K.V.G. Props., Inc. v. Westfield Ins. Co.
Opinion
*820 This insurance-coverage dispute began when some of KVG's commercial tenants got caught growing marijuana in their rental units. Unfortunately for their landlord, the tenants caused substantial damage to the premises before the police caught up with them. KVG speedily evicted the tenants and sought coverage from its insurers for nearly $500,000 in related losses. Westfield denied the claims, prompting this lawsuit. The district court granted summary judgment to Westfield, reasoning that the damage was excluded by the policy, and KVG appeals. We AFFIRM .
I
This case arises out of a standard first-party commercial insurance contract. The policy provides a broad range of coverage, from general physical damage insurance to a "fine arts floater." The policy is organized under multiple "Forms," each with their own insuring agreements, terms, and exclusions. The claim in this case arose under the Building and Personal Property Coverage Form ("BPP Policy"). Under this Form, Westfield agreed to pay for "direct physical loss of or damage to Covered Property ... caused by or resulting from any Covered Cause of Loss." For the purposes of KVG's claims, a "Covered Cause of Loss" is any "Risk[ ] Of Direct Physical Loss."
This generous insuring agreement is tempered by a litany of exclusions. One such exclusion states that Westfield "will not pay for loss or damage caused by or resulting from" any "[d]ishonest or criminal act by you, any of your partners, members, officers, managers, employees (including leased employees), directors, trustees, authorized representatives or anyone to whom you entrust the property for any purpose." The parties refer to this language as the Dishonest or Criminal Acts Exclusion.
With the basic terms of the policy out of the way, we turn to the facts of this case. KVG, a commercial landlord, leased several pieces of real property to a group of commercial tenants. KVG authorized the tenants to use the property for general office or light industrial business. On October 29, 2015, the U.S. Drug Enforcement Agency raided the premises and caught the tenants growing lots of marijuana. KVG speedily evicted the tenants, but the damage had already been done: To accommodate their "business," the tenants removed walls, cut holes in the roof, altered ductwork, and severely damaged the HVAC systems. The total cost of repair appears to be around $500,000.
KVG subsequently filed a claim with Westfield for insurance coverage. After a kerfuffle between the parties' respective agents, Westfield denied the claim, finding that several exclusions applied. KVG then sued Westfield for breach of the insurance agreement, and KVG removed the case to federal court.
See
*821 II
We review de novo a grant of summary judgment based on the district court's interpretation of a Michigan insurance contract.
Stryker Corp. v. XL Ins. America
,
The first step of the analysis requires little discussion. The insuring agreements are written broadly to cover all "Risks of Direct Physical Loss." Indeed, one would struggle to think of damage not covered by this language, and this is not a case that tests its boundaries. It is abundantly clear that the property suffered physical damage, necessarily caused by some risk (or risks) of direct physical loss. 1 The harder question is whether the risks here are not covered because an exclusion takes them off the table.
Westfield leads with the Dishonest or Criminal Acts Exclusion. In sum, Westfield argues that KVG's tenants' conduct was criminal under either state or federal law and that these acts were the main cause of KVG's loss. We agree.
2
Therefore, we do not address the merits of the other exclusions argued by the parties, since the criminal acts here cover all of KVG's claims against Westfield.
Hunt v. Drielick
,
Under this exception, the core issue is whether the tenants committed a "criminal act" within the meaning of the policy. In the abstract, this is an interesting question. Cultivating marijuana is a crime under federal law,
see, e.g.
,
Under different circumstances, KVG might have a strong federalism argument
*822
in favor of coverage. In diversity cases, we act as faithful agents of the state courts and the state legislature.
See
Erie R.R. Co. v. Tompkins
,
Ultimately, the insurer bears the burden of proving facts showing that an exclusion applies.
Hunt
,
Here, the record contains evidence that KVG itself claimed, in Michigan court, that its tenants violated the law. In its eviction pleadings against each tenant, KVG repeatedly claimed that the "[t]enant illegally grew marijuana" in the unit and stated that the "[i]llegal growing of marijuana" was a "continuing health hazard." These pleadings were signed by KVG's lawyer, who sought and obtained immediate possession of the premises under Michigan's summary eviction statute.
Furthermore, neither party disputes that federal agents raided the premises as part of a criminal investigation. At the time of the raids, federal officials were operating under guidance from the Deputy Attorney General stating that they should not prioritize "individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana." DAVID W. OGDEN, MEMORANDUM FOR SELECTED U.S. ATTORNEYS (Oct. 19, 2009);
see also
JAMES M. COLE, MEMORANDUM FOR U.S. ATTORNEYS (June 29, 2011). Though the guidance did not purport to halt all federal inquiry into marijuana growing that complied with state law, it did set priorities for federal
*823
law enforcement's limited resources. Whether one agrees with these memoranda or not, we do not lightly presume that the DEA ignored them when deciding to raid KVG's property. Thus, the fact of the raid itself has some tendency to show that the tenants were not "in clear and unambiguous compliance" with Michigan law.
See
Taken together, these facts are sufficient to meet Westfield's prima facie case of proving a criminal act by the preponderance of the evidence. It thus falls to KVG to identify record evidence suggesting that its tenants complied with the Michigan Medical Marihuana Act.
See
Maben
,
One final matter deserves discussion. At oral argument, KVG took the position that Westfield could not invoke the Dishonest or Criminal Acts Exclusion unless the tenants had been convicted. KVG cited no authority for this assertion, and we cannot find any as well. The policy says "criminal act," not "crime" or "criminal conviction." A fugitive from justice may properly be deemed a criminal by the person he harms, even though the State cannot prove it beyond a reasonable doubt. We doubt the Michigan Supreme Court would read such an onerous "conviction requirement" into a standard commercial insurance contract, and we accordingly decline to do so in the complete absence of state authority providing otherwise.
III
The policy's insuring agreements cover the damage here, but Westfield has proven that the Dishonest or Criminal Acts Exclusion applies. Therefore, the district court did not err in granting Westfield's motion for summary judgment, and we AFFIRM that decision.
KVG insists that the only relevant risk here is "vandalism" and therefore embarks on a quest to define that term. But nowhere do the policy's relevant insuring agreements mention vandalism. Even the Crime & Fidelity Form referenced by KVG at oral argument makes no mention of vandalism in its insuring agreements.
See
R. 10-3, Commercial Crime & Fidelity Form § A.1-A.7, PID 398-99. Instead, vandalism only appears in the policy's exclusions, in the exceptions to those exclusions, and in certain specific riders that do not relate to the subject matter of this case.
We observe that the text of the Dishonest and Criminal Acts Exclusion includes two basic elements: (1) A dishonest or criminal act, (2) committed by a person in a specified role or by "anyone to whom you entrust the property for any purpose." R. 10-3, Special Form § B.2.h, PID 257. The list of roles does not include tenants, and there is some question about whether
this
exclusion should apply to someone who obtains "entrustment" by false pretenses.
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Reference
- Full Case Name
- K.V.G. PROPERTIES, INC., Plaintiff-Appellant, v. WESTFIELD INSURANCE COMPANY, Defendant-Appellee.
- Cited By
- 45 cases
- Status
- Published