author: SHEPHERD, Circuit Judge.

text:
    Kyle SOLTESZ, doing business as Top Dog Enterprises, Plaintiff-Appellee v. RUSHMORE PLAZA CIVIC CENTER, a political subdivision of the City of Rapid City; City of Rapid City, a political subdivision of the State of South Dakota, Defendants-Appellants.
    No. 15-3264
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 20, 2016
    Filed: February 7, 2017

      Counsel who presented argument on behalf of the appellant was Robert James Galbraith, of Rapid City, SD. The following attorney(s) appeared on the appellant brief; John K. Nooney, of Rapid City, SD.
    Counsel who presented argument on behalf of the appellee was Eric J. Pickar, of Rapid City, SD. The following attorney(s) appeared on the appellee brief; Sarah Baron Houy, of Rapid City, SD; Rod W. Schlauger of Rapid City, SD.
    Before MURPHY, GRUENDER, and SHEPHERD, Circuit Judges.
   SHEPHERD, Circuit Judge.

Kyle Soltesz ran a concession stand in the Rushmore Plaza Civic Center in Rapid City, South Dakota. He sued the Civic Center and the City after his lease was terminated — supposedly without due process — and his property seized. At trial, Soltesz alleged municipal liability premised on the decision of a final policymaker. See Pembaur v. City of Cincinnati, 475 U.S. 469, 482-83, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). The district court failed to identify the final policymaker as a matter of state law. Because the Supreme Court demands a district court make such an identification, we reverse and remand.

I. . Background

Kyle Soltesz operated as a food vendor in the Rushmore Plaza Civic Center under a five-year lease agreement. The Civic Center could terminate the agreement at any time with 45 days notice. Soltesz ran his concession stand — Top Dog Pizza — for two years until a video surveillance camera captured him assaulting one of his employees. The video was later viewed by the Civic Center’s General Manager, Brian Maliske.

Maliske then took a series of steps to end the business relationship between Sol-tesz and the Civic Center. Maliske first called Soltesz into a meeting and confronted him with the video. Maliske next issued Soltesz a “no trespass” warning and then had security escort him out of the building. Soltesz understood the warning to mean that he would be arrested if he returned to the Civic Center. Several days later, the Civic Center’s Board of Directors met. The record reveals no evidence whatsoever of what the Board did or did not discuss at its meeting. But shortly after the meeting ended, Soltesz’s attorney received a letter signed by Maliske terminating the lease agreement immediately.

Over the next few months, Soltesz unsuccessfully sought to retrieve his property from the Civic Center and transfer his lease to another food vendor. But the “no trespass” warning remained in effect — he could not return to his concession stand to retrieve any of his property. Eventually two employees were allowed into the Civic Center; by that time, much of the food had spoiled. Soltesz also arranged to sell his business to another pizza vendor, so long as the Civic Center would transfer the lease from Soltesz to the new vendor. The Board rejected this request and shortly thereafter leased out Soltesz’s old space.

Soltesz sued the Civic Center and the City of Rapid City — a municipality and a political subdivision of the State of South Dakota that owns and operates the Civic Center — under 42 U.S.C. § 1983. The suit alleged violations of federal and state law. Under federal law, Soltesz claimed a deprivation of his constitutional rights by the municipality. Specifically, he alleged that terminating the lease without the mandated 45 days notice violated the due process protections of the Fourteenth Amendment and that keeping his property locked in the concession stand was an unreasonable seizure under the Fourth Amendment. Under state law, Soltesz claimed breach of the lease, conversion, and tortious interference with business relationships. The Civic Center counter-claimed for breach of contract, failure to restore premises, fraud and deceit, and rescission.

Soltesz brought his federal claims under the Pembaur theory of municipal liability: a decision of an official responsible for establishing final policy attaches liability to the municipality. See Pembaur, 475 U.S. at 483, 106 S.Ct. 1292. The case was tried to a jury. After Soltesz presented his case, the Civic Center moved for judgment as a matter of law (“JMOL”), arguing that Sol-tesz had failed to establish the identity of the final policymaker for the municipality in regards to his lease. The district court denied the motion and allowed the case to proceed. At the close of the Civic Center’s case, the Civic Center again moved for JMOL, asserting that “the issue of who the final policy decision-maker is is a legal issue for the Court [to determine].” The district court again denied the motion, stating, “It’s a fact issue, not a legal one. And I am not going to instruct the jury on who the person acting under color of law is.” Indeed, the district court did not instruct the jury as to the identity of the official responsible for establishing final policy for the municipality. The jury ultimately found in favor of Soltesz on all of his claims.

The Civic Center raised the final-policymaker issue a third time in its renewed motion for JMOL following entry of judgment. The Center argued that state law designated the Board as the final policymaker and that Soltesz had failed to present evidence showing the Board had violated his constitutional rights. The district court once again denied the motion. In its order, the court ruled that sufficient evidence was presented at “trial from which the jury could conclude that Mr. Maliske was the final policymaker for the Rushmore Civic Center.” The court also suggested that the Civic Center’s Board of Directors both ratified Maliske’s decisions and delegated authority to him. In a footnote, the court alternatively held that, as a matter of law, “Maliske was the final decision-maker for the Rushmore Plaza Civic Center and the City of Rapid City with regard to their relationship with Mr. Sol-tesz.” In a separate order, the district court granted Soltesz’s motion for attorneys’ fees under 42 U.S.C. § 1988(b). The Civic Center appeals the district court’s denial of its renewed motion for JMOL and the award of attorneys’ fees.

II. Discussion

“We review the denial of a motion for a judgment as a matter of law de novo, and we view the evidence in the light most favorable to the jury’s verdict.” Bonenberger v. St. Louis Metro. Police Dep’t, 810 F.3d 1103, 1107 (8th Cir. 2016) (internal quotation marks omitted). JMOL “is appropriate when ‘a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient eviden-tiary basis to find for the party on that issue.’” Duban v. Waverly Sales Co., 760 F.3d 832, 835 (8th Cir. 2014) (quoting Fed. R. Civ. P. 50(a)(1)). “[I]n reviewing a jury verdict, we draw every reasonable inference in favor of the verdict and may not make credibility determinations or weigh the evidence.” Chen v. Mukasey, 510 F.3d 797, 801 (8th Cir. 2007).

“[Mjunicipal liability under § 1983 attaches where ... a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Pembaur, 475 U.S. at 483, 106 S.Ct. 1292. Thus a single decision by a municipal official can constitute official policy. Bolderson v. City of Wentzville, 840 F.3d 982, 985 (8th Cir. 2016). But “liability attaches only where the decision-maker possesses final authority to establish municipal policy with respect to the action ordered.” Pembaur, 475 U.S. at 481, 106 S.Ct. 1292.

“[T]he identification of those officials whose decisions represent the official policy of the local government unit is itself a legal question to be resolved by the trial judge before the case is submitted to the jury.” Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989). The need for the trial judge to identify a final policymaker — and not submit the issue to the jury — is beyond debate. See, e.g., Dean v. Cnty. of Gage, 807 F.3d 931, 940 (8th Cir. 2015) (citing Jett, 491 U.S. at 737, 109 S.Ct. 2702); Walden v. City of Providence, 596 F.3d 38, 55 (1st Cir. 2010) (“Whether an official is a final policymaker is ... a question of law for the trial judge to decide.”); Milligan-Hitt v. Bd. of Trs. of Sheridan Cnty. Sch. Dist., 523 F.3d 1219, 1224 (10th Cir. 2008) (“The judge, not the jury, should determine who exercises final policymaking authority in a municipality.”). “Only after the judge identifies an official as a final policymaker is it appropriate for the jury to determine whether [that official’s] decisions have caused the deprivation of rights at issue by policies which affirmatively command that it occur.” Atkinson v. City of Mountain View, 709 F.3d 1201, 1215 (8th Cir. 2013) (alteration in original) (internal quotation marks omitted).

District courts should consult two sources to identify the final policymaker: “(1) ‘state and local positive law and (2) state and local ‘custom or usage having the force of law.’ ” Id. (quoting Jett, 491 U.S. at 737, 109 S.Ct. 2702). State law, including valid local ordinances and regulations, will always direct the courts to some official or body of officials that has policymaking authority in a given area of the municipality’s business. City of St. Louis v. Praprotnik, 485 U.S. 112, 125, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). Federal courts are not justified “in assuming that municipal poli-cymaking authority lies somewhere other than where the applicable law purports to put it.” Id. at 126, 108 S.Ct. 915.

In addition to creating municipal liability for their own actions, final policymakers can also create this liability by either delegating policymaking authority to a subordinate or ratifying the actions of a subordinate. See id. at 124-27, 108 S.Ct. 915.

A subordinate official possesses delegated final policymaking authority when that official acts (1) free of review and (2) without any constraints imposed as a matter of policy by the original policymaker. Id. at 127, 108 S.Ct. 915. “If the board retains the authority to review, even though it may not exercise such review or investigate the basis of the decision, delegation of final authority does not occur.” Milligan-Hitt, 523 F.3d at 1229 (internal quotation marks omitted). “[W]e are interested only in delegations of legal power, not in whether the board’s actual exercise of its power of review was sufficiently aggressive.” Id. at 1227. “Simply going along with discretionary decisions made by one’s subordinates ... is not a delegation to them of the authority to make policy.” Praprotnik, 485 U.S. at 130, 108 S.Ct. 915. Even if an official has the final say on an issue, his decisions may not be final policy. “That a particular agent is the apex of a bureaucracy makes the decision final but does not forge a link between finality and policy.” Gelin v. Hous. Auth. of New Orleans, 456 F.3d 525, 530 (5th Cir. 2006) (quoting Auriemma v. Rice, 957 F.2d 397, 400 (7th Cir. 1992)) (internal quotation marks omitted).

A final policymaker ratifies the decision of a subordinate when he or she takes an affirmative act to approve both the decision and the basis for the decision. Praprotnik, 485 U.S. at 127, 108 S.Ct. 915. “Accordingly, ratification requires both knowledge of the alleged constitutional violation, and proof that the policymaker specifically approved of the subordinate’s act.” Lytle v. Carl, 382 F.3d 978, 988 n.2 (9th Cir. 2004). The issue of whether a final policymaker ratified a subordinate’s decision is a question of fact for the jury to decide. See Christie v. Iopa, 176 F.3d 1231, 1238-39 (9th Cir. 1999).

The Supreme Court has set a high bar for establishing municipal liability under § 1983, and demands careful analysis from district courts, to avoid any risk that liability could be imposed under a theory of respondeat superior. See Pembaur, 475 U.S. at 479, 106 S.Ct. 1292. A municipality bears responsibility for its own torts, not the torts of its employees. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). “[I]t is when execution of a government’s policy!,] ... by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id. at 694, 98 S.Ct. 2018.

Turning to the claims in this case, the Civic Center contends that no legally sufficient evidentiary basis exists to support the jury verdict. Whether an official possessed final policymaking authority, the Center continues, is a question of law. The district court thus erred in submitting the question to the jury. The Civic Center raised this very issue three times to the district court; the court denied the motion every time. The Civic Center, therefore, has preserved the issue for appellate review. See Walden, 596 F.3d at 55 (holding that a motion for JMOL preserved the issue of whether a municipal official is a final policymaker).

We agree with the Civic Center: no legally sufficient evidentiary basis exists to impose liability on a municipality for the decisions of a final policymaker when the district court fails to identify that policymaker. The district court must identify the final policymaker as a matter of law before the claims reach the jury. See, e.g., Atkinson, 709 F.3d at 1215. Even if the plaintiff proceeds on a theory of delegation or ratification, the court must identify the final policymaker. See Jett, 491 U.S. at 736-37, 109 S.Ct. 2702 (holding that jury instructions regarding delegated poli-cymaking are inappropriate because it is for the court to “identify those officials” whose wrongs can create municipal liability); Praprotnik, 485 U.S. at 127, 108 S.Ct. 915 (“If the authorized policymakers approve a subordinate’s decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final.”). Failing to do so raises the risk of respondeat superior liability — a risk we cannot tolerate. For § 1983 liability to attach, the jury must find the decision of a final policymaker caused the constitutional deprivation. See Jett, 491 U.S. at 737, 109 S.Ct. 2702. If the jury is not instructed as to who the final policymaker is, it cannot find that the decision of a final policymaker caused any constitutional deprivation. A verdict imposing municipal liability on the decision of a final policymaker, when the jury receives no instruction on the final policymaker’s identity, cannot be affirmed. See Speer v. City of Wynne, 276 F.3d 980, 987 (8th Cir. 2002) (remanding the case to the district court, in part, because municipal liability had been imposed without the district court identifying a final policymaker). We must therefore vacate the jury verdict.

Soltesz and the district court each attempt to explain that factual evidence presented at trial supports the jury’s verdict. Soltesz presents an argument that trial testimony showed Maliske had final policy-making authority in dealing with food vendors and their leases. In the alternative, Soltesz argues that the record implies the Board of Directors had delegated policy-making authority to Maliske because the Board did nothing after receiving notice of the lease termination. Again in the alternative, Soltesz argues that the record indicates the Board ratified Maliske’s decisions when it failed to protest or stop termination of the lease. The district court, in its post-trial order denying the Civic Center’s renewed motion for JMOL, held: “as a matter of law, ... by the greater convincing weight of the evidence presented at trial[,] Maliske was the final decision-maker for the Rushmore Plaza Civic Center and the City of Rapid City with regard to their relationship with Mr. Soltesz.”

The explanations offered by Soltesz miss the clear import of Supreme Court precedent: the identity of the final policymaker is a question of state law for the court, not the jury, to decide. Thus an argument about the sufficiency of evidence supporting the jury’s determination of the identity of the final policymaker “entirely misses the mark.” Atkinson, 709 F.3d at 1216. The district court’s post-trial order, fares no better. The court repeats Soltesz’s mistaken logic by basing its decision on evidence presented at trial suggesting Maliske was the de facto final policymaker. But there are no de facto final policymakers — only de jure. See Gelin, 456 F.3d at 530. Further, the district court’s post-trial identification of Maliske as the final policymaker cannot remedy the error already made. The jury can find liability on the part of the municipality only through the decisions of a final policymaker. Given no final policymaker whose decisions it could analyze, the jury rendered a verdict against the defendants that lacked a legally sufficient basis.

III. Conclusion

A final policymaker may have deprived Soltesz of his constitutional rights in this case. But if Soltesz wishes to bring his claims to a jury, the district court must identify the final policymaker in accordance with South Dakota state law and local Rapid City ordinances. We therefore reverse the district court’s ruling on the Civic Center’s renewed motion for JMOL, vacate the jury’s verdict, and remand for a new trial.


source: Caselaw Access Project

author: SMITH, Circuit Judge.

license: Public Domain

text:
    Jacobi P. MALONE, Plaintiff-Appellant, v. Robert HINMAN, Individually and in his official capacities; City of Little Rock, a municipal corporation and public body corporate and politic; Stuart Thomas, individually and in his official capacity as Chief of Police, Little Rock Department, Defendants-Appellees
    No. 15-3465
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 20, 2016
    Filed: February 7, 2017

      Counsel who presented argument on behalf of the appellant was Willard Proctor, Jr., of Little Rock, AR.
    Counsel who presented argument on behalf of the appellee was Amy Beckman Fields, of Little Rock, AR.
    Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
   SMITH, Circuit Judge.

Jacobi P. Malone appeals the district court’s grant of summary judgment to Little Rock Police Officer Robert Hinman, Little Rock Police Chief Stuart Thomas, and the City of Little Rock (collectively, “defendants”) on Malone’s various constitutional claims under 42 U.S.C. § 1983 for Officer Hinman’s alleged use of excessive force in shooting Malone. Viewing the facts in the light most favorable to Malone and evaluating the reasonableness of Officer Hinman’s actions “from the perspective of a reasonable officer on the scene,” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), we conclude that Officer Hinman is entitled to qualified immunity. Accordingly, we affirm the district court’s grant of summary judgment to Officer Hinman, Chief Thomas, and the City of Little Rock.

I. Background

We recite the facts in the light most favorable to Malone as the non-moving party. See id. at 388, 109 S.Ct. 1865.

At approximately 2:00 a.m. on the morning of July 16, 2011, Jacobi Malone, then 18 years old, was walking back to his car parked in the Rivermarket area of downtown Little Rock, Arkansas. Malone approached a crowd of 40 or 50 people near his parked car. In the crowd, Malone saw a former schoolmate in the midst of an escalating disturbance. Malone’s former schoolmate pulled out a pistol and pointed it at the crowd. Malone tried to “defuse the situation.” He approached the young man with the “intention” to “push the gun down towards the ground,” but, unfortunately, the gun discharged. When the gun discharged the first time, Malone’s hand was on the young man’s arm. The gun then discharged “one or two more times” before Malone “snatched” the gun from the young man. Hearing the gunshots, the crowd scattered. Malone started running, too, with the pistol now in his hand.

Meanwhile, Officer Hinman patrolled downtown Little Rock on his bicycle when he “heard what sounded like a disturbance and saw a large group of approximately forty to fifty people in the parking lot and on the sidewalk in front of the parking lot in the 200 block of East Markham.” As Officer Hinman approached the crowd on his bike, he “heard one gunshot fired.” Officer Hinman observed that once the first shot was fired, the crowd dispersed in all directions. He subsequently observed Malone fleeing on foot while holding the gun.

Officer Hinman says that he yelled “stop” to Malone but that Malone continued to run. Malone, however, did not hear anyone yell at him to “stop.” Malone was experiencing “an adrenaline rush,” and he did not “hear anything.” Officer Hinman “knew that [Malone] was running toward where Officer [Steve] Montgomery and several other individuals were located.” Officer Hinman drew his weapon and fired multiple rounds at Malone, striking Malone in the arm, back, leg, and neck. The bullet that hit Malone in the neck paralyzed him from the chest down. When Officer Hinman fired, his gun, Malone was two to three feet from Officer Montgomery.

Officer Montgomery and Officer Wade Neihouse, who were present at the time of the shooting, testified that three to five seconds elapsed between the first shot and shots fired by Officer Hinman at Malone. Officer Hinman estimated that “ten seconds elapsed from the time [he] heard the first shot until the time [he] fired [his] service weapon as Mr. Malone was fleeing.”

Malone filed suit against the defendants for violations of his federal and state constitutional rights. He sought relief pursuant to 42 U.S.C. § 1983 and the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution; the Arkansas Constitution; and the common-law tort of assault and battery. Specifically, he alleged excessive force in violation of the Fourth Amendment against Officer Hinman; maintenance of a widespread custom of permitting excessive force against Chief Thomas and the City of Little Rock; and assault and battery .against Officer Hinman. The defendants moved for summary judgment.

The district court granted the defendants’ motion. The district court found that Officer Hinman was entitled to qualified immunity on Malone’s constitutional claims because Officer Hinman’s actions were objectively reasonable under the circumstances. The court cited the short period of time that elapsed — less than ten seconds— between when Officer Hinman heard the gunfire and when he shot Malone. The court emphasized that while Malone was running away from Officer Hinman at the time that Officer Hinman shot him, Malone was running toward Officer Montgomery. The court also noted the crowd’s presence when the shots were fired and that Malone held a gun as he ran. Although the court found it “disconcerting” that Officer Hin-man had given inconsistent testimony about whether Malone turned to fire at him and found it “unclear” whether Officer Hinman saw Malone shoot into the crowd, it concluded that such details did not “change the constitutional analysis because no genuine issues of material fact exist.” The court also determined that Malone’s claims against Chief Thomas and the City of Little Rock failed for lack of evidence because Malone did not rebut Chief Thomas’s testimony that Officer Hinman was trained properly and that excessive-force incidents are properly investigated and handled. The court dismissed Malone’s state-law claim without prejudice and dismissed the federal claims with prejudice.

II. Discussion

On appeal, Malone argues that the district court erred in (1) granting summary judgment based on qualified immunity to Officer Hinman on Malone’s excessive-force claim, and (2) granting summary judgment to Chief Thomas and the City of Little Rock on Malone’s claim of a widespread custom of excessive force.

A. Excessive Force

Malone argues that the district court erred in granting Officer Hinman’s motion for summary judgment based on qualified immunity on Malone’s excessive-force claim.

We apply de novo review to the district court’s grant of summary judgment to the defendants, “viewing the evidence in the light most favorable to [Malone] and drawing all reasonable inferences in [his] favor.” Loch v. City of Litchfield, 689 F.3d 961, 965 (8th Cir. 2012). A district court appropriately grants summary judgment to the movant “if ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Id. (quoting Fed. R. Civ. P. 56(a)). “An official is entitled to qualified immunity unless (1) the evidence, viewed in the light most favorable to the plaintiff, establishes a violation of a constitutional or statutory right, and (2) the right was clearly established at the time of the violation.” Id.

“Since this case presents an issue of whether an officer used excessive force, the case must be analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard.” Craighead v. Lee, 399 F.3d 954, 961 (8th Cir. 2005) (quoting Graham, 490 U.S. at 388, 109 S.Ct. 1865). The standard that we apply in deadly force cases is well settled:

The reasonableness of a use of force turns on whether the officer’s actions were objectively reasonable in light of the facts and circumstances confronting him, without regard to his subjective intent or motivation. [Graham, 490 U.S. at] 397, 109 S.Ct. 1865. We must consider the totality of the circumstances, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether the suspect is actively fleeing or resisting arrest. Id. at 396, 109 S.Ct. 1865. The use of deadly force is reasonable where an officer has probable cause to believe that a suspect poses a threat of serious physical harm to the officer or others. See Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). We judge the reasonableness of [an officer’s] use of force “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865.

Loch, 689 F.3d at 965.

If a “suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.” Garner, 471 U.S. at 11, 105 S.Ct. 1694. But “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” Id. “Before employing deadly force, an officer should give ‘some warning’ when it is ‘feasible’ to do so.” Loch, 689 F.3d at 967 (quoting Garner, 471 U.S. at 11-12, 105 S.Ct. 1694).

“Once the predicate facts are established, the reasonableness of [an officer’s] conduct under the circumstances is a question of law.” Tlamka v. Serrell, 244 F.3d 628, 632 (8th Cir. 2001). But Malone contends that factual disputes exist about the predicate facts that prelude a grant of summary judgment on Malone’s excessive-force claim in Officer Hinman’s favor. Malone asserts that a factual dispute exists as to whether Officer Hinman knew that someone had been injured when Officer Hinman shot Malone. Therefore, Malone argues, the court could not consider Officer Hinman’s purported knowledge in determining whether Officer Hinman had probable cause to believe that Malone posed a threat to Officer Hinman or others. He also claims that factual disputes exist as to whether Officer Hinman observed Malone shooting when the shots were fired into the crowd and whether Malone ever turned toward Officer Hin-man. Malone asserts that these fact disputes preclude a reasonable conclusion that Malone threatened Officer Hinman or others.

Officer Hinman stated in his affidavit that after he initially heard shots fired, he observed “Malone, holding a weapon, ... fire approximately two more shots into the crowd.” Malone recalled and testified similarly that the gun discharged two to three times while he wrestled the gun from his friend. Malone also admitted that he took possession of the gun and had it in his hand as he fled. Officer Hinman testified that he observed Malone holding the gun when it fired. In contrast, Malone testified that he had not acquired possession when the gun fired because he was simply pushing the young man’s arm down to avoid injury to others. Like the district court, we conclude that these differing viewpoints do not change our constitutional analysis. The crucial common fact in both accounts is Malone’s eventual possession of the weapon at the time that Officer Hinman fired. The differences in the factual statements are thus not material. In his brief, Malone admits that “[a]s [he] was trying to get the gun, the gun discharged” and that when he was “able to get his hand on the gun ... it went off again once, maybe twice.” This is consistent with Officer Hinman’s testimony about hearing gun shots fired. Malone has pointed to no record evidence to refute Officer Hinman’s testimony that he heard shots fired or that he observed Malone fleeing with the gun after the shots were fired. In fact, Malone testified that when people scattered following the gunshots, he had “possession of the gun” and his “intentions were to run and ... get rid of the weapon, so [he] ran back west, up the sidewalk” with the gun. As the district court summarized, the material, “undisputed facts according to Malone are these: around 2:00 a.m. he had a pistol in his hand after shots had been fired in a crowd at the Rivermarket; and he was fleeing the scene toward other people nearby.”

Based on these undisputed facts, the relevant question is whether Officer Hin-man’s use of deadly force against Malone was objectively reasonable under the circumstances. See Loch, 689 F.3d at 965. More specifically, the question is whether Officer Hinman had “probable cause to believe that [Malone] pose[d] a threat of serious physical harm to the officer or others.” See id. (emphasis added). Viewing the facts in the light most favorable to Malone, he did not pose a threat of serious physical harm to Officer Hinman because he was running away from Officer Hin-man. But we conclude that, looking at the circumstances from the perspective of a reasonable officer and taking the disputed facts in Malone’s favor, Malone posed a threat of serious physical harm to others. Officer Hinman knew that approximately three gunshots had just been fired in a crowd of 40 to 50 people. He then saw Malone running away with a gun toward Officer Montgomery and others as the crowd dispersed. Officer Hinman instructed Malone to stop, but Malone did not stop because he did not hear Officer Hinman. Malone continued to run toward Officer Montgomery. The record shows that Malone was two to three feet from Officer Montgomery at the time that Officer Hin-man fired his gun. The entire event occurred within three to ten seconds.

Like the district court, we recognize the tragic nature of these events: “Taking Malone’s version as the truth, his good deed in defusing a dangerous argument, coupled with two split-second decisions, resulted in a promising young man’s paralysis.” Nonetheless, applying the required review standard, we hold that Officer Hinman’s use of deadly force was objectively reasonable. Therefore, the district court did not err in granting Officer Hinman’s motion for summary judgment based on qualified immunity on Malone’s excessive-force claim.

B. Widespread Custom of Excessive Force

Malone argues that the district court erred in granting summary judgment to Chief Thomas and the City of Little Rock on his claim of a widespread custom of excessive force. According to Malone, “[i]gnoring or concealing police misconduct, and the inadequate investigation of excessive force, as well as failures to discipline, supervise or monitor police officers for misconduct, are all actionable theories of Monell liability.” (Italics omitted.) Malone contends that Chief Thomas knew that the Little Rock Police Department altered evidence to fit Officer Hinman’s story. He also contends that he offered evidence to contradict Chief Thomas’s statement. He asserts that' the district court excluded such evidence because Malone failed to provide it prior to the discovery cut-off deadlines. Malone asserts that the district court’s exclusion of this evidence was erroneous because it impeached Chief Thomas’s testimony.

Section 1983 liability for a constitutional violation may attach to a municipality if the violation resulted from (1) an “official municipal policy,” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), (2) an unofficial “custom,” id.; or (3) a deliberately indifferent failure to train or supervise, see City of Canton, Ohio v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Policy and custom are not the same thing. “[A] ‘policy* is an official policy, a deliberate choice of a guiding principle or procedure made by the municipal official who has final authority regarding such matters.” Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999). Alternatively, a plaintiff may establish municipal liability through an unofficial custom of the municipality by demonstrating “(1) the existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity’s employees; (2) deliberate indifference to or tacit authorization of such conduct by the' governmental entity’s policymaking officials after notice to the officials of that misconduct; and (3) that plaintiff was injured by acts pursuant to the governmental entity’s custom, i.e., that the custom was a moving force behind the constitutional violation.” Snider v. City of Cape Girardeau, 752 F.3d 1149, 1160 (8th Cir. 2014).

Corwin v. City of Indep., Mo., 829 F.3d 695, 699-700 (8th Cir. 2016) (alteration in original) (footnote omitted).

Because we conclude that Officer Hin-man did not violate Malone’s constitutional rights, there can be no § 1983 or Monell liability on the part of Chief Thomas and the City. See, e.g., Monell, 436 U.S. at 691, 98 S.Ct. 2018 (“Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort.”); Sitzes v. City of W. Memphis Ark., 606 F.3d 461, 470 (8th Cir. 2010) (agreeing with district court that plaintiffs’ failure to train and failure to supervise claims “could not be sustained absent an underlying constitutional violation by the officer”); Sanders v. City of Minneapolis, Minn., 474 F.3d 523, 527 (8th Cir. 2007) (“Without a constitutional violation by the individual officers, there can be no § 1983 or Monell ... municipal liability.”).

III. Conclusion

Accordingly, we affirm the judgment of the district court.

      . The Honorable D.P. Marshall Jr., United States District Judge for the Eastern District of Arkansas.

      . To support his argument that the district court erred in finding that Officer Hinman's actions did not constitute excessive force, Malone also points to the report of Sergeant Calvin K. Grogan. Sergeant Grogan arrived at the scene shortly after the incident occurred. Sergeant Grogan wrote, "Officer Hinman said he confronted the man and that the man in quotations ‘tried to get his gun out,’ end quotations.” Malone argues that the district court erred in finding Officer Hinman’s actions objectively reasonable because Officer Hinman’s statement to Sergeant Grogan that Malone "tried to get his gun out” was a lie. But the. dispute over whether Officer Hinman told Sergeant Grogan that Malone tried to get his gun out is not material to Officer Hin-man’s entitlement to qualified immunity. As explained supra, we have construed the facts in the light most favorable to Malone and accepted his version of events. We evaluate Officer Hinman’s actions in reacting to these circumstances "from the perspective of a reasonable officer on the scene.” Graham, 490 U.S. at 396, 109 S.Ct. 1865.

      . No genuine issue of material fact exists as to whether Officer Hinman provided Malone with a warning prior to using deadly force. Officer Hinman testified that he yelled "stop” to Malone but that Malone continued to run. Malone testified that he did not hear anyone yell "stop” to him. Malone was experiencing "an adrenaline rush,” and he did not "hear anything.” Malone "did not testify that warnings were not given but only that he did not hear any warnings”; as a result, his testimony "fails to contradict the officer's positive testimony that he warned [Malone] ... before firing a shot. Consequently, [Malone’s] testimony that he did not hear any warnings fails to present a question of material fact as to whether the giving of the warnings was feasible and if in fact they were given.” Ford v. Childers, 855 F.2d 1271, 1276 (7th Cir. 1988). Nor does Malone’s reliance on the testimony of Tunisha Johnson generate a disputed issue of fact. She testified only to what she saw, not to what she heard. She testified, "I seen, I guess it was the officer running and the police officer just shot him.” She never discussed whether warnings were given prior to Officer Hinman shooting Malone.

      . Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

      . Malone also argues that the district court erred in granting the defendants’ motion to strike certain exhibits attached to Malone’s response to the defendants’ motion for summary judgment because they were offered after the discovery deadline expired. The district court’s exclusion of this evidence relates to Malone’s Monell claim against Chief Thomas and the City. We need not reach this issue because Malone failed to establish an underlying constitutional violation to support his Mo-nell claim.


author: STRAND, District Judge.

text:
    AMERICAN FIRE AND CASUALTY COMPANY, Plaintiff-Appellant v. Mary HEGEL, Individually and as Personal Representative for the Estate of Adam Fetzer, Defendant-Appellee
    No. 15-3975
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 15, 2016
    Filed: February 7, 2017

      Counsel who presented argument on behalf of the appellant was Christian Andrew Preus, of Minneapolis, MN. The following attorney(s) appeared on the appellant brief; Christian Andrew Preus, of Minneapolis, MN., Elizabeth Ann Jenson-Prouty, of Minneapolis, MN.
    Counsel who presented argument on behalf of the appellee was Scott A. Hager, of Bismarck, ND. The following attorney(s) appeared on the appellee brief; Scott A. Hager, of Bismarck, ND.
    Before BENTON and SHEPHERD, Circuit Judges, and STRAND, District Judge.

      . The Honorable Leonard T. Strand, United States District Judge for the Northern District of Iowa, sitting by designation.

   STRAND, District Judge.

This ease arises out of the untimely death of Adam Fetzer, a delivery driver for the Papa John’s restaurant chain who was killed in a car accident on April 28, 2012. Fetzer was driving during the course of his employment in Bismarck, North Dakota, when another driver ran a red light and struck his vehicle.

Defendant Mary Hegel, the personal representative of Fetzer’s estate, demanded underinsured motorist (UIM) coverage under a business auto insurance policy (Policy) issued by plaintiff American Fire and Casualty Company (American Fire) to P J Operations, LLC d/b/a Papa John’s Pizza (Papa John’s). American Fire denied the claim and brought suit for declaratory judgment. On cross motions for summary judgment, the parties disputed whether North Dakota law applies to the Policy and, if so, whether American Fire is obligated to provide UIM benefits in some amount. The district court granted summary judgment against American Fire, holding: (1) North Dakota law applies; (2) American Fire is obligated to provide UIM coverage; and (3) Fetzer’s estate is entitled to an award of $100,000 in UIM benefits. American Fire appealed. Having jurisdiction under 28 U.S.C. § 1291, we reverse.

I. BACKGROUND

The relevant facts are not in dispute. Fetzer was not at fault. At the time of the accident he was driving his own vehicle, which was covered by both a personal auto insurance policy and the American Fire Policy. The other driver, Robert Harrington, was also covered by a personal auto insurance policy, which provided $25,000 in liability coverage. Following the accident, Hegel, on behalf of Fetzer’s estate, was paid the full liability amount, $25,000, from Harrington’s insurance policy. Hegel then sought UIM benefits from American Fire.

American Fire is an insurance company incorporated under Ohio law with its principal place of business in Massachusetts. Papa John’s is a Kentucky company headquartered in Kentucky. A Kentucky insurance agent sold the Policy to Papa John’s in Kentucky. The Policy provided liability coverage and physical damage coverage with a liability limit of $1,000,000. The Policy covered vehicles owned and used by Papa John’s employees all over the country. The Policy contained numerous endorsements addressing specific state laws, including some that related to North Dakota law. Papa John’s premium payment for the Policy was sent to the insurance agency’s office in Middletown, Ohio. Fet-zer’s vehicle was licensed and garaged in North Dakota.

II. DISCUSSION

American Fire argues that Kentucky law controls and that the district court erred in applying North Dakota law to the Policy. American Fire notes that under Kentucky law it was not required to provide UIM coverage. American Fire also argues that even if North Dakota law applies, thus imposing a requirement to provide UIM coverage in some amount, no recovery would be appropriate in this case because Harrington was not underinsured.

A. Standard of Review

“We review de novo a district court’s grant of summary judgment, viewing the evidence ‘in the light most favorable to the nonmoving party.’ ” Barkley, Inc. v. Gabriel Brothers, Inc., 829 F.3d 1030, 1038 (8th Cir. 2016) (quoting Beverly Hills Foodland, Inc. v. United Food & Commercial Workers Union, Local 655, 39 F.3d 191, 194 (8th Cir. 1994)). “If there is ‘no dispute of material fact and reasonable fact finders could not find in favor of the nonmoving party, summary judgment is appropriate.’ ” Shrable v. Eaton Corp., 695 F.3d 768, 770-71 (8th Cir. 2012) (quoting Fercello v. Cnty. of Ramsey, 612 F.3d 1069, 1077 (8th Cir. 2010)). We may affirm a grant of summary judgment on any basis supported by the record. Noreen v. PharMerica Corp., 833 F.3d 988, 992 (8th Cir. 2016) (citing Johnson v. Securitas Sec. Servs. USA, Inc., 769 F.3d 605, 611 (8th Cir. 2014) (en banc)).

B. The Choice of Law Analysis

The parties agree that declaratory judgment is an appropriate means to resolve their dispute and that if Kentucky law applies to the Policy, then American Fire was not obligated to provide UIM coverage. In determining which state’s law applies, we look to the choice of law principles of the forum state—North Dakota. Whirlpool Corp. v. Ritter, 929 F.2d 1318, 1320 (8th Cir. 1991) (when jurisdiction is based on diversity, the forum state’s choice of law analysis applies).

North Dakota employs a two-prong test in its choice of law analysis. “With the adoption of the Leflar choice-influencing factors our significant contacts test became something of a hybrid, and effectively became a two-pronged analysis.” Daley v. Am. States Preferred Ins. Co., 587 N.W.2d 159, 162 (N.D. 1998). First, the court must “determine all of the relevant contacts which might logically influence the decision of which law to apply.” Id. “Secondly, we apply Leflar’s choice-influencing considerations ‘to determine which jurisdiction has the more significant interest with the issues in the case.’ ” Nodak Mut. Ins. Co. v. Wamsley, 687 N.W.2d 226, 231 (N.D. 2004). The five factors to be considered under the second prong are predictability of results, maintenance of interstate and international order, simplification of the judicial task, advancement of the forum’s governmental interests, and application of the better rule of law. Apollo Sprinkler Co. v. Fire Sprinkler Suppliers & Design, Inc., 382 N.W.2d 386, 389 (N.D. 1986) (internal citations omitted).

The first prong, relevant contacts, is straight-forward. Papa John’s is headquartered in Kentucky and bought the Policy from a Kentucky insurance agent. Papa John’s negotiated the terms of the Policy in Kentucky and the Policy was delivered to Papa John’s in Kentucky. American Fire is incorporated in Ohio, which is also where Papa John’s sent payment for the Policy. American Fire does business nationally and, as is clear from the various endorsements included in the Policy, the Policy was intended to cover Papa John’s employees across the country. Meanwhile, all contacts relating to the accident occurred in North Dakota. Fetzer worked for a North Dakota Papa John’s, all parties to the accident lived in North Dakota and the accident occurred in North Dakota.

The North Dakota Supreme Court addressed a similar factual situation in Plante v. Columbia Paints, 494 N.W.2d 140 (N.D. 1992). Using a Washington insurance agent, a Connecticut insurer issued a policy to an Idaho corporation to cover activities in numerous states, including North Dakota. Id. at 142. The policy was issued and accepted outside of North Dakota. Id. Two North Dakota residents were injured in an explosion in North Dakota while using the insured’s products and filed a declaratory action concerning the extent of the insurance coverage. Id. at 141-42. The parties disputed the applicability of certain coverage provisions. Id. at 141.

On appeal from the trial court’s determination that North Dakota law applied to the policy, the North Dakota Supreme Court first identified the relevant contacts as follows:

There are a number of multistate contacts to be considered. Parnell Plante and Mark Sandness are North Dakota residents who were injured in an explosion in North Dakota while using a Columbia paint that had been sold to their employer, a North Dakota painting company, by a Columbia corporate store located in North Dakota. Plante and Sandness filed personal injury actions in North Dakota. Columbia’s insurance policy from Hartford was intended to provide coverage for Columbia’s retail functions in North Dakota, as well as in other states. Columbia obtained the Hartford insurance policy through Jones & Mitchell (Jones), a Washington insurance broker and agent. Jones delivered the policy to Columbia in Washington. Columbia paid the insurance premiums to Jones in Washington and the policy was intended to cover Columbia’s retail and manufacturing functions in Washington, as well as in North Dakota and other states. Columbia maintained corporate headquarters in Washington, as well as in Montana. Columbia is an Idaho corporation. Hartford is a Connecticut corporation. The insurance policy was intended to cover Columbia’s retail and manufacturing functions in Idaho, Montana, and South Dakota, as well as in Washington and North Dakota. The paint involved in this case was produced in Columbia’s plant in Helena, Montana, and shipped from there to North Dakota.

Plante, 494 N.W.2d at 142. The Court then applied the five factor test. Regarding predictability of results, the Court found:

The rights created by a casualty insurance contract are ordinarily determined “by the local law of the state which the parties understood was to be the principal location of the insured risk.” Restatement [ (Second) of Conflict of Laws], supra, § 193. However, the location of an insured risk has less significance when “the policy covers a group of risks that are scattered throughout two or more states.” Restatement, supra, § 193, comment b. We conclude Hartford and Columbia are more likely to have thought that the coverage provided would be determined in accordance with the law of Washington, where the contract was negotiated, the policy was delivered, and the premiums were paid, than in accordance with the law of any other state.

Id. at 143. The Court did not make an express finding regarding the maintenance of interstate order but implied that interstate order was aided by applying the law of the state with the most significant contacts. Id. The Court also found that simplification of the judicial task favored the application of Washington law because the specific coverage issue in dispute was a matter of first impression in North Dakota. Id.

Regarding the forum’s interest, the Court stated that while North Dakota clearly had some interest in applying its own law, because the victims resided in North Dakota, applying North Dakota law would be “the kind of ‘chauvinistic parochialism’- [ ] sought to be avoided by modern choice-of-law analysis.” Id. (internal citations omitted). Finally, as for the better rule of law:

The insurance coverage question presented in this case is one of first impression in this state. Our rule of law has not yet been formulated. If we were to formulate a North Dakota rule of law to apply in construing the policy language different than the applicable Washington rule of law, our belief in our own rule would be “insufficient under the circumstances presented in this case to override other relevant ■ considerations militating in favor of the application of [Washington] law in the construction of the insurance policy at issue.” Apollo, supra, at 391. We conclude that Washington is the state -with the most significant contacts with the insurance policy and that the trial court erred in ruling that North Dakota law was applicable.

Id. at 144.

While Plante is similar to the present case, there are some distinctions. First, North Dakota has a statute requiring UIM coverage. This means that in contrast to the situation in Plante, this court would not be required to formulate the appropriate legal standard if North Dakota law is applied. Second, the difficulty of applying the law is a moot issue for us, as federal courts routinely apply the laws of various states. See Hughes v. Wal-Mart, Stores, Inc., 250 F.3d 618, 620 (8th Cir. 2001). Third, the Plante Court did not make a definitive finding regarding interstate order. Here, the district court found that when an insurance policy is sold interstate, with knowledge that it will be applicable in numerous states, interstate order is best served by applying the law of the state in which a loss occurs rather than by importing foreign law into each such state.

Even with these distinctions, however, the primary thrust of Plante is that when insurance coverage is at issue, the location of the accident has “less significance” when the policy covers risks that are scattered throughout two or more states. Plante, 494 N.W.2d at 143 (citation omitted); see also Schleuter v. N. Plains Ins. Co., 772 N.W.2d 879, 885 (N.D. 2009) (applying South Dakota contract law when the contact with North Dakota was the location of the accident giving rise to the insurance claim). The District of North Dakota recognized this in R.D. Offutt Co. v. Lexington Ins. Co., 342 F.Supp.2d 838 (D.N.D. 2004). That case presented the same situation as this case, but in reverse.

In Offutt, a Delaware insurance company sold a policy in North Dakota to a corporation that had its principal place of business in North Dakota. Id. at 840. The policy covered business activity in several states. Id. After an accident in Oregon, the insurer denied coverage under the policy and the insured filed a declaratory judgment action in North Dakota. Id. at 841. The insurer then moved to transfer venue to Oregon. Id. at 841. In denying the motion, the court found that under North Dakota’s two-pronged choice of laws analysis, North Dakota law applied to the coverage dispute, noting that “all contacts other than the location of the loss are with North Dakota.” Id. at 843-45. It is clear, then, that in considering the relevant contacts at the first prong of North Dakota’s choice of law analysis, the location of the accident is of less significance to an insurance coverage dispute.

The second prong requires application of the five factors outlined above. American Fire argues that the first four factors weigh in favor of Kentucky law, while the fifth factor is not relevant because, it asserts, the outcome is the same regardless of which state’s law applies. Hegel argues in favor of the district court’s analysis.

The first factor, predictability and uniformity of result, is of particular importance in those areas in which the parties are likely to give advance thought to the legal consequences of their transactions. Apollo Sprinkler Co., 382 N.W.2d at 390 (citing Restatement (Second) of Conflict of Laws § 6, comment I (1971)). This court has observed that “[predictability of results plays an important role when parties enter into contracts, but accidents are not planned.” Kenna v. So-Fro Fabrics, Inc., 18 F.3d 623, 626 (8th Cir. 1994). That is because “[p]arties do not commit torts in one state rather than another because of that state’s tort laws.” Id. The planned event in this case, the creation of an insurance contract, occurred in Kentucky. It was sold by a Kentucky insurance agent to a Kentucky business, to cover business activities in both Kentucky and the rest of the United States. As the Offutt court aptly explained:

Given the fact that the broad form policy issued by Lexington covers property located in numerous states, including North Dakota, Minnesota, Wisconsin, Oregon, Washington, Texas, Idaho, and Nevada, the possibility exists that the construction of the insurance contract could be susceptible to several differing interpretations depending upon the state in which the underlying loss occurs. Therefore, the desire for predictability of results weighs in favor of application of North Dakota law.

R.D. Offutt Co., 342 F.Supp.2d at 844. Here, applying Kentucky law to the Policy creates the most predictable result.

The next two factors do not weigh heavily on this court’s decision. Quite simply, interstate harmony is not implicated. The standard in North Dakota is whether the application of one state’s law would show manifest disrespect for another state. Daley, 587 N.W.2d at 164-65. Applying Kentucky law to an insurance contract formed in Kentucky would not show disrespect to North Dakota. Nor would applying North Dakota law show disrespect to Kentucky if North Dakota had more significant contacts to the dispute. Similarly, simplification of the judicial task is a non-issue because a federal court is well-suited to apply the law of any state.

Under North Dakota precedent, advancement of the forum’s interests also weighs in favor of applying Kentucky law:

A state’s governmental interest in a choice-of-law case is discoverable by (a) identifying the factual contacts which the litigated transaction had with that state, then (b) determining whether those contacts give rise to real reasons (socioeconomic or political justifications) for applying the state’s law to litigated issues in the case. Daley, 1998 ND 225, 31, 587 N.W.2d 159 (quoting Robert A. Leflar, et al., American Conflicts Law § 106, at 295 (4th ed. 1986)). We have said that North Dakota can have no substantial governmental interest in regulating the relationship between out-of-state insurance companies and their out-of-state insureds. See Plante, 494 N.W.2d at 143; Apollo Sprinkler Co., 382 N.W.2d at 391.

Nodak, 687 N.W.2d at 234. However, instead of focusing on the relationship between the insurance company and the insured, the district court focused on the fact that the insurance covered an accident in North Dakota and the victim was a North Dakotan. After focusing on those contacts, the district court concluded that the forum’s governmental interest weighed in favor of applying North Dakota law. However, the entire history of the insurance contract at issue occurred in Kentucky. Papa John’s is a Kentucky business that purchased the Policy from a Kentucky insurance agent. Accordingly, because this case involves an out-of-state insurance company and an out-of-state insured, North Dakota has no substantial governmental interest.

The final factor, the better rule of law, favors neither party. This factor asks whether North Dakota has an objectively better rule of law. Daley, 587 N.W.2d at 165. The North Dakota Supreme Court has recognized that “[sjometimes different laws are neither better nor worse in an objective way, just different.” Nodak, 687 N.W.2d at 234 (quoting Jepson v. General Cas. Co., 513 N.W.2d 467, 473 (Minn. 1994)). North Dakota requires UIM coverage while Kentucky does not. Neither side makes a compelling argument that either law is objectively “better.” The laws are simply different. Thus, this factor does not favor the application of either state’s law. Additionally, as discussed in note 2, infra, there is no practical difference between the application of Kentucky law and North Dakota law in this case, as Hegel would not be entitled to a recovery under North Dakota law.

Accordingly, two factors favor the application of Kentucky law and no factor favors application of North Dakota law. We conclude that the district court erred in applying North Dakota law and, as a result, in finding that American Fire was required to provide UIM coverage to Papa John’s. Instead, the Policy is subject to Kentucky law, which does not require such coverage. American Fire is entitled to judgment in its favor as a matter of law.

III. CONCLUSION

The judgment of the district court is reversed and this case is remanded with instructions to enter judgment in favor of American Fire.

      . We note that under the facts present here, Hegel would not be entitled to UIM benefits under the Policy even if North Dakota law applies. N.D. Cent. Code § 26.1-40-15.3(1) requires an insurer to "provide [UIM] coverage at limits equal to the limits of uninsured motorist coverage.” N.D. Cent. Code § 26.1-40-15.2 mandates uninsured motorist coverage in the amount set forth in N.D. Cent. Code § 39-16.1-11 which, in turn, requires at least $25,000 in coverage due to the bodily injury to or death of one person in any one accident. While North Dakota law is silent as to what the coverage limit should be when a policy fails to include mandatory coverage, other courts have consistently imposed the minimum coverage required by law. See, e.g., Gailor v. Alsabi, 990 S.W.2d 597, 606 (Ky. 1999); Clark v. State Farm Mut. Auto. Ins. Co., 433 F.3d 703, 710 (10th Cir. 2005). Here, the district court cited no law supporting its determination that American Fire was required to provide $100,000 in UIM benefits. We conclude that if North Dakota law applies, American Fire would be required to provide no more than the statutory minimum in UIM benefits. Moreover, because Harrington’s policy provided $25,000 in liability coverage, the at-fault vehicle does not meet the definition of an underinsured motor vehicle under North Dakota law. See N.D. Cent. Code Ann. § 26.1-40-15.1(2) (“Underinsured motor vehicle” means a motor vehicle "for which there is a bodily injury liability insurance policy” but the applicable limit either (a) "[i]s less than the applicable limit for [UIM] coverage under the insured's policy” or (b) "[h]as been reduced by payments to other persons injured in the accident to an amount less than the limit for [UIM] coverage under the insured’s policy”). Thus, under North Dakota law, Hegel is not entitled to UIM benefits.


author: MURPHY, Circuit Judge.

text:
    ACCIONA WINDPOWER NORTH AMERICA, LLC, Plaintiff-Appellee v. CITY OF WEST BRANCH, IOWA, Defendant-Appellant
    No. 16-1735
    United States Court of Appeals, Eighth Circuit.
    Submitted: December 15, 2016
    Filed: February 7, 2017

      Counsel who presented argument on behalf of the appellant was William John Miller, of Des Moines, IA. The following attorney(s) appeared on the appellant brief; Brian A. Melhus, of Des Moines, IA.
    Counsel who presented argument on behalf of the appellee was Dana L Oxley, of Cedar Rapids, IA. The following attorney(s) appeared on the appellee brief; Theresa C. Davis, of Cedar Rapids, IA.
    Before KELLY and MURPHY, Circuit Judges, and MONTGOMERY, District Judge.

      . The Honorable Ann D. Montgomery, United States District Judge for the District of Minnesota, sitting by designation.

   MURPHY, Circuit Judge.

In 2008 the city of West Branch, Iowa (West Branch or the city) entered into an agreement with Acciona Windpower North America, LLC (Acciona), a company that manufactures and installs wind generation systems. Under the agreement, Acciona would expand its business in West Branch if the city would consider rebating a portion of Acciona’s taxes each year for eight years. West Branch paid rebates for three years, but then refused to pay subsequent rebates and ultimately cancelled the agreement. The district court concluded that West Branch’s actions breached the contract and, after a bench trial, awarded Acciona $494,924.28 in damages. West Branch appeals, and we affirm.

I.

Acciona and West Branch entered into a tax increment financing (TIF) development agreement in 2008. TIF agreements are authorized by Iowa law, see Iowa Code § 403.6, to encourage economic development in specified areas, see Fults v. City of Coralville, 666 N.W.2d 548, 551 n.1 (Iowa 2003). The agreement between West Branch and Acciona obligated the city to consider providing certain benefits to Acci-ona if it expanded its business in West Branch. Most crucially, the agreement obligated West Branch to consider “rebating to ACCIONA, for a period [of] eight years, incremental property taxes actually paid with respect to” improvements made by Acciona in West Branch. The agreement made clear that all rebate payments were “subject to annual appropriation of the City Council.” In the event that the city failed to appropriate a rebate to Acciona in a given year, the agreement specified that “the remaining rebate schedule shall be extended by one year so as to allow eight full years of rebates under this Agreement.”

West Branch paid rebates to Acciona pursuant to the agreement in fiscal years 2010, 2011, and 2012. In those years the procedure for determining whether a rebate would be paid was the same. We therefore take fiscal year 2010 as an example. In November 2008 the West Branch city council approved a resolution rebating a portion of Acciona’s taxes for fiscal year 2010 to the company. The rebate was included in the city’s budget which was adopted in March 2009. After Acciona timely paid its fiscal year 2010 taxes, the city formally approved and paid the rebate. Approximately the same process was followed in fiscal years 2011 and 2012.

In November 2011 West Branch’s city council approved a resolution obligating for appropriation a tax rebate to Acciona for fiscal year 2013. The authorized rebate was subsequently included in the city’s budget which was adopted in March 2012. After Acciona paid its taxes for fiscal year 2013, the city budget was amended and the rebate to Acciona was removed. The city failed to pay a rebate to Acciona for fiscal year 2014 under similar circumstances. Although the 2014 rebate was initially approved in November 2012, and included in the city’s budget in March 2013, the city eliminated the rebate in amending its budget in May 2014.

In addition to failing to pay Acciona rebates for fiscal years 2013 and 2014, West Branch cancelled the agreement in May 2013 on the ground that Acciona was failing to meet its contractual obligations. Acciona responded by filing this breach of contract action in March 2014, and the parties proceeded to file cross motions for summary judgment. The district court ruled that West Branch had breached its agreement by cancelling without cause. The court also decided that Acciona was not entitled to damages for rebates that could be due in future fiscal years, however, because the agreement only obligated the city to consider the appropriation of rebates. The court therefore granted Acci-ona’s request for specific performance for the future fiscal years. Finally, the court concluded that genuine issues for trial remained on the question of whether Acciona was entitled to damages for prior fiscal years in which the city had obligated rebates for appropriation but subsequently failed to pay them.

After a bench trial, the district court ruled that Acciona was entitled to recover compensatory damages for the tax rebates obligated for appropriation but not paid in fiscal years 2013 and 2014. West Branch filed a motion to amend or correct the judgment which was denied. West Branch appeals, arguing that the district court erred in finding that Acciona is entitled to damages for rebates not paid in fiscal years 2013 and 2014.

II.

As this appeal follows a bench trial, we review the district court’s “legal conclusions de novo and factual findings for clear error.” Urban Hotel Dev. Co. v. President Dev. Group, L.C., 535 F.3d 874, 879 (8th Cir. 2008). It is uncontested that Iowa law applies in this diversity case. See id. at 877. Iowa courts “generally review the construction and interpretation of a contract as a matter of law.” Hartig Drug Co. v. Hartig, 602 N.W.2d 794, 797 (Iowa 1999). An exception to this rule occurs when a lower court’s contract “interpretation was predicated upon extrinsic evidence,” as those findings “are binding on appeal if supported by substantial evidence.” Id.

A.

West Branch first argues that the district court erred in its interpretation of the parties’ agreement. Specifically, West Branch contends that the district court erred in concluding that the city breached the agreement when it failed to pay rebates in fiscal years 2013 and 2014 that had been obligated for appropriation. West Branch notes that all rebate payments under the agreement are “subject to annual appropriation of the City Council” and suggests that a rebate is not appropriated until the moment at which it is paid. In other words, West Branch argues that under the agreement it had the power to decide not to pay the rebates obligated for appropriation up until the moment the rebate checks were sent. In support of its argument West Branch points to the meaning of “appropriate,” witness testimony at trial, and an admission by Acciona at the summary judgment stage. None of these pieces of evidence singly or in combination are sufficient to persuade us that West Branch’s interpretation of the parties’ agreement is correct.

Under Iowa law, a key rule of contract interpretation is that courts “give effect to the language of the entire contract according to its commonly accepted and ordinary meaning.” Hartig Drug Co., 602 N.W.2d at 797. A corollary of this rule is that it is “well-established ... that an ‘interpretation which gives a reasonable, lawful, and effective meaning to all terms is preferred to an interpretation which leaves a part unreasonable, unlawful, or of no effect.’” DeJong v. Sioux Ctr., Iowa, 168 F.3d 1115, 1120 (8th Cir. 1999) (quoting Fashion Fabrics of Iowa, Inc. v. Retail Inv’rs Corp., 266 N.W.2d 22, 26 (Iowa 1978)). As the district court noted in its thorough and well reasoned opinion, the parties’ agreement specifies that West Branch must annually certify “no later than December 1 ... the amount obligated for appropriation for rebate to Acciona.” The agreement further states that, in the event the city decides to obligate a rebate for appropriation, “[t]he rebate shall be paid to ACCIONA within thirty days of receipt by the City of the incremental taxes paid.” If we were to accept West Branch’s interpretation of the parties’ agreement and conclude that the city could permissibly decline at any time to issue a rebate payment it had obligated for appropriation, this contractual provision would be “of no effect.” See DeJong, 168 F.3d at 1120 (quoting Fashion Fabrics of Iowa, 266 N.W.2d at 26). This interpretation of the parties’ agreement is disfavored under Iowa law.

The better interpretation of the parties’ agreement — one that gives full effect to all of the agreement’s provisions — is the interpretation adopted by the district court and advanced by Acciona on appeal. Under this view, if the city council elects to obligate a rebate for appropriation, nothing in the agreement prevents the city council from changing its mind and “unappropriat-ing” the rebate up until the moment Accio-na pays its taxes for a given fiscal year. Once Acciona pays its taxes, however, the contractual provision mandating payment of the rebate within thirty days bars the city from deciding not to pay a previously obligated rebate. In other words, a legal obligation to pay rebates that have been obligated for appropriation by the city council and approved as part of the city’s budget arises under the agreement once Acciona pays its taxes for a given fiscal year. We conclude this is the proper interpretation of the parties’ agreement, and we agree with the district court that West Branch breached the agreement when it declined to pay rebates it had obligated for appropriation in fiscal years 2013 and 2014 after Acciona had already paid its taxes for those years.

West Branch’s arguments for rejecting this interpretation of the plain language of the parties’ agreement are not persuasive. For example, West Branch cites to the testimony of two trial witnesses, one of whom testified for Acciona, in support of its argument that the parties understood the word “appropriate” in their agreement to be synonymous with “pay” and that West Branch therefore never appropriated rebates for Acciona in fiscal years 2013 and 2014. While extrinsic evidence like that cited by West Branch may be considered when interpreting a contract, “the words of the agreement are still the most important evidence of the part[ies’] intentions at the time they entered into the contract.” Pillsbury Co. v. Wells Dairy, Inc., 752 N.W.2d 430, 436 (Iowa 2008). We have already concluded that the plain language of the parties’ agreement supports the interpretation adopted by the district court, not the interpretation advocated by West Branch. Moreover, the district court found that the Acciona witness who testified that the city had not made an “appropriation for payment” in fiscal years 2013 and 2014 did not mean that the rebates had not been appropriated, but rather that the rebates had not been paid. The district court’s findings regarding the meaning and weight to be accorded witness testimony are factual determinations we review for clear error. See Urban Hotel Dev., 535 F.3d at 879; Pillsbury, 752 N.W.2d at 436. Since we see no clear error here, we conclude that the evidence at trial does not require adopting the West Branch interpretation of the parties’ agreement.

On a related matter, we agree with the district court that an admission made by Acciona at the summary judgment stage does not compel a conclusion that the city did not appropriate rebates in fiscal years 2013 and 2014. It is true, as West Branch points out, that in its summary judgment papers Acciona averred that it was undisputed that “[t]he City did not appropriate the $265,140 rebate to be paid to Acciona” for fiscal year 2014. The district court noted, however, that Acciona has always argued that the rebate was appropriated, just not paid. In other words the district court concluded that Acciona, like its witness at trial, may have been imprecise with a term of art but did not intend to admit that the rebate was never appropriated. We agree. We have previously noted that “[a] judicial admission must be deliberate, clear, and unambiguous,” and we generally reject efforts to convert “carelessly worded” stipulations into dispositive admissions. Grandoe Corp. v. Gander Mountain Co., 761 F.3d 876, 885 (8th Cir. 2014) (internal quotation marks omitted). We agree with the district court that Acciona’s admission at summary judgment is best read as a poorly worded effort to admit that it is undisputed that the rebates were never paid, not an unambiguous admission that the rebates were never appropriated. West Branch is therefore not entitled to relief on this ground.

B.

West Branch also argues that if the district court’s interpretation of the parties’ agreement stands, the agreement itself becomes null and void because it “purports to contract away the city’s legislative power and duty to make — and reconsider — annual appropriation decisions.” There is no question, however, that the Iowa Code permits municipalities to enter into TIF agreements to stimulate economic development. See, e.g., Fults, 666 N.W.2d at 552-53 (citing Iowa Code § 403). There are limits to municipalities’ powers with respect to such agreements, such as the limits imposed by the Iowa Constitution on municipal indebtedness. See id. at 556. Municipalities generally avoid overstepping their bounds with respect to TIF agreements by making the payment of rebates under such agreements subject to annual appropriation. In other words, TIF agreements typically promise only that a city will consider appropriating a rebate each year and avoid promising that such a rebate will actually be paid. See, e.g., id. at 557. This is precisely the structure of the agreement between Acciona and West Branch in this case, and it is a structure that has routinely been approved by Iowa courts. See id.

West Branch nonetheless argues that the parties’ agreement is null and void because the agreement limits West Branch’s ability to decline to pay rebates at any time. In other words, West Branch contends that the fact that the agreement requires the city to pay rebates already obligated for appropriation within thirty days of Acciona paying its taxes amounts to an impermissible delegation of the city’s legislative power to appropriate funds. We disagree. First, and as noted above, TIF agreements are clearly authorized by Iowa law,- see Iowa Code § 403.6, which distinguishes the agreement here from the contracts in the cases on which West Branch relies for its legislative delegation argument, see, e.g., Marco Dev. Corp. v. City of Cedar Falls, 473 N.W.2d 41, 43 (Iowa 1991) (concluding that a contract to widen a street was an impermissible delegation of a city’s legislative function). Second, chapter 403.6 of the Iowa Code specifies that it should be “liberally interpreted to achieve the purposes of th[e] chapter” and notes that cities have the power “to make and execute contracts and other instruments necessary or convenient to the exercise of its powers under th[e] chapter.” Iowa Code § 403.6(1). Although the Iowa Code may not specifically authorize cities to agree to pay rebates that have been obligated for appropriation within a set time frame, a reasonable interpretation of this part of the Iowa Code suggests that cities have the power to include contractual provisions not specifically authorized so long as the provisions do not meaningfully limit the city’s legislative powers. Such is the case here.

The timing provision challenged by West Branch is extremely narrow and essentially procedural; as noted above, West Branch could decide to unappropriate rebates it had obligated for appropriation up until the moment at which Acciona pays its taxes for a given year. Under these circumstances, we conclude this provision and the agreement as a whole are enforceable under Iowa law.

C.

Finally, West Branch argues that the district court abused its discretion by “ allowing] Acciona to change its damages theory and calculation on the eve of trial.” Before the district court, West Branch sought relief from Acciona’s allegedly improper actions through a motion for sanctions that invoked Federal Rules of Civil Procedure 16(f) and 37(c). This motion was largely denied by the district court. We review a district court’s decision on whether to impose sanctions for abuse of discretion. See Carmody v. Kan. City Bd. of Police Comm’rs, 713 F.3d 401, 404-05 (8th Cir. 2013) (Rule 37(c)); Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 594-95 (8th Cir. 2001) (Rule 16(f)). We see no abuse of discretion here.

West Branch argues that Acciona was improperly permitted to change its damages calculation on the eve of trial. Specifically, West Branch claims that Acci-ona revealed too late that it would seek damages for both fiscal years 2013 and 2014 and that Acciona “ramped up the amount of tax rebates claimed” shortly before trial. The district court concluded that Acciona’s actions were essentially harmless because they resulted in “no surprise or prejudice to the City.” We see no abuse .of discretion in that decision. Contrary to West Branch’s argument, Acciona sought compensatory damages for multiple fiscal years from the very beginning of this lawsuit. See, e.g., Compl. at 3-4 (JA0007-08) (requesting compensatory damages for West Branch’s breach of contract). Accio-na’s pretrial clarification that the company would seek compensatory damages for fiscal years 2013 and 2014 was therefore entirely consistent with the theory of damages articulated by Acciona at the outset of this case, not a sea change on the eve of trial. This fact distinguishes this case from those on which West Branch relies for its argument that Acciona should not have been permitted to seek damages for fiscal year 2013. See, e.g., US Salt, Inc. v. Broken Arrow, Inc., No. 07-1988 (RHK/JSM), 2008 WL 2277602, at *3-4 (D. Minn. May 30, 2008) (disallowing a party to change its theory of damages on the eve of trial from lost profits to reliance, incidental, or consequential damages).

Furthermore, the damages calculation used by Acciona appears to have been based on information in the parties’ agreement and documents originally in West Branch’s control. The manner in which Acciona calculated its damages should therefore not have surprised or prejudiced the city. Indeed, it appears the city concedes that the damages calculation used by Acciona and the district court is accurate, as West Branch does not challenge the damage calculations themselves on appeal. Under these circumstances, we cannot find that the district court abused its discretion by concluding that Acciona’s alleged improper actions were harmless and declining to sanction the company.

III.

Accordingly, we affirm the judgment of the district court.

      . The Honorable Jon Stuart Scoles; United States Magistrate Judge for the Northern District of Iowa, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c).


text:
    AMERICAN RAILCAR INDUSTRIES, INC., Plaintiff-Appellant v. HARTFORD INSURANCE COMPANY OF THE MIDWEST, Defendant-Appellee Specialty Risk Services, LLC; Randy P. Murphy, Defendants
    No. 16-1900
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 12, 2017
    Filed: February 7, 2017

      Counsel who presented argument on behalf of the appellant was Herbert Beigel, of Tucson, AZ. The following attorney(s) appeared on the appellant brief, Andrew J. Scavotto, of Saint Louis, MO.
    Counsel who presented argument on behalf of the appellee was Scott Charles Harper, of Saint Louis, MO. The following attorney(s) appeared on the appellee brief; Aaron I. Mandel, of Saint Louis, MO.
    Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.
   MURPHY, Circuit Judge.

George Tedder worked at American Railcar Industries (ARI). He was injured while he was on a break from work. After his workers compensation claim was denied, he filed a civil action in federal court against ARI and was awarded over $1.5 million in damages. ARI then filed this insurance coverage action against Hartford Insurance Company (Hartford). The district court granted Hartford summary judgment after concluding that the policy did not cover Tedder’s injuries and that ARI’s breach of the notification provision in the policy also barred coverage. ARI appeals, and we affirm.

I.

George Tedder worked for ARI in Arkansas. While Tedder was on a break from work on April 24, 2008, he was struck by a golf cart driven by a coworker. The accident injured Tedder’s lower back. At the time of the accident, ARI carried workers compensation and employers’ liability insurance that had been issued by Hartford. Part one of the policy insured ARI against workers compensation claims. Under part one Hartford agreed to pay “the benefits required of [ARI] by the workers compensation law.” Part two of the policy insured ARI against bodily injury that arose “out of and in the course of the injured employee’s employment.” Part two also stated that “[t]here will be no right of action against [Hartford] under this insurance unless: 1. [ARI has] complied with all the terms of this policy.” Part four required ARI to “[p]romptly give [Hartford] all notices, demands, and legal papers related to the injury, claim, proceeding or suit.”

Tedder filed a workers compensation claim on June 6, 2008. ARI' promptly notified Hartford of Tedder’s injury and his workers compensation claim. The claim was referred to Georgia Diemer at Specialty Risk Services (SRS). SRS was a division of Hartford at the time of Tedder’s injury. Diemer hired an attorney to defend Ted-der’s claim against ARI. Throughout the workers compensation proceedings, Ted-der’s attorney told Diemer that he believed that Tedder’s workers compensation claim would not prevail because Tedder had been on break at the time of the accident. Tedder’s attorney indicated that he was nevertheless required to pursue the workers compensation claim in order to exhaust Tedder’s administrative remedies before filing a civil tort action. An administrative law judge (ALJ) determined that Tedder’s claim was not compensable under the Arkansas Workers’ Compensation Act because he had not been performing employment services at the time of the accident. The full Arkansas Workers’ Compensation Commission affirmed the ALJ’s decision.

On September 2, 2009, Tedder filed a tort action in federal district court against ARI. ARI did not promptly forward this complaint to Hartford. On September 21, ARI’s counsel in the tort action sent a letter to Hartford’s lawyer in the workers compensation action asking him for copies of any relevant discovery. Attached to the letter was the answer ARI had filed in the tort action. An ARI employee testified at his deposition that he thought he had notified Diemer in approximately October 2009 that, “hey, this has gone civil.” That employee could however not “recall with certainty” if this happened and stated that it was “just a conversation. It wasn’t to report it....” A jury awarded Tedder $2,284,88.20 in 2012, but the district court later reduced the award to $1,547,388.20. We affirmed. See Tedder v. Am. Railcar Indus., Inc., 739 F.3d 1104 (8th Cir. 2014).

ARI filed the present insurance coverage action against Hartford in 2013. ARI claimed that Hartford had breached part two of the insurance policy by refusing to cover its losses resulting from the Tedder civil action. The district court granted Hartford summary judgment after concluding that part two of the policy did not cover Tedder’s injuries because he had been on a break when the injury occurred. It additionally concluded that ARI had failed to notify Hartford of the civil action and that this breach of the policy obviated Hartford’s coverage obligations. ARI appeals.

II.

ARI argues that the district court erred by concluding that it breached the insurance policy by not promptly notifying Hartford of Tedder’s civil action. We review a district court’s “grant of summary judgment de novo and consider the facts in the light most favorable to the nonmoving party.” Nichols v. Tri-Nat’l Logistics, Inc., 809 F.3d 981, 985 (8th Cir. 2016). A district court’s grant of “[sjummary judgment is only appropriate when ‘there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.’ ” Id. (quoting Pinson v. 45 Dev., LLC, 758 F.3d 948, 951-52 (8th Cir. 2014)). We review de novo questions of contract interpretation. Anderson v. Hess Corp., 649 F.3d 891, 896 (8th Cir. 2011).

It is undisputed that Arkansas law governs this action. If an insurance policy treats the giving of notice of a lawsuit as a condition precedent to recovery, “the insured must strictly comply with the notice requirement, or risk forfeiting the right to recover from the insurance company.” Fireman’s Fund Ins. Co. v. Care Mgmt., Inc., 2010 Ark. 110, 361 S.W.3d 800, 803 (2010). If the notice requirement is a condition precedent, the “insurance company need not show that it was prejudiced by any delays in or lack of notification.” Id. The notice requirement in the policy here is a condition precedent to recovery because part two provides that ARI does not have a cause of action against Hartford unless ARI complies with all of the policy’s terms. ARI would therefore forfeit any right to recover from Hartford if it did not strictly comply with the policy’s notice requirement.

Under part four of the insurance policy, ARI was required to “[p]romptly give [Hartford] all notices, demands, and legal papers related to the injury, claim, proceeding or suit.” ARI argues that Ted-der’s claims throughout the workers compensation proceedings that he would file a civil action, ARI’s counsel’s September 21 letter to Hartford’s workers compensation counsel, and an ARI employee’s conversation with Diemer all put Hartford on notice that Tedder had filed a civil action against ARI. It is undisputed, however, that ARI did not forward to Hartford all of the notices, demands, or legal papers related to Tedder’s tort action. It therefore did not strictly comply with the policy and forfeited any right to recover from Hartford.

ARI alternatively argues that it was not required to comply strictly with the notice provision because Hartford had repudiated coverage. In Arkansas, an insurer is estopped from enforcing its notice provision if the insured can show that the insurer had unambiguously denied coverage and that the , denial induced the insured’s failure to comply with the notice provision. See Kimbrell v. Union Standard Ins. Co., 207 F.3d 535, 538 (8th Cir. 2000); Am. Fid. & Cas. Co. v. Ne. Ark. Bus Lines, 201 Ark. 622, 146 S.W.2d 165, 165-67 (1941). ARI argues that Diemer’s notes and Hartford’s workers compensation attorney’s statements to the ALJ denied coverage. Diemer’s notes indicate that she had told Tedder’s workers compensation attorney that Hartford did not belief the claim was compensable. Her notes do not however indicate that Hartford had informed ARI that it would deny coverage under part two of the policy if Tedder filed a tort action. At the workers compensation hearing the ALJ asked Hartford’s attorney whether it had insured ARI “for both comp and premises liability.” Hartford’s attorney responded, “No, Your Honor.” Since the policy here only insured ARI for workers compensation and employers liability, the Hartford attorney’s response was accurate and was not an unambiguous denial of coverage.

III.

For the reasons stated above, we affirm the judgment of the district court.

      . The Honorable Charles A. Shaw, United States District Judge for the Eastern District of Missouri.