UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHERYLE KINCAID; CHERYLN KINCAID,
by her next friend, CHERYLE
KINCAID,
Plaintiffs,

v.

PROPERTY TECHNICIANS,
INCORPORATED, d/b/a United Property
Management Company; JON VEARD,                                      No. 97-2136
President; ERIC VEARD,
Defendant & Third Party
Plaintiff-Appellants,

v.

INDIANA INSURANCE COMPANY, a
corporation,
Third Party Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
David A. Faber, District Judge.
(CA-94-796)

Submitted: February 10, 1998

Decided: March 20, 1998

Before WILKINSON, Chief Judge, and MURNAGHAN and
HAMILTON, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

Mark A. Bramble, Brent K. Kesner, KESNER, KESNER & BRAM-
BLE, Charleston, West Virginia, for Appellants. James M. Hender-
son, II, WHITE & HENDERSON, Princeton, West Virginia, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Property Technicians, Inc., appeals from the district court's order
granting summary judgment to Indiana Insurance Co. on Property
Technicians' declaratory judgment action. We have previously
granted motions to submit this case on the briefs. Finding no error,
we affirm.

I.

Cherlye and Cheryln Kincaid ("Kincaids") were residents of Fay-
ette Manor Apartments in Oak Hill, West Virginia, an apartment com-
plex managed by Property Technicians, Inc. ("Property Technicians"),
an Ohio corporation engaged in the management of various proper-
ties. The Kincaids filed a complaint against Property Technicians, Jon
Veard, its president, and Eric Veard, an officer, alleging that Property
Technicians had discriminated against the Kincaids in violation of the
Fair Housing Act, the Rehabilitation Act, and the West Virginia
Human Rights Act.

Property Technicians was the named insured on a policy issued by
Indiana Insurance Company ("Indiana"). (JA 220). Property Techni-
cians listed as its business description "managing apartment com-
plexes all over the state of Ohio." Property Technicians did not list
any West Virginia business operations. In form language in another
part of the policy, the "coverage territory" was listed as the United

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States, Canada, and Puerto Rico. Indiana was not licensed to insure
property in West Virginia.

When Property Technicians sought indemnification and defense
against the Kincaids' suit from Indiana, Indiana refused to defend and
indemnify Property Technicians. Indiana contended that the policy
only covered Property Technicians' business activities in the State of
Ohio, and did not insure any business activities in the management of
property in West Virginia. Property Technicians filed a third-party
complaint against Indiana for declaratory relief, seeking a declaration
that Indiana was obligated to defend and indemnify Property Techni-
cians, and requesting damages arising out of Indiana's denial of cov-
erage and defense. Property Technicians then moved for summary
judgment on its declaratory judgment count.

The district court denied Property Technicians' motion and entered
judgment for Indiana. The district court held that the policy did not
cover suits arising from Property Technicians' management of rental
properties in West Virginia, and thus that Indiana was not obligated
to defend and indemnify Property Technicians on the Kincaids' suit.
Property Technicians appeals from the summary judgment order.*

II.

A grant of summary judgment is reviewed de novo. See Shaw v.
Stroud, 13 F.3d 791, 798 (4th Cir. 1994). Summary judgment is
appropriate when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.

Although throughout the policy Property Technicians listed as its
business description "managing apartment complexes all over the
state of Ohio," and made no mention of any properties which it man-
aged in West Virginia, the form language of the policy listed the
"coverage area" as being the entire United States, Canada, and Puerto
_________________________________________________________________
*After the district court's grant of summary judgment in favor of Indi-
ana, Property Technicians settled with the Kincaids. The West Virginia
property was insured under a policy of liability insurance issued by
Westfield Insurance Company ("Westfield"). Westfield consummated a
settlement solely on behalf of Property Technicians; all claims against
the Veards individually were dismissed with prejudice in conjunction
with the settlement.

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Rico. Accordingly, on the face of the policy, whether the West Vir-
ginia business operations were insured is arguably susceptible to two
reasonable interpretations. See Pilling v. Nationwide Mut. Fire Ins.
Co., ___ S.E.2d ___, ___, No. 23949, 1997 WL 775570, *2 (W. Va.
Dec. 17, 1997); Hamric v. Doe, ___ S.E.2d ___, ___, No. 23964,
1997 WL 752151, *7 (W. Va. Dec. 5, 1997); Ald Concrete & Grad-
ing Co. v. Chem-Masters Corp., 677 N.E.2d 362, 366 (Ohio Ct.
App.), appeal not allowed, 673 N.E.2d 148 (Ohio 1996).

Upon consideration of the circumstances and the policy in its
entirety, however, it is clear that the intention of the parties was for
the Indiana policy to cover Property Technicians' business risks aris-
ing out of its managing of Ohio properties only, and that the parties
did not intend for the policy to insure Property Technicians' business
risks arising from operation of West Virginia property. The policy
was issued in Ohio. Throughout the policy Property Technicians uni-
formly listed only its operation and management of Ohio properties,
and the operation and management of West Virginia properties was
not mentioned. The West Virginia property subject to the underlying
suit was insured by another insurance company, which defended and
indemnified all Defendants. Further, Indiana was not licensed to
transact insurance business in West Virginia. Thus, neither Property
Technicians nor Indiana could have intended for the Indiana policy to
insure the operation of rental properties in West Virginia. See Hamric,
1997 WL 752151, at *8; Ald Concrete, 677 N.E.2d at 366; Boso v.
Erie Ins. Co., 669 N.E.2d 47, 51 (Ohio Ct. App. 1995), appeal not
allowed, 664 N.E.2d 1293 (Ohio 1996); see also W. Va. Code Ann.
§§ 33-4-1, 33-3-20 (Michie 1996). Accordingly, the Indiana policy
did not insure Property Technicians' business operations in West Vir-
ginia, and Indiana was not obligated to defend and indemnify Prop-
erty Technicians in the Kincaids' suit.

For these reasons, we affirm the district court order granting sum-
mary judgment to Indiana on Property Technicians' declaratory judg-
ment action.

AFFIRMED

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