                                                                                 [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                           FILED
                             ________________________                 U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                                                          AUGUST 18, 2000
                                     No. 99-14419
                                                                         THOMAS K. KAHN
                             ________________________                         CLERK
                            D. C. Docket No. 1:95-CV-114-2

YORK INSURANCE COMPANY,

                                                           Plaintiff-Appellee,

                                            versus


WILLIAMS SEAFOOD OF ALBANY, INC.,
WEBB PROPERTIES, INC., and
OXFORD CONSTRUCTION COMPANY, INC.


                                                           Defendants-Appellants.

                              ________________________

                      Appeal from the United States District Court
                          for the Middle District of Georgia
                           _________________________
                                  (August 18, 2000)


Before TJOFLAT, WILSON and FLETCHER*, Circuit Judges.

_________________________
      *Honorable Betty B. Fletcher, U.S. Circuit Judge for the Ninth Circuit, sitting by
      designation.

WILSON, Circuit Judge:
CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF GEORGIA,

PURSUANT TO O.C.G.A. § 15-2-9.



TO THE SUPREME COURT OF GEORGIA AND ITS HONORABLE

JUSTICES:

      Williams Seafood of Albany, Inc., Webb Properties, Inc., and Oxford

Construction Company, Inc. (“Williams”) appeal a declaratory judgment granted to

York Insurance Company (“York”) after a bench trial. Since the dispositive

question is unsettled under Georgia law, we certify its resolution to the Georgia

Supreme Court.

                               I. BACKGROUND

      York issued a policy of insurance to Williams covering Williams’s

restaurant. The policy excluded losses or damage stemming directly or indirectly

from floods, but specifically covered losses stemming from sinkhole collapses.

Sometime during or immediately after a flood, Williams’s building collapsed into a

sinkhole and suffered a total loss. Williams filed a claim with York for the loss,

which York denied because its investigation revealed that the loss was caused

directly or indirectly by the flood. York then sued for a declaratory judgment that


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the loss was not covered, and Williams counterclaimed seeking coverage for its

loss.

        The parties agreed that the sinkhole collapse caused the property damage,

but disputed whether the flood contributed to the sinkhole collapse. The district

court ruled that the policy clearly excluded coverage for any damages resulting

from flood, and held a bench trial to determine whether the flood directly or

indirectly caused Williams’s claimed loss. After trial, the district court found that

the “greater weight” of trial testimony and evidence “supports the finding that the

loss suffered by [Williams] was directly or indirectly caused by flood water . . . .”

Therefore, the court granted York a declaratory judgment absolving York of all

liability for Williams’s collapsed building loss. Williams appeals.

                                 II. DISCUSSION

        This case turns on whether the insurance policy’s flood exclusion trumps its

additional sinkhole collapse coverage provision. Several principles of contract

construction under Georgia law guide this inquiry. First, the insurance policy

should “be considered as a whole and each provision is to be given effect and

interpreted so as to harmonize with the others.” Boardman Petroleum, Inc. v.

Federated Mut. Ins. Co., 498 S.E.2d 492, 494 (Ga. 1998). If the terms of an

insurance contract are “unambiguous, clear, and capable of only one reasonable


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construction, they must be taken in their plain, ordinary and popular sense as may

be supplied by common dictionaries.” Lemieux v. Blue Cross & Blue Shield, 453

S.E.2d 749, 751 (Ga. Ct. App. 1995). In construing the policy, “[t]he test is not

what the insurer intended its words to mean, but what a reasonable person in the

position of the insured would understand them to mean. The policy should be read

as a layman would read it and not as it might be analyzed by an insurance expert or

an attorney.” United States Fire Ins. Co. v. Hilde, 322 S.E.2d 285, 288 (Ga. Ct.

App. 1984) (citations omitted).

      If, however, an insurance policy is confusing to a layman, the policy is

ambiguous. See Isdoll v. Scottsdale Ins. Co., 466 S.E.2d 48, 50 (Ga. Ct. App.

1995). If a policy is ambiguous, the policy shall be construed against the drafter.

See id. York bears the burden of proving that the flood exclusion applies. See

Nationwide Mut. Fire Ins. Co. v. Rhee, 287 S.E.2d 257, 260 (Ga. Ct. App. 1981).

“Exceptions, limitations and exclusions to insuring agreements require a narrow

construction on the theory that the insurer, having affirmatively expressed

coverage through broad promises, assumes a duty to define any limitations on that

coverage in clear and explicit terms.” Alley v. Great Am. Ins. Co., 287 S.E.2d 613,

616 (Ga. Ct. App. 1981). “[E]xclusions will be ‘strictly construed against the




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insurer and in favor of coverage.’” Quesada v. Director, FEMA, 753 F.2d 1011,

1014 n.4 (11th Cir. 1985) (citations omitted).

      The conflicting insurance policy sections are as follows:

      B.     EXCLUSIONS

      1.     We will not pay for loss or damage caused directly or indirectly by
             any of the following. Such loss or damage is excluded regardless of
             any other cause or event that contributes concurrently or in any
             sequence to the loss.

             ....

             g.     Water

                    (1)     Flood, surface water. . . .

             ....

      D.     ADDITIONAL COVERAGE - COLLAPSE
             We will pay for loss or damage caused by or resulting from risks of
             direct physical loss involving collapse of a building or any part of a
             building caused only by one or more of the following:

             1.     The “specified causes of loss” or breakage of building glass, all
                    only as insured against in this Coverage Part. . . .

             ....

      F.     DEFINITIONS
             “Specified Causes of Loss” means the following: . . . sinkhole
             collapse . . . .

             1.     Sinkhole collapse means the sudden sinking or collapse of land
                    into underground empty spaces created by the action of water
                    on limestone or dolomite.

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      Several interpretations of the conflicting policy provisions are reasonable.

Williams urges us to rule that the “additional coverage” provision is additional to

and separate from the other portions of the contract (namely, the Section B

exclusions). Therefore, losses stemming from a sinkhole collapse always would be

covered, no matter what contributed to the sinkhole collapse. York, on the other

hand, argues that losses stemming from a flood are always excluded as per Section

B(1), even if the flood merely contributes to an otherwise covered cause (such as a

sinkhole collapse). Thus, according to York, the Section B flood exclusion and the

Section D sinkhole collapse coverage provisions do not even conflict; flood

damage is always excluded, but sinkhole collapse damage is only covered if no

excluded causes contributed to the sinkhole collapse.

      Each argument, although plausible, has potential weaknesses. For example,

if Williams prevails, the policy exclusion for losses stemming from floods is

arguably rendered superfluous. Alternatively, if the insurer prevails, the additional

sinkhole collapse coverage is worth nothing, since all sinkholes could arguably be

blamed on some excluded precipitating cause (no matter how remote).

      Williams argues that Ovbey v. Continental Ins. Co., 613 F. Supp. 726 (N.D.

Ga. 1985), aff’d 782 F.2d 178 (11th Cir. 1986) (without opinion) controls. In

Ovbey, the court looked to the immediate and proximate cause of the collapse of


                                          6
the building to determine whether the loss was covered. Applying Ovbey to the

facts at hand, the sinkhole collapse was the proximate cause, and the flood was a

contributory cause. Hence, the loss would be covered.

      York distinguishes Ovbey on the ground that the policy in Ovbey did not

contain the critical language found in the present policy, to wit: “Such [flood] loss

or damage is excluded regardless of any other cause or event that contributes

concurrently or in any sequence to the loss.” (emphasis added). York instead

points to Underwood v. United States Fidelity & Guar. Co., 165 S.E.2d 874 (Ga.

Ct. App. 1968) to support its position that policy exclusions must be given effect

even if other causes contribute to the loss. However, in Underwood, no “additional

coverage” provision conflicted with the exclusion provision, as with the present

situation. Thus, no Georgia caselaw definitively answers the question before us.

      Because there is no controlling Georgia law on this issue, we certify the

following question to the Georgia Supreme Court: Where the “exclusions”

section of an insurance policy excludes coverage for damage resulting directly

or indirectly from floods, but the “additional coverage - collapse” section

specifically includes sinkhole collapse damage, does the policy cover damage

produced by a sinkhole collapse that was precipitated by a flood?

                                III. CONCLUSION


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      We certify the above-styled question to the Georgia Supreme Court. The

phrasing used in this certified question should not restrict the Supreme Court's

consideration of the problem posed by this case. This extends to the Supreme

Court's restatement of the issues and the manner in which the answer is given. To

assist the Supreme Court's consideration of the case, the entire record, along with

the briefs of the parties, shall be transmitted to the Supreme Court of Georgia.

QUESTION CERTIFIED.




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