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Zup's of Babbitt-Aurora, Inc. v. West Bend Mut. Ins. Co.

United States Court of Appeals, Eighth Circuit

May 21, 2015

Zup's of Babbitt-Aurora, Inc.; Security National Insurance Co., Inc., Plaintiffs - Appellants
v.
West Bend Mutual Insurance Company, Inc., Defendant - Appellee; Zup's of Babbitt-Aurora, Inc.; Security National Insurance Co., Inc., Plaintiffs - Appellees
v.
West Bend Mutual Insurance Company, Inc., Defendant - Appellant

Submitted: February 10, 2015.

Appeals from United States District Court for the District of Minnesota - Minneapolis.

For Zup's of Babbitt-Aurora, Inc., Security National Insurance Co., Inc., Plaintiffs - Appellants (14-1950): Jeffrey W. Gunn, MORRIS & STELLA, Chicago, IL; David C. Linder, LARSON & KING, Saint Paul, MN.

For West Bend Mutual Insurance Company, Inc., Defendant - Appellee (14-1950): Forrest G. Hopper, Kevin James Kennedy, BORGELT & POWELL, Oakdale, MN.

For Zup's of Babbitt-Aurora, Inc., Security National Insurance Co., Inc., Plaintiffs - Appellees (14-1882): Jeffrey W. Gunn, MORRIS & STELLA, Chicago, IL; David C. Linder, LARSON & KING, Saint Paul, MN.

For West Bend Mutual Insurance Company, Inc., Defendant - Appellant (14-1882): Forrest G. Hopper, Kevin James Kennedy, BORGELT & POWELL, Oakdale, MN.

Before GRUENDER, SHEPHERD, and KELLY, Circuit Judges.

OPINION

Page 1079

GRUENDER, Circuit Judge.

This is a suit to determine how two insurers should pay for the income lost when a supermarket burned down. On cross-motions for summary judgment, the district court[1] determined that Security National Insurance Co., Inc. (" Security National" ) was liable and West Bend Mutual Insurance Company, Inc. (" West Bend" ) was not. We affirm this holding and dismiss the appeal of West Bend's counterclaim as moot.

Zup's of Babbitt-Aurora, Inc. (" Zup's" ) owned a strip mall in Babbitt, Minnesota, where it operated a supermarket and rented the remaining space to other businesses. When the strip mall burned down in 2011, Zup's lost income from its supermarket as well as rent from its tenants. Zup's had two relevant insurance policies, one from Security National and one from

Page 1080

West Bend. The parties agree that Security National's policy covered Zup's lost supermarket income and West Bend's policy covered Zup's lost rent. The question here is whether West Bend is also responsible for Zup's lost supermarket income.

The Security National policy explicitly covered supermarkets. Most obviously, it repeatedly referred to " supermarkets." It charged premiums for " caterers." And it had endorsements related to " spoilage" and " liquor liability." This policy covered several Zup's supermarkets, and one premium was specifically allocated to ...


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