Axis Surplus Insurance Company v. TriStar Companies, LLC

United States Court of Appeals
For the Eighth Circuit
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No. 23-1450
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Axis Surplus Insurance Company
Plaintiff - Appellee
v.
TriStar Companies, LLC
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri
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Submitted: November 14, 2023
Filed: March 4, 2024
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Before LOKEN, ERICKSON, and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
TriStar Companies, LLC (TriStar), held an insurance policy from AXIS
Surplus Insurance Company (AXIS) that provided coverage for bodily injury and
property damage liability. In 2021, a warehouse developed by TriStar, but already
possessed by Amazon, collapsed during a tornado, causing injuries and deaths.
AXIS sought a declaratory judgment that it had neither a duty to defend nor
indemnify TriStar for personal injury and wrongful death claims arising from the

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collapse. The district court1 granted AXIS’s motion for summary judgment and held
there was no coverage under the policy. We affirm.
I. Background
In 2017, TriStar was hired to manage the development and construction of a
warehouse in Edwardsville, Illinois (the Warehouse). Around June 2020, Amazon
took possession of the Warehouse. And by November 2020, TriStar received its last
payment related to the development of the Warehouse.
On December 10, 2021, a tornado hit the Warehouse, resulting in several
deaths and injuries. Following this tragic incident, several wrongful death and
personal injury lawsuits commenced against TriStar, claiming TriStar negligently
constructed the Warehouse.
TriStar carried a commercial general liability insurance policy (the Policy)
with AXIS. The Policy covered bodily injury and property damage liability and
stated that AXIS “will have the right and duty to defend the insured against any ‘suit’
seeking those damages.”
When TriStar demanded coverage under the Policy, AXIS denied coverage
and filed a complaint, seeking a declaration that it had no duty to defend or
indemnify TriStar for the underlying actions. TriStar answered and counterclaimed
for declaratory judgment in its favor along with a claim for breach of contract. The
parties filed competing motions for summary judgment.
The district court entered judgment in favor of AXIS, finding AXIS did not
have a duty to defend or indemnify TriStar because the Warehouse was not covered
by the Policy due to certain limitations and exclusions. Specifically, the district
1 The Honorable Audrey G. Fleissig, United States District Judge for the
Eastern District of Missouri.

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court found, inter alia, that the Schedule of Locations excluded coverage because the
Warehouse “is neither explicitly nor implicitly contained within the Schedule of
Locations.” TriStar appeals.
II. Analysis
We review de novo the district court’s grant of summary judgment.
Progressive N. Ins. Co. v. McDonough, 608 F.3d 388, 390 (8th Cir. 2010). Summary
judgment is appropriate “if the movant shows that 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). “Interpretation of an insurance policy is a matter of state law.”
McDonough, 608 F.3d at 390 (quoting Stan Koch & Sons Trucking, Inc. v. Great W.
Cas. Co., 517 F.3d 1032, 1039 (8th Cir. 2008)). Here, we apply Missouri substantive
law.
We give policy terms “the meaning which would be attached by an ordinary
person of average understanding if purchasing insurance.” Westchester Surplus
Lines Ins. Co. v. Interstate Underground Warehouse & Storage, Inc., 946 F.3d 1008,
1010 (8th Cir. 2020) (quoting Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132
(Mo. 2007)). We “evaluate policies as a whole.” Ritchie v. Allied Prop. & Cas. Ins.
Co., 307 S.W.3d 132, 135 (Mo. 2009). “If the policy language is clear and
unambiguous, it must be construed as written.” Doe Run Res. Corp. v. Am. Guar. &
Liab. Ins., 531 S.W.3d 508, 511 (Mo. 2017). An ambiguity only exists “if a phrase
is ‘reasonably open to different constructions.’” Id. (quoting Mendenhall v. Prop.
& Cas. Ins. Co. of Hartford, 375 S.W.3d 90, 92 (Mo. 2012)). If policy language is
ambiguous, “[a]ny ambiguity is resolved in favor of the insured.” Owners Ins. Co.
v. Craig, 514 S.W.3d 614, 617 (Mo. 2017). “Under Missouri law, the insured has
the burden of proving coverage, and the insurer has the burden of proving that an
exclusion applies.” Am. Family Mut. Ins. Co. v. Co Fat Le, 439 F.3d 436, 439 (8th
Cir. 2006).

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As the insured, TriStar has the burden of proving coverage. See id. Here, the
Policy’s declarations page states the Policy’s essential terms, including language
limiting coverage to “all premises you own, rent, or occupy . . .
[p]er schedule of locations on file with carrier.” The Policy further contains a
Limitation of Coverage clause stating the Policy only covers an occurrence that takes
place in the “coverage territory” shown in the Schedule of Locations.
The Schedule of Locations lists eighteen locations, which contain mailing
addresses, names of entire streets or highways, and even names of entire cities. For
example, Location Number 2 (920 S Main Street, Saint Charles, MO 63301) is a
mailing address, while Location Number 12 (St Charles MO, Saint Charles, MO
63301) describes an entire city. None of the listed locations contain the Warehouse’s
mailing address.
Without the Schedule of Locations’ limiting language, the Policy would reach
an absurd result of covering an entire city. Such a reading is untenable. See Brazil
v. Auto Owners Ins. Co., 3 F.4th 1040, 1042 (8th Cir. 2021) (quoting Ringstreet
Northcrest, Inc. v. Bisanz, 890 S.W.2d 713, 718 (Mo. Ct. App. 1995)) (“A
construction which attributes a reasonable meaning to all the provisions of the
agreement is preferred to one which leaves some of the provisions without function
or sense.”). See also Dibben v. Shelter Ins. Co., 261 S.W.3d 553, 556 (Mo. Ct. App.
2008) (“In interpreting an insurance contract, we must endeavor to give each
provision a reasonable meaning and to avoid an interpretation that renders some
provisions useless or redundant.”).
Like the district court, we interpret the Schedule of Locations to provide
coverage for all premises “owned, rented, or occupied” by TriStar either within or
at any of the listed locations in the Schedule of Locations. Here, because there is no
dispute that TriStar did not own, rent, or occupy the Warehouse when it collapsed,
the underlying actions related to the Warehouse incident are not covered by the
Policy.

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III. Conclusion
For the foregoing reasons, we affirm the order of the district court.
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