                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-1575


PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY,

                Plaintiff - Appellant,

           v.

JO A. LEWIS; ROGER W. LEWIS; EXCEL MECHANICAL LLC,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.    Patrick Michael Duffy, Senior
District Judge. (2:13-cv-00920-PMD)


Argued:   May 10, 2016                     Decided:   May 27, 2016


Before MOTZ, KING, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: John Robert Murphy, MURPHY & GRANTLAND, P.A., Columbia,
South Carolina, for Appellant.    Bert Glenn Utsey, III, PETERS,
MURDAUGH, PARKER, ELTZROTH & DETRICK, P.A., Walterboro, South
Carolina; Jenny Anderson Horne, JENNY HORNE LAW FIRM, LLC,
Summerville, South Carolina, for Appellees. ON BRIEF: Jason P.
Luther, MURPHY & GRANTLAND, P.A., Columbia, South Carolina, for
Appellant. Lee Deer Cope, PETERS, MURDAUGH, PARKER, ELTZROTH &
DETRICK, P.A., Hampton, South Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Pennsylvania National Mutual Casualty Company brought this

declaratory judgment action against Roger W. Lewis, his wife, Jo

A. Lewis, and his solely owned company, Excel Mechanical, LLC.

Penn National sought a declaration that the commercial general

liability policy (the Policy) it had issued to Excel did not

cover the claim proffered by Mr. Lewis and Excel.                            After a bench

trial,     on       the   basis      of     extensive      findings       of     fact     and

conclusions of law, the district court declared that the Policy

did provide coverage to Excel and Mr. Lewis.                              Penn National

appeals.

     This       action      arises    out    of    a    case    filed    by    Mrs.     Lewis

against Excel and her husband, in which she alleges that on

September       4,    2011,    she    was     injured      in    a     boating       accident

involving       a    watercraft       owned       and    operated       by     Mr.    Lewis.

Specifically, Mrs. Lewis asserts that in attempting to ground

the watercraft on a sandbar, Mr. Lewis caused a collision that

trapped Mrs. Lewis’s lower leg between the boat and the sandbar,

resulting in serious permanent injuries.                          Mrs. Lewis further

alleges that at the time of the accident “there were two other

passengers      on    the    Boat    whom    [Mr.]      Lewis    was    entertaining       as

business prospects of Excel” and so Mr. Lewis “was engaged in

the conduct of Excel’s business.”                       In light of the purported

business purpose of the trip, Mrs. Lewis, who seeks actual and

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punitive damages, asserts that Excel is vicariously liable for

Mr. Lewis’s actions.

       In March 2012, six months after the accident, Mr. Lewis

filed a claim with Penn National, reporting that he was “in the

boat   . . .       with    a    potential         customer”    at       the    time    of   the

accident     and    that       the    trip    was     therefore     a    business-related

activity     covered      by    his    company’s        Penn   National         Policy.      In

relevant part, that Policy provides:

       SECTION II - WHO IS AN INSURED
       1. If you are designated in the Declarations as:
       * * *
       c.   A limited liability company, you are an insured.
       Your members are also insureds, but only with respect
       to the conduct of your business.    Your managers are
       insured, but only with respect to their duties as your
       managers.

The Policy further provides liability coverage for damages that

an “insured becomes legally obligated to pay” as a result of

“bodily injury or property damage.”

       In January 2013, Mrs. Lewis filed a federal maritime tort

action against Mr. Lewis and Excel, seeking compensation for her

injuries.      In     response,            Penn   National     initiated        this   action

against the Lewises and Excel, seeking a declaratory judgment

that   the   Policy       does       not    cover     the   accident,         and   that    Penn

National therefore has no duty to indemnify Mr. Lewis or Excel

or defend them in the underlying action.




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       At the bench trial, Penn National maintained that the boat

trip       was   not   business-related        and    that     Mr.    Lewis   was   only

claiming it was to obtain coverage.                    Penn National pointed to

the fact that no one, besides Mr. Lewis, testified that they had

thought the trip was business-related, that Mr. Lewis had filled

the boat’s gas tank that day but not expensed the cost to Excel,

and that he had not submitted his Penn National claim until six

months after the accident. 1

       Mr. Lewis testified at trial that he routinely entertained

potential        customers      on   his       boat     to     cultivate      business

relationships.         He conceded that he had not bought gas that day

but contended that he did expense to Excel the gas he had bought

a week prior in anticipation of the outing.                           Mr. Lewis also

explained that he did not file his claim for coverage under the

Penn       National    Policy   immediately          because    his    life   was   “in

       1
       Penn National sought to admit evidence related to a State
Farm insurance policy, under which the Lewises had received
$5,000 for medical payments resulting from the accident.
Mr. Lewis had first contacted State Farm only ten days after the
accident, which Penn National argued made his much later Penn
National claim suspect.      A State Farm agent stated in a
deposition that, had State Farm been aware the accident was
business-related, the Lewises would not have qualified for the
payouts they received, but State Farm’s claim file did not
contain any indication that whether the trip was business-
related had ever come up; there appeared to have been no inquiry
from State Farm and no representations from Mr. Lewis either
way.    Contrary to Penn National’s contention on appeal, the
district court did not abuse its discretion in excluding all
evidence related to the State Farm policy as “irrelevant” and
potentially “confusing [to] the [advisory] jury.”


                                           4
turmoil” while he helped his wife recover from her injuries, and

because   he    only   discovered   he     had   watercraft   coverage      when

reviewing      his   policy   months     later    in   connection    with     an

unrelated event.

     The district court found Mr. Lewis credible, based on his

“presentation and demeanor on the witness stand.”                   The court

concluded that the Penn National policy was unambiguous, and

that “at the time of the Trip and resulting Accident, Mr. Lewis

was operating the Boat in the course of his employment and with

respect to the conduct of Excel’s business and his duties as the

manager of Excel,” as required for coverage under the Policy.

The court noted that “[t]he fact that the Trip included or may

have included elements of familial entertainment and friendly

fellowship does not deprive the Trip of its business purpose.” 2

Accordingly, the court declared that Lewis’s claim qualified for

coverage, indemnification, and defense under the Penn National

Policy.




     2 An advisory jury convened by the district court, with the
consent of the parties, agreed with this conclusion. The court
instructed the advisory jury that it must decide whether Lewis
“engaged in any [business] activities” during the trip.      The
advisory jury returned a unanimous verdict that Lewis had
engaged in “activities with respect to the conduct of Excel
Mechanical’s business” and “with respect to his duty as Excel
Mechanical’s manager during the boat trip.”


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     Having   carefully   considered   the   controlling   law   and   the

parties’ briefs and oral arguments, we affirm on the reasoning

of the thorough opinion of the district court.

                                                                 AFFIRMED




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