               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 12a0510n.06

                                       Nos. 11-3027/3041

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                    FILED
AMINA BENAHMED, Individually, and as
personal representative and/or next of friend of
                                                                               May 16, 2012
the estate of Agdulgader Zbedah, Aya Zbedah,                              LEONARD GREEN, Clerk
Alimusa Zbedah, and Jannat Zbedah,
                                                             ON APPEAL FROM THE
       Plaintiff-Appellee/Cross-Appellant,                   UNITED STATES DISTRICT
                                                             COURT FOR THE NORTHERN
v.                                                           DISTRICT OF OHIO

HOUSTON CASUALTY COMPANY,

       Defendant-Appellant/Cross-Appellee.

                                                 /




BEFORE:        NORRIS, CLAY, and GRIFFIN, Circuit Judges.

       CLAY, Circuit Judge. This action arises between Plaintiff Amina Benahmed, as executor

of her deceased husband’s estate, and Defendant Houston Casualty Company. Defendant appeals

the district court’s order granting summary judgment in part to Plaintiff on her action to recover

insurance damages from Defendant following her successful state action for wrongful death against

her deceased husband’s employers, Defendant’s insureds. Plaintiff cross-appeals the order granting

summary judgment in part to Defendant on Plaintiff’s request for post-judgment interest. For the

reasons that follow, we AFFIRM both orders.
                                             No. 11-3027
                                          BACKGROUND

        Abdulgader Zbedah was employed with TriCoastal Air, Inc. (“TriCoastal”) and Grand Aire

Express, Inc. (“Express”) as a pilot. On February 8, 2006, he was piloting a Fairchild Swearingen

SA226TC cargo plane from Ohio to Texas and was the plane’s only occupant. The plane developed

a mechanical problem and crashed in Tennessee, ultimately killing Zbedah. Following Zbedah’s

death, Plaintiff was appointed executor of his estate. Plaintiff filed a wrongful death action against

TriCoastal and Express in the Lucas County Court of Common Pleas of Ohio.

        TriCoastal and Express alleged that they were insureds of Defendant Houston Casualty

Company under Policy Number 013047-014. Defendant initially represented TriCoastal and Express

in the Lucas County lawsuit, but it eventually determined that Plaintiff’s claim was not covered by

its policy, issued a coverage denial letter, and subsequently terminated its representation of

TriCoastal and Express. TriCoastal and Express hired independent counsel and jointly agreed to

settle with Plaintiff. The settlement stipulated that TriCoastal, Express, and two other Grand Aire

affiliates negligently maintained the cargo plane flown by Zbedah and that their negligence caused

Zbedah’s death. The companies also agreed to confess judgment of $5,278,753.00 in Plaintiff’s

favor, in exchange for Plaintiff’s agreement to enforce judgment only against Defendant. On

October 20, 2008, the Lucas County court entered judgment in Plaintiff’s favor against TriCoastal

and Express for the agreed-upon amount.

        Plaintiff, acting as a judgment creditor, brought the present action against Defendant in

federal district court on the basis of diversity jurisdiction. Plaintiff sought to enforce the stipulated

damages amount against Defendant under Policy Number 013047-014.


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                                           No. 11-3027
       The policy period of May 17, 2005 to May 17, 2006 encompasses the date of Zbedah’s

accident, February 8, 2006. The “named insureds” listed on the policy are TriCoastal, Grand Aire,

Inc., Grand Aire Operations, Inc., Grand Aire Avionics, Inc., the estate of Tahir Cheema (owners of

the Grand Aire companies), the officers, directors, and employees of the companies, and any

subsidiary companies.1

       The policy provides Coverages A through E and twelve “endorsements” (additional coverage

policies). The provision of the policy at issue is Endorsement Four, for “Premises, Products-

Completed Operations and Hangarkeepers Liability Coverage.” Section Two of that endorsement

provides:

       Aviation Products-Completed Operations Liability
       This Policy will pay on behalf of the Insured all sums which the Insured shall become
       legally obligated to pay as damages because of bodily injury and property damage
       caused by an occurrence and arising out of the Insured’s aviation operations and/or
       the possession, use, consumption or handling of any goods or products manufactured,
       constructed, altered, repaired, serviced, treated, sold, supplied or distributed by the
       Named Insured or its employees, and then only after such goods or products have
       ceased to be in the possession or under the control of the Insured.

The limit of liability under Endorsement Four, Section Two is one million dollars, and the

endorsement is subject to certain exclusions. The endorsement states:

       Exclusions
       The coverage provided by this Section [Endorsement Four, Section Two] is subject
       to the same exclusions as are applicable to Coverages B, C, D, and E of this Policy
       ....



       1
        Express is not listed as a named insured, and Defendant strongly asserts that it cannot be
required to pay for a non-insured’s negligence. Regardless of the merits of Defendant’s allegation,
Defendant admits that TriCoastal is a named insured, and Defendant’s liability under the policy is
the same regardless of whether Express is also a named insured.

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Thus, Endorsement Four, Section Two refers the reader to the policy’s coverage exclusions.2 The

policy’s general “Exclusions” section lists four exclusions that apply to all coverages A through E,

which are not pertinent here. The section also offers four coverage-specific exclusions. Relevant

to this appeal are two coverage-specific exclusions. Those provide:

       EXCLUSIONS

       This policy does not apply to:
       ....

       5. Under Coverage B, C, D and E
                (a) to liability assumed by the Insured under any contract or agreement, but
       this exclusion 5.(a) does not apply to the assumption by the Named Insured of the
       liability of others for bodily injury or property damage in any written hold harmless
       agreement required by a governmental or military authority as a prerequisite to the
       use of an airport or an airport facility;
                (b) (i) To claims directly or indirectly occasioned by, happening through or
       in: [sic] consequence of: (1) noise . . ., (2) pollution . . ., (3) electrical and
       electromagnetic interference, (4) interference with the use of property; unless caused
       by or resulting from a crash, fire, explosion or collision of an aircraft or a recorded
       in-flight emergency causing abnormal aircraft operation.
                     (ii) With respect to any provision in the policy concerning any duty of the
       Company to investigate or defend claims, such provision shall not apply and the
       Company shall not be required to defend: (1) claims excluded by paragraph (b) (i)
       above or (2) a claim or claims covered by the policy when combined with any claims
       excluded by paragraph (b)(i) above (referred to below as “Combined Claims”).
                     (iii) In respect of any Combined Claims, the Company shall (subject to
       proof of loss and the limits of the policy) reimburse the Insured for that portion of the
       following items which may be allocated to a claim or claims covered by the policy:
       (1) damages awarded against the Insured and (2) defense fees and expenses incurred
       by the Insured.
                (c) To claims in respect of bodily injury or property damage caused by or
       resulting from the use by the Insured or his agent of all forms of fertilizers,
       fungicides, defoliants, herbicides, hormone selective weed killers, pesticides,



       2
       Additionally, there are several exclusions that apply only to Endorsement Four, Section
Two, but are not relevant on appeal.

                                                  4
                                            No. 11-3027
       insecticides, and arsenical preparations or compounds or any other forms of
       chemicals.

       6. Under Coverages B, C and D
               (a) to any obligation for which the Insured or any carrier as his insurer may
       be held liable under any worker’s compensation, unemployment compensation or
       disability benefits law, or under any similar law;
               (b) to bodily injury to any employee of the Named Insured arising out of and
       in the course of his employment by such Named Insured; but this exclusion 6.(b)
       does not apply to liability assumed by the Named Insured under any governmental
       or military agreement referred to in Exclusions 5. (a) above;
               (c) to bodily injury to any person who is a Named Insured . . . .

       On the basis that her claim was covered under Endorsement Four, Section Two of the policy,

Plaintiff filed a motion for summary judgment, requesting that Defendant pay the confessed Lucas

County judgment and post-judgment interest. Defendant filed a cross-motion for summary

judgment, arguing that no liability existed under its policy for the negligence of TriCoastal or

Express or for their stipulated judgment. The district court granted partial summary judgment to

Plaintiff, determining that Defendant was liable to Plaintiff, but only in the amount of one million

dollars per the cap in the insurance agreement. The court also granted partial summary judgment to

Defendant in denying Plaintiff’s request for post-judgment interest. Defendant responded with a

single motion under both Federal Rules of Civil Procedure Rule 59(e) to alter or amend judgment

and Rule 60(b)(6) for relief from the district court’s order, which the district court denied. Both

parties timely cross-appealed the district court’s summary judgment order.

                                          DISCUSSION

I.     Federal Jurisdiction and Standing to Sue

       On appeal, Defendant argues, for the first time, that federal jurisdiction does not exist and

that Plaintiff lacks standing to sue. Our jurisdiction and the justiciability of Plaintiff’s claim are

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                                              No. 11-3027
threshold issues that we must always consider. However, we find that Defendant’s contentions are

meritless with respect to both matters.

        A.      Subject Matter Jurisdiction

        Although Defendant admits that diversity jurisdiction exists under 28 U.S.C. § 1332,

Defendant argues that under Ohio Revised Code § 3929.06, Plaintiff was required to file her action

against Defendant in the Lucas County Court of Common Pleas, which is the court that entered

judgment in the underlying action.

        Section 3929.06 governs rights of a judgment creditor and provides, in relevant part:

        If, within thirty days after the entry of the final judgment . . . the insurer that issued
        the policy of liability insurance has not paid the judgment creditor an amount equal
        to the remaining limit of liability coverage provided in that policy, the judgment
        creditor may file in the court that entered the final judgment a supplemental
        complaint against the insurer seeking the entry of a judgment ordering the insurer to
        pay the judgment creditor the requisite amount.

Ohio Rev. Code Ann. § 3929.06(A)(2) (emphasis added). Despite Defendant’s assertions, the word

“may” within the statute indicates that a judgment creditor is merely permitted—not mandated—to

file its action in the same court pronouncing judgment. Moreover, this Court has previously found

federal jurisdiction to be proper under § 3929.06 in cases where a plaintiff obtained a judgment in

state court and filed a diversity action in federal district court to recover damages against the insurer.

See Ridge v. Nat’l Am. Ins. Co., No. 93-4026, 1995 U.S. App. LEXIS 635, at *3–4 (6th Cir. Jan. 11,

1995) (per curiam) (“Complete diversity of citizenship exists between the parties, and this Court has

previously recognized the propriety of bringing a diversity action based on section 3929.06.”); see

also Ayers v. Kidney, 333 F.2d 812, 814 (6th Cir. 1964); Doepker v. Everest Indem. Ins. Co., No.



                                                    6
                                            No. 11-3027
5:07CV2456, 2008 U.S. Dist. LEXIS 6015, at *13 (N.D. Ohio Jan. 16, 2008). We therefore find that

our jurisdiction is not precluded by § 3929.06(A)(2).

       B.      Standing to Sue

       Defendant next argues that Plaintiff lacks standing to sue because Defendant is immune from

liability. The doctrine of standing to sue is well ingrained in our jurisprudence; it requires that the

plaintiff suffered actual injury that is traceable to the defendant’s conduct and can be remedied by

a judgment in the plaintiff’s favor. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992);

see Valley Forge Christian College v. Ams. United for Separation of Church & State, 454 U.S. 464,

474–75 (1982) (outlining additional prudential requirements). Without standing, there is no

justiciable case or controversy and this Court may not adjudicate the matter. Lujan, 504 U.S. at 561.

       Defendant’s arguments with respect to standing are frivolous. Defendant cites no authority

for the proposition that a defendant’s immunity precludes plaintiff’s standing. Indeed, Defendant

fails to realize that a defendant’s alleged immunity from suit does not prevent a plaintiff from

establishing standing, but instead affects the plaintiff’s ability to recover. Courts frequently grant

immunity to defendants without holding that the plaintiff lacks the threshold requirement of

standing. Here, Plaintiff has been injured by the Defendant’s refusal to pay damages to which

Plaintiff believes she is entitled, and an order of this Court requiring Defendant to pay on its policy

would indeed remedy Plaintiff’s grievance. Plaintiff has standing to sue.

II.    Damages

       We review de novo a district court’s decision to grant summary judgment. Holloway v.

Brush, 220 F.3d 767, 772 (6th Cir. 2000) (en banc). Summary judgment is appropriate where “there


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                                           No. 11-3027
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. Pro. 56(a). We view the facts and reasonable inferences in the light most

favorable to the nonmoving party. Holloway, 220 F.3d at 772.

       The district court found that Plaintiff was entitled to damages under TriCoastal’s insurance

policy with Defendant. Defendant argues first that it is immune from Plaintiff’s claim; in the

alternative, Defendant argues that Plaintiff’s claim is not covered by the plain language of

Endorsement Four, Section Two or is excluded from coverage under Exclusion 6 or the language

of Coverage C. We address each of these matters in turn, below.

       A.      Defendant’s Immunity

       As an initial matter, we address Defendant’s contention that it is immune from liability under

Article II, Section 35 of the Ohio Constitution, Ohio Revised Code §§ 4123.74, 4123.82(A),

3929.06, and state and federal case law. Defendant contends that under the Ohio Constitution’s

Article II, Section 35, employers are immune from employees’ negligence claims for workplace

accidents; because the employers are immune, the employers’ insurers are immune by extension.

Furthermore, Defendant argues that under Ohio Revised Code § 4123.82, insurers are allegedly not

permitted to issue policies that cover employee’s negligence claims against employers. Therefore,

according to Defendant, judgment against it is in contravention of Ohio constitutional and statutory

law.

       We may not reach the merits of Defendant’s immunity argument, because Defendant failed

to preserve that argument in the district court proceedings below. Although it raised the argument

in its Answer, Defendant waived the immunity argument when it failed to raise the argument in its


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                                             No. 11-3027
motion for summary judgment. While Defendant did mention Article 35 and one related Ohio case

in its motion, Defendant did so only in the context of informing the district court of its interpretation

of the meaning of its own policy. Indeed, Defendant never even used the word “immunity” at that

stage in the proceedings. After summary judgment was granted to Plaintiff on the damages issue,

Defendant did raise the immunity argument in its motion under Rule 59(e) to alter or amend

judgment and Rule 60(b)(6) for relief from judgment. Nonetheless, Defendant’s attempt to revive

its abandoned defense was futile, because “issues [are] waived when they are raised for the first time

in motions requesting reconsideration or in replies to responses.” Scottsdale Ins. Co. v. Flowers, 513

F.3d 546, 553 (6th Cir. 2008). Moreover, because Defendant has also abandoned its appeal of the

Rule 59 and Rule 60 motion by failing to argue that the denial of that motion was in error, we have

no opportunity to consider the immunity argument in the context of the court’s denial of that motion

either.

          Defendant asserts that it cannot be deemed to have abandoned the immunity defense, because

1) insurers may not waive immunity without express, written consent; 2) it has a right to per Ohio

Revised Code § 3929.06(C)(1) to raise any defense that its insureds could have raised at trial; and

3) judgment against it would offend Ohio constitutional law. Each of these arguments fail. First,

although it may be the case that we cannot give effect to a pre-trial waiver of an insurer’s immunity

without its written consent, see Lubrizol Corp. v. Nat’l Union Fire Ins. Co., 200 F. App’x 555,

560–61 (6th Cir. 2006), waiver of immunity in that context is entirely distinct from waiver or failure

to preserve an immunity argument in this Court for procedural purposes. See Scottsdale Ins. Co.,

513 F.3d at 552 (outlining the policy reasons for waiver and failure to preserve doctrines in the court


                                                   9
                                           No. 11-3027
system).    Second, although Defendant argues that it has a right per Ohio Revised Code §

3929.06(C)(1) to raise any defense that it could raise against its insureds—such as the immunity

argument—that statute does not save defenses that the Defendant itself failed to properly preserve

for appeal. Finally, our decision cannot be offensive to Ohio law when Ohio itself permits

employers to waive their immunity by express writing. See Lubrizol, 200 F. App’x at 560.

       B.      Liability Under the Policy

       Under Ohio law, which the parties agree governs this case, the interpretation of insurance

contract language is a question of law. United Nat’l Ins. Co. v. SST Fitness Corp., 182 F.3d 447, 449

(6th Cir. 1999); Lager v. Miller-Gonzalez, 896 N.E.2d 666, 669 (Ohio 2008. “A policy of insurance

is a contract and like any other contract is to be given a reasonable construction in conformity with

the intention of the parties as gathered from the ordinary and commonly understood meaning of the

language employed.” Dealers Dairy Prods. Co. v. Royal Ins. Co., 164 N.E.2d 745, 747 (Ohio 1960);

Andersen v. Highland House Co., 757 N.E.2d 329, 332 (Ohio 2001). “Where provisions of a

contract of insurance are reasonably susceptible of more than one interpretation, they will be

construed strictly against the insurer and liberally in favor of the insured.” Lane v. Grange Mut.

Cos., 543 N.E.2d 488, 490 (Ohio 1989). “Ambiguity exists only where a term cannot be determined

from the four corners of the agreement or where contract language is susceptible to two or more

reasonable interpretations.” Potti v. Duramed Pharm., Inc., 938 F.2d 641, 647 (6th Cir. 1991); see

Sunoco, Inc. v. Toledo Edison Co., 953 N.E.2d 285, 292 (Ohio 2011). Policy exclusions must be

clear to combat the general presumption that a claim is included in a policy. Andersen, 757 N.E.2d

at 332 (citing Home Indemn. Co. of N.Y. v. Plymouth, 64 N.E.2d 248 (Ohio 1945)). “[I]n order to


                                                 10
                                           No. 11-3027
defeat coverage, the insurer must establish not merely that the policy is capable of the construction

it favors, but rather that such an interpretation is the only one that can fairly be placed on the

language in question.” Andersen, 757 N.E.2d at 332 (internal quotation marks and citation omitted).

               1. Policy Coverage

       Plaintiff brought her claim under Endorsement Four, Section Two of the insurance policy,

which covers claims for:

       bodily injury and property damage caused by an occurrence and arising out of the
       Insured’s aviation operations and/or the possession, use, consumption or handling of
       any goods or products manufactured, constructed, altered, repaired, serviced, treated,
       sold, supplied or distributed by the Named Insured or its employees, and then only
       after such goods or products have ceased to be in the possession or under the control
       of the Insured.

This provision thus offers protection for injuries “arising out of” two possible things: 1) “aviation

operations” or 2) the “possession, use, consumption or handling or any goods or products” of the

named insured.

       Plaintiff contends that Zbedah’s death arose out of the former circumstance—an occurrence

related to “aviation operations.” It is undisputed that Zbedah was piloting TriCoastal’s plane and

that, due to TriCoastal’s negligent maintenance of the plane, the plane crashed and killed Zbedah

while in Zbedah’s control. The policy outlines the definition of “aviation operations” as inclusive

of the following:

       [A]ll operations arising from the ownership, maintenance or use of locations for
       aviation activities including that portion of roads or other accesses that adjoin these
       locations. Aviation Operations include all operations necessary or incidental to
       aviation activities.




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                                            No. 11-3027
Under the second sentence of the definition, “all operations necessary or incidental to aviation

activities” are said to be aviation operations. Surely, operations necessary to aviation activities

includes piloting and maintaining the plane. Thus, the definition of “aviation operations” captures

the activities at issue.

        Defendant next asserts that even if “aviation operations” encompasses Plaintiff’s claim, the

final clause of the endorsement, that liability attaches “only after such goods or products have ceased

to be in the possession or under the control of the Insured,” excludes the claim because TriCoastal’s

plane remained in Zbedah’s control at the time of the accident. Defendant misreads the plain

language of the endorsement. We agree with the district court’s conclusion that the language “after

such goods or products have ceased to be in the possession or under the control of the Insured”

explicitly applies only to the “goods or products” portion of the endorsement, not the “aviation

operations portion.” We therefore find that Plaintiff’s claim is covered under Endorsement Four,

Section Two.

                2. Policy Exclusions

        We next consider whether any exclusions bar Plaintiff’s claim. Endorsement Four, Section

Two states that it “is subject to the same exclusions as are applicable to Coverages B, C, D, and E

of this Policy.” The general exclusions section to the policy provides two potentially relevant

exclusions: Exclusion Five for exclusions “Under Coverages B, C, D, and E” and Exclusion Six for

exclusions “Under Coverages B, C, and D.” The parties agree that Exclusion Five would not affect

Plaintiff’s claim, but the bar on reimbursing named insureds under Exclusion Six would exclude

Plaintiff’s claim. Also relevant is the language of Coverage C, which Defendant alleges contains


                                                  12
                                            No. 11-3027
an applicable exclusion. Plaintiff does not concede that the Coverage C language would preclude

recovery.

       The parties dispute the meaning of the Endorsement Four, Section Two language—that the

endorsement “is subject to the same exclusions as are applicable to Coverages B, C, D, and E of this

Policy”—in terms of which exclusions are referenced. Defendant argues that the language means

that any exclusion that applies jointly or separately to Coverages B, or C, or D, or E will also apply

to the endorsement. Plaintiff, however, reads the endorsement clause as actually referring to the

heading of Exclusion Five. Alternatively, Plaintiff reads the endorsement language to mean that it

has the same exclusions as are applicable to all Coverages B, and C, and D, and E; under this

interpretation, the general Exclusion Five would still be the only applicable exclusion.

       We agree that there are several ways of interpreting the phrase, “the same exclusions as are

applicable to Coverages B, C, D, and E.” That phrase could mean that only exclusions that apply

to all coverages B, C, D, and E apply to the endorsement; that any exclusion that applies to those

coverages separately could apply to the endorsement; or that the phrase is referencing the headings

of the general policy exclusions and thus only Exclusion Five applies. None of these interpretations

is blatantly incorrect and all are plausible. Under Ohio law, ambiguity in an insurance policy is

construed against the drafter. See Andersen, 757 N.E.2d at 332; Lane, 543 N.E.2d at 490. Because

the endorsement language referencing the policy’s exclusions is ambiguous, we construe the

language in Plaintiff’s favor and find that only the exclusions listed in general Exclusion 5 apply.

And because Exclusion 5 does not preclude Plaintiff’s recovery under the policy, Defendant remains

liable for the judgment.


                                                 13
                                            No. 11-3027
III.   Post-Judgment Interest

       Finally, Plaintiff contends that a provision in the insurance policy also entitles her to post-

judgment interest on the entirety of the Lucas County judgment. The applicable policy language

provides that, “[w]ith respect to Coverages B, C, and D,” Defendant shall have a duty to defend suits

seeking damages for bodily injury and shall pay “all interest on the entire amount of any judgment

therein which accrues after entry of the judgment.” The provision thus expressly states that it only

applies to Coverages B, C, and D. Plaintiff, however, brought her claim under Endorsement Four

of the policy, not one of the three applicable coverages. Endorsement Four does not cross-reference

that provision or provide a similar provision of its own. We therefore find that Plaintiff is not

entitled to post-judgment interest.

       Plaintiff next argues that although she did not bring her claim under one of the applicable

coverages, she could have brought her claim under Coverage B and thus is entitled to the interest by

implication. This argument is obviously flawed because Plaintiff is not entitled to the benefits of

a particular coverage if she did not in fact bring her claim under that coverage.

       Because we affirm the district court’s denial of Plaintiff’s request for post-judgment interest,

it is unnecessary for us to decide whether Plaintiff’s request for post-judgment interest was untimely.

                                          CONCLUSION

       For the reasons discussed above, we AFFIRM the district court’s order granting partial

summary judgment to Plaintiff on the issue of damages and AFFIRM the district court’s order

granting partial summary judgment to Defendant on the issue of post-judgment interest.




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