal terms of art, like “equitable remedy,”

which should be interpreted in accordance with their common law understandings, and

colloquialisms, which should be given their ordinary meaning). If language in an insurance policy

can reasonably be interpreted in more than one way, the policy will be interpreted against the

insurer. Wilkie, 664 N.W.2d at 786-87. Courts, however, should not “create ambiguity in an

insurance policy where the terms of the contract are clear and precise.” Henderson, 596 N.W.2d at

193. Unambiguous terms “must be enforced as written,” and insurers are not liable for risks that

they do not assume. Id.

In the present case, the district court held Royal liable for both the expense of litigating

Lampert’s suit and the ultimate settlement cost. It thus held that Royal had both a duty to defend

and a duty to indemnify Minges Creek, a named insured under Royal’s policy with the Card Shop.

According to the Michigan Supreme Court, “the duty to defend is broader than the duty to indemnify

and is properly invoked when claims are even arguably within coverage.” Polkow v. Citizens Ins.

Co., 476 N.W.2d 382, 384 (Mich. 1991) (quotation marks omitted). Although all doubts regarding

whether the duty to defend applies are resolved in favor of the insured, id., “if coverage is not

possible, then the insurer is not obliged to provide a defense.” Marlo Beauty Supply, Inc. v. Farmers

Ins. Group, 575 N.W.2d 324, 327 (Mich. 1998) (construing an ambiguous policy against the

insurer). We must therefore first determine whether Lampert’s suit against Minges Creek was

covered by Royal’s insurance policy.

C. The insurance contract

1. Was Minges Creek a named insured?

Because the lease agreement between Minges Creek and the Card Shop required the Card

Shop to name Minges Creek as an additional insured, the district court held that Royal was obligated

to defend and indemnify Minges Creek. Royal contends, however, that Minges Creek was an

additional insured under the Card Shop’s policy only with respect to incidents occurring inside of

the Card Shop. This is because the “written contract, agreement or permit” requiring the Card Shop

to name Minges Creek as an additional insured, as stated in Royal’s Insurance Policy “Enhancement

Endorsement” § 12, obligated the Card Shop to insure only the “leased premises.” ( Lease § 10.01)

Royal issued a certificate of liability insurance to Minges Creek, stating that “the certificate

holder is listed as an additional insured-Landlord with respect to the property located at [Minges

Brook Mall].” Minges Creek therefore qualified as an additional insured under Royal’s policy. The

scope of Royal’s liability to Minges Creek as a named insured, however, must be determined by the

“premises owned or used” language in Royal’s policy.

2. Did the accident occur on premises “owned or used by” the Card Shop?

In order for Royal to be obligated to defend and indemnify Minges Creek, Lampert’s

accident had to have occurred on “[p]remises owned or used by” the Card Shop. The parties dispute

the proper definitions of both the term “premises” and the term “used.” Royal first argues that the

term premises refers only to the inside of the Card Shop, whereas Minges Creek asserts that the term

premises means the Card Shop plus the common areas surrounding the store.
No. 05-1313 Minges Creek v. Royal Ins. Co. of America Page 5

The district court, in following Michigan precedent that instructs courts to generally apply

the commonly understood meaning of terms, see Twichel, 676 N.W.2d at 622, referenced the

dictionary definition of the term premises. Premises is defined by Merriam Webster’s Collegiate

Dictionary 920 (10th ed. 1997), as “a tract of land with the buildings thereon.” If the term premises

is more appropriately classified as a “term of art,” however, reference to a specialized dictionary is

appropriate. Black’s Law Dictionary 1180-81 (6th ed. 1997), is such a specialized dictionary, and

it defines premises as follows:

Land with its appurtenances and structures thereon. Premises is an elastic and

inclusive term, and it does not have one definite and fixed meaning; its meaning

is to be determined by its context and is dependent upon circumstances in which

used, and may mean a room, shop, building, or any definite area.

Black’s Law Dictionary thus recognizes that the term premises has an elastic and contextspecific definition. The district court focused on the first sentence of the definition and concluded

that Black’s supports Minges Creek’s claim that the accident is covered by Royal’s policy. But the

court failed to consider the definition beyond the first sentence, specifically the part stating that the

meaning of the term premises “is to be determined by its context and is dependent upon

circumstances in which used . . . .” Id. 

Royal persuasively argues that, throughout the insurance policy, “an intent is clearly shown

to rely on the written contract [i.e. the lease] to define the obligation to add the landlord as a named

insured, and to define the scope of the obligation owed to that party.” It contends that the term

premises in the insurance policy is unambiguous because the lease’s definition of the term “leased

premises” should be deemed to control the meaning of the term premises as used in the policy. A

term in a contract is unambiguous if there is only one way to reasonably interpret the term. See

Wilkie, 664 N.W.2d at 786-87 (defining an ambiguous term in a contract as one where there is more

than one reasonable interpretation). Royal argues that because its policy specifically refers to the

“written contract, agreement or permit” in its “additional insured” section, the only reasonable

interpretation of the term premises is one based on the lease.

We agree that the lease and Royal’s policy are inextricably intertwined and should be

interpreted in context with each other. Although Minges Creek argues against referring to the lease

in order to define the term premises in the policy, Minges Creek’s conclusion that the Card Shop

used the area where Lampert fell is based on the provision of the lease (Lease § 7.03) designating

the common areas for use by all of the tenants of the shopping center. Minges Creek cannot have

it both ways. The plain language of Royal’s policy links it to the lease, and therefore the only

reasonable interpretation of “[p]remises owned or used by” the Card Shop is one that is informed

by the lease.

Given the lease’s provision obligating the Card Shop to insure only the inside of its store,

we conclude that the only reasonable interpretation of the term premises comports with the lease’s

definition of the term “leased premises.” The lease defines the leased premises as the 6,796 square

feet inside the Card Shop, and does not include the sidewalk where Lampert fell. And the lease

obligated the Card Shop to name Minges Creek as an insured only with respect to the “leased

premises.” Defining the term premises in the insurance policy to include the common areas that the

Card Shop was not required to insure strikes us as unreasonable.

The case of Zurich Insurance Co. v. CCR & Co., 576 N.W.2d 392 (Mich. 1997), supports

the proposition that terms that might be ambiguous in some contexts can have highly specific and

unambiguous meanings in others. Zurich posits an example where A contracts with B to pay $X for

eagles. Id. at 397 n.4. Depending on the context, eagles can unambiguously mean coins if the

parties are numismatists, birds if the parties are animal dealers, or scores in an athletic competition
No. 05-1313 Minges Creek v. Royal Ins. Co. of America Page 6

if the parties are golfers. Id. In the present case, the context that defines the otherwise ambiguous

term premises is not extrinsic evidence, but the plain language of the lease, which is specifically

referenced in Royal’s insurance policy. This context requires that the definition of premises in the

policy be coextensive with the Card Shop’s obligation to name Minges Creek as an additional

insured.

Because we conclude that the term premises is restricted to the inside of the Card Shop,

Lampert’s accident outside of the Card Shop is not covered by Royal’s policy. We therefore do not

have to analyze the definition of the term “used,” but wish to reiterate that even Minges Creek

looked to the lease to define that term. Moreover, we note that an absurd result would occur if the

terms “premises” and “used” were both interpreted according to Minges Creek’s definition of

premises (the Card Shop and the sidewalk around it) and its expansive definition of used (in which

all tenants use the common areas). Under its interpretation, Minges Creek could seek indemnity

under Royal’s policy even if a patron of another store fell on the common sidewalk. In fact, it could

presumably seek coverage as the named insured from every tenant in the shopping center whose

policy contained language similar to Royal’s. This interpretation is all the more unreasonable in

light of Minges Creek having procured a separate insurance policy through Chubb that explicitly

covered the common areas. Minges Creek has clearly not advanced a reasonable interpretation of

“[p]remises owned or used” by the Card Shop.

For the reasons stated above, we also hold that Royal had no duty to defend against

Lampert’s claims. Even accepting all of Lampert’s allegations as true, Royal’s policy does not cover

her accident. Royal therefore was not required to defend Minges Creek against the lawsuit by

Lampert. See Marlo Beauty Supply, 575 N.W.2d 324 at 327 (holding that “if coverage is not

possible, then the insurer is not obliged to provide a defense”). 

At bottom, this case appears to involve an effort by one insurance company (Chubb, the

insurer of the common areas) to obtain reimbursement from another insurance company (Royal, the

insurer of the Card Shop’s leased premises). The only reasonable reading of the documents

controlling the relationship between the parties, however, convinces us that Chubb was the proper

insurance company to defend and indemnify Minges Creek for Lampert’s accident that occurred in

the common areas. 

III. CONCLUSION

For all of the reasons set forth above, we REVERSE the judgment of the district court and

REMAND the case with instructions to dismiss the complaint with prejudice.