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Burris v. Gulf Underwriters Ins. Co.

United States Court of Appeals, Eighth Circuit

May 27, 2015

Lowell P. Burris; Joyce P. Burris, Plaintiffs - Appellants
v.
Gulf Underwriters Insurance Company, Defendant - Appellee, Versa Products, Inc.; G and L Products, Inc.; Menard, Inc., Defendants

Submitted March 10, 2015.

Page 876

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

For Lowell P. Burris, Joyce P. Burris, Plaintiffs - Appellants: Thomas Francis Handorff, Handorff Law Offices, Minneapolis, MN.

For Gulf Underwriters Insurance Company, Defendant - Appellee: Nicholas John O'Connell, Murnane & Brandt, Saint Paul, MN.

Before WOLLMAN, BEAM, and LOKEN, Circuit Judges.

OPINION

Page 877

BEAM, Circuit Judge.

Lowell and Joyce Burris (jointly " Burris" ) appeal the district court's[1] denial of their motion for a new trial following a jury verdict in favor of Gulf Underwriters Insurance Company (" Gulf" ). We affirm.

I. BACKGROUND

Lowell Burris was severely injured falling from a ladder in August 2001. In 2007, Burris brought claims in Minnesota state court against the ladder's manufacturers, Versa Products, Inc. and G & L Products, Inc. (jointly " Versa" ), and against the seller of the ladder, Menard, Inc. (" Menard" ). Menard removed on the basis of diversity jurisdiction.

In May 2008, Gulf, Versa's former insurance company, filed a separate insurance coverage declaratory judgment action, seeking a declaration that it had no duty to defend Menard or Versa. The product liability case was stayed pending the outcome of the insurance coverage issue. In the insurance coverage case, the district court granted Gulf's motion for summary judgment. On appeal, we reversed the district court's decision in the declaratory judgment action, and remanded with instructions to dismiss the case. We held the preferred procedure under Wisconsin[2] law is for the interested insurance company to intervene in the underlying litigation, rather than the filing of a separate action on the coverage issue alone. See Gulf Underwriters Ins. Co. v. Burris, 674 F.3d 999 (8th Cir. 2012).

Accordingly, in September 2012, Gulf moved to intervene in the product liability action. The district court granted the motion, and stayed the liability proceedings pending the resolution of the coverage issue. In September 2013, Burris and Versa entered into an agreement under Miller v. Shugart, 316 N.W.2d 729 (Minn. 1982),[3] in which Versa admitted liability and permitted Burris to seek recovery from Gulf. Versa had a " claims made" insurance policy issued by Gulf effective March 3, 2003, through May 5, 2003 (" Coverage Period" ). Under the terms of the policy, a claim would be covered by Gulf if it was " made" within the Coverage Period, regardless of when the underlying injury occurred. The policy stated that a claim was " made" when notice of a claim was " received and recorded" by Gulf or any insured, in this case Versa. The policy required Versa to notify Gulf " as soon as practicable" when Versa received a claim.

Gulf and Burris each brought motions for summary judgment on the insurance coverage issue. Burris claimed that Gulf's policy covered his claim against Versa because his former attorney, Dennis Letourneau, mailed a letter to Versa on March 14, 2003 (" March 2003 Letter" ). While this would have been within the Coverage Period--thus triggering coverage under the claims made policy--Gulf denied that Versa received or recorded the March 2003 Letter. In support of his motion for summary judgment, Burris submitted ...


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