MARSHA R. HINTON AND THOMAS F. HINTON
PEKIN INSURANCE COMPANY
OF JUDGMENT: 02/09/2018
COUNTY CIRCUIT COURT, HON. DAL WILLIAMSON JUDGE.
COURT ATTORNEYS: LAWRENCE E. ABERNATHY, III SAMUEL S. McHARD
DORRANCE AULTMAN RICHARD M. BURGLAND MARK D. MORRISON MATTHEW
D. MILLER ANN GRIFFIN.
ATTORNEYS FOR APPELLANTS: LAWRENCE E. ABERNATHY, III LESLIE
D. ROUSSELL SAMUEL S. McHARD.
ATTORNEY FOR APPELLEE: DORRANCE AULTMAN.
Timothy Hinton died from injuries sustained in a fall from a
tree stand. Timothy's parents, Marsha and Thomas Hinton
(the "Hintons"), brought a wrongful-death suit
against the manufacturer of the tree stand, C&S Global
Imports, Inc. ("C&S"), and against Pekin
Insurance Company ("Pekin").
After filing their third amended complaint, the Hintons filed
a motion for partial summary judgment against Pekin. The
Hintons claimed that Pekin waived its defenses to coverage or
should be estopped from asserting any coverage defenses.
Among other arguments, the Hintons maintained that Pekin
failed to defend C&S, did not file a declaratory-judgment
action and allowed a default judgment against C&S. The
Jones County Circuit Court denied the Hintons' motion.
Pekin then moved for summary judgment. It argued that the
insurance policy excluded coverage for tree or deer stands
and related equipment. The circuit court granted Pekin's
motion and entered a final judgment dismissing Pekin from the
The Hintons now appeal both of the circuit court's
rulings. After review, we affirm the order denying
partial summary judgment to the Hintons, the order granting
summary judgment to Pekin and the final judgment dismissing
Pekin from the suit.
AND PROCEDURAL HISTORY
Timothy Hinton died on November 18, 2012. At the time of his
fall, Timothy was wearing a fall-arrest system which included
a full-body harness, tether and tree strap. Timothy had
purchased the tree stand and fall-arrest system from The
Sportsman's Guide, Inc. ("TSG"), in 2009.
C&S had manufactured the items and marketed them to TSG.
Pekin insured C&S at the time of Timothy's injury and
Initial Insurance Policy
In January 2011, C&S applied for insurance with Pekin.
Comprehensive Insurance Services, Inc.
("Comprehensive"), an insurance agency, delivered
the commercial insurance application to Pekin. On the
application, the box entitled "REMARKS/PROCESSING
POLICY EXCLUSION: THIS POLICY SHALL NOT IN ANY WAY EXTENT
[sic] COVERAGE TO DEER/TREE STANDS OR ANY RELATED EQUIPMENT.
box entitled "LOSS HISTORY," the application
referenced an "INJURY FROM USE OF TREE STAND" in
Based on the application, Pekin issued Businessowners Policy
No. 00BU51626-O to C&S for the policy period of January
31, 2011, to January 31, 2012. In the policy, the
"Businessowners Form Schedule" listed the
"Forms And Endorsements Attached To This Policy."
Among these thirty-two entries, the contested exclusion in
this appeal was listed: "481T 1078 Amendment of
Policy" (the "481T"). The 481T was attached to
the policy as the second endorsement. In its entirety, it
AMENDMENT OF POLICY
This endorsement. [sic] effective 01/31/11 forms a part of
policy No. 00BU51626-0
Issued to C & S Global Imports INC by PEKIN INSURANCE
It is agreed that as of the effective date of this
endorsement this policy is amended in the following
EXCLUSION DESIGNATED PRODUCTS THIS ENDORSEMENT MODIFIES
INSURANCE PROVIDED UNDER THE FOLLOWING: COMMERCIAL GENERAL
LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS
LIABILITY COVERAGE PART SCHEDULE DESIGNATED PRODUCT(S)
DEER/TREE STANDS & RELATED EQUIPMENT
During the course of the litigation, the Hintons deposed Jeff
Cole, the president and chief executive officer of C&S.
Cole testified that C&S had stopped selling tree stands
and sought an insurance policy with a lower premium that did
not insure tree stands. According to Cole, C&S had been
insured with First Specialty Insurance, but C&S switched
to Pekin and stopped selling tree stands. Cole testified that
"when I had insurance with Pekin Insurance, it was not
to cover tree stands." He further testified that he
"understood" that tree stands were excluded from
coverage when C&S switched coverage from First Specialty
Insurance to Pekin.
The Hintons also deposed Jeffery Ott, an agent at
Comprehensive. Ott testified that when Cole first approached
him for an insurance policy for C&S in 2010, he had to
bring in another broker on a referral basis in order to
insure the tree stands as a specialty item with First
Specialty Insurance. According to Ott, C&S's high
premium payments to cover the tree stands was a problem
financially for C&S, and Cole approached Ott again to
seek a policy that did not cover tree stands. Ott contacted
Pekin and set up the policy for C&S. Also, Ott maintained
that Cole never asked him to remove the 481T from the Pekin
Renewal Insurance Policy
Pekin renewed the businessowners policy for C&S under
Policy No. 00BU51626-A for the policy period January 31,
2012, to January 31, 2013. The "BUSINESSOWNERS FORM
SCHEDULE" of the renewal policy listed "481T 107
Amendment of Policy" among thirty-three entries. Aside
from an updated policy number, the language of the 481T
exclusion, which is the second attached endorsement to the
renewal policy, is identical to the 481T exclusion in the
Amending Insurance Policy
Pekin issued an amending policy for the policy period of July
8, 2012, to January 1, 2013, under Policy No. 00BU51626-A.
The amending policy was eleven pages long and reflected an
additional premium of $28 on the common declarations page. On
the bottom of the same page, the amending policy read:
Changes Made to Your Policy:
"BUSINESSOWNERS FORM SCHEDULE" of the amending
policy listed "481T 1078 Amendment of Policy" among
thirty-four entries of forms and endorsements "Attached
To This Policy." Only two endorsements were actually
attached to the amending policy: a disclosure concerning
terrorism insurance and an amendment to the policy that named
an additional insured. The additional-insured amendment read,
endorsement modifies insurance provided under the following:
BUSINESSOWNERS LIABILITY COVERAGE FORM SCHEDULE
Name of person or Organization (Additional Insured) SCHEELS
ALL SPORTS INC SCHEELS CORPORATION OFFICE
Filing of the Wrongful-Death Suit
The Hintons filed the wrongful-death suit on behalf of their
son in late 2013. The suit was filed in Jones County Circuit
Several documents, emails and letters in the record pertain
to Pekin's review of the Hintons' claim against
C&S. They are summarized below:
Feb. 5, 2014 In a letter, TSG demanded indemnity and defense
from C&S and Hunter's View, Ltd., a related ...