               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0364n.06

                                       Case No. 15-6282

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                 FILED
                                                                             Jun 30, 2016
HELEN KELLEY,                                        )                   DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellant,                          )
                                                     )        ON APPEAL FROM THE
v.                                                   )        UNITED STATES DISTRICT
                                                     )        COURT FOR THE EASTERN
WESTFIELD INSURANCE COMPANY;                         )        DISTRICT OF KENTUCKY
TRANSAMERICA LIFE INSURANCE,                         )
                                                     )
       Defendants-Appellees.                         )
                                                                                 OPINION


BEFORE: MOORE, McKEAGUE, and DONALD, Circuit Judges.

       PER CURIAM. Helen Kelley asks this court to read only a portion of her settlement

agreement with the defendant Westfield Insurance Company and then declare its terms

ambiguous. We, however, read the entirety of a contract when determining if its terms are

ambiguous—and the subsequent provisions of the settlement agreement remove any ambiguity.

We therefore AFFIRM the district court’s dismissal of the case with prejudice.

                                               I

       On April 28, 1983, the plaintiff’s late husband, William Kelley II, was involved in a

severe accident that resulted in his complete and permanent paralysis. A lawsuit followed, in

which Mr. Kelley and his wife alleged negligence, Mr. Kelley sought damages for personal

injuries resulting from the accident, and plaintiff Helen Kelley sought damages for loss of
Case No. 15-6282, Kelley v. Westfield Ins. Co., et al.


consortium.   The claims were settled with the negligent party and their insurance carrier,

defendant Westfield Insurance Company (Westfield), on January 4, 1985.

       The settlement agreement provided for a structured settlement of the Kelleys’ claims.

Pertinent here is Westfield’s agreement to make lifetime payments of five thousand dollars per

month, guaranteed for a minimum of thirty years. The settlement agreement states:

       In consideration for this Release, Westfield Insurance Company (hereinafter
       referred to as “the Insurer”) agrees to make the following payments:

       Eight Hundred Thousand Dollars ($800,000.00) on Jan. 4, 1985;

       Five Thousand Dollars ($5,000.00) per month, for life, guaranteed for thirty (30)
       years beginning February 4, 1984.

R. 8-2, Agreement at 1–2, Page ID 69–70. The settlement agreement also contains specific

terms regarding the death of either or both of the Kelleys before the expiration of the thirty-year

period on February 4, 2015:

       In the event of the death of William E. Kelley, II prior to February 4, 2015, the
       payments in the amounts heretofore set forth and on the dates hereinabove
       mentioned, shall continue to his wife, Helen Kelley, said payments to continue
       until February 4, 2015.

       In the event of the death of Helen Kelley prior to February 4, 2015, the payments
       in the amounts heretofore set forth and on the dates hereinabove mentioned, shall
       continue to William E. Kelley, II, said payments to continue as set forth above.

       In the event that both William E. Kelley, II and Helen Kelley die prior to
       February 4, 2015, the payments in the amounts heretofore set forth and on the
       dates hereinabove mentioned, shall pass into the estate of William E. Kelley, II or
       Helen Kelley, whichever lives longer, said payments to continue until February 4,
       2015.

Id. at 2–3, Page ID 70–71. The agreement was drafted by the attorney for Westfield. The

Kelleys were represented by counsel. All parties signed the agreement.

       The settlement agreement also gave Westfield the right to assign its duties and

obligations for future payments to Transamerica Annuity Service Corporation—a right that

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Case No. 15-6282, Kelley v. Westfield Ins. Co., et al.


Westfield exercised. The agreement further provided that all payments to be made, except for

the initial $800,000 payment, could be funded by the purchase of an annuity from Transamerica

Life Insurance Company.

        Mr. Kelley died on June 22, 2012. On July 19, 2012, Transamerica sent a letter to Helen

Kelley informing her that the final monthly payment would be paid on January 4, 2015. Helen

Kelley filed the present lawsuit against Westfield and Transamerica in state court on February 4,

2015, after Transamerica ceased the monthly payments. The case was removed to federal court

on the basis of diversity jurisdiction.

        Transamerica moved for the case to be dismissed and Westfield moved for summary

judgment. On October 22, 2015, the district court granted both motions and dismissed the case

with prejudice. Helen Kelley now appeals.

                                                II

        We review a district court’s grant of a motion for dismissal de novo. First Am. Title Co.

v. Devaugh, 480 F.3d 438, 443 (6th Cir. 2007). To survive a motion to dismiss, a complaint

“must allege facts which, if proved, would entitle [the plaintiff] to relief.” Id. We also review a

district court’s grant of summary judgment de novo. Chen v. Dow Chem. Co., 580 F.3d 394, 400

(6th Cir. 2009). Summary judgment is appropriate where “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

        “It is of course a fundamental tenet of this jurisdiction that the unambiguous language of

a contract will be enforced as written and that the courts will not re-write the contract in

contradiction of its plain meaning.”      Wehr Constructors, Inc. v. Assurance Co. of Am.,

384 S.W.3d 680, 685 (Ky. 2012). “It has long been a rule of interpretation that a contract must

be construed as a whole[.]” Ingram v. State Prop. & Bldgs. Comm’n, 309 S.W.2d 169, 172 (Ky.



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Case No. 15-6282, Kelley v. Westfield Ins. Co., et al.


1957); see also Smith v. Crimson Ridge Dev., LLC, 410 S.W.3d 619, 621 (Ky. Ct. App. 2013)

(“A contract is interpreted by looking solely to the four corners of the agreement. Unambiguous

terms contained within the contract are interpreted in accordance with their ordinary meaning,

without resort to extrinsic evidence.” (citations and internal quotations omitted)).          “[A]n

ambiguous contract is one capable of more than one different, reasonable interpretation.” Frear

v. P.T.A. Indus., Inc., 103 S.W.3d 99, 106 n.12 (Ky. 2003) (quoting Central Bank & Trust Co. v.

Kincaid, 617 S.W.2d 32, 33 (Ky. 1981)).

       Kelley argues that the settlement agreement is ambiguous because its statement that

“Westfield Insurance Company . . . agrees to make the following payments: . . . Five Thousand

Dollars ($5,000.00) per month, for life, guaranteed for thirty (30) years beginning February 4,

1984” does not specify whose life is the measuring life. R. 8-2, Agreement at 1–2, Page ID 69–

70. She argues that the subsequent language (specifying whether and how long payments would

continue in the event of her death, Mr. Kelley’s death, or both of their deaths) fails to clarify the

language. We disagree.

       Having duly considered the district court’s opinion in light of Kelley’s appellate

arguments, we find no reversible error. Although the district court incorrectly assumed that this

was an insurance contract and so subject to stricter standards of interpretation, that assumption

was of no consequence because the terms of the contract were unambiguous. The settlement

agreement was clear: “In the event of the death of William E. Kelley, II prior to February 4,

2015, the payments in the amounts heretofore set forth and on the dates hereinabove mentioned,

shall continue to his wife, Helen Kelley, said payments to continue until February 4, 2015.”

R. 8-2, Agreement at 2, Page ID 70. Her arguments to the contrary are meritless and are fairly




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Case No. 15-6282, Kelley v. Westfield Ins. Co., et al.


and adequately addressed in the district court’s opinion. To issue another opinion reiterating the

analysis would be duplicative and unnecessary.

       Accordingly, we AFFIRM the order of the district court.




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