govinfo:USCOURTS-tnwd-2_24-cv-02327-0

IN THE UNITED STATES DISTRICT COURT  
WESTERN DISTRICT OF TENNESSEE 
WESTERN DIVISION 
 
 
MEMPHIS IN MAY INTERNATIONAL 
FESTIVAL, INC., 
 
Plaintiff, 
) 
) 
) 
) 
) 
) 
 
 
 
  
v. ) No. 2:24-cv-02327-SHM-tmp 
 ) 
) 
) 
) 
) 
 
ARCH INSURANCE COMPANY, 
  
Defendant. 
 
 
  
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION 
FOR SUMMARY JUDGMENT 
Before the Court is Defendant Arch Insurance Company’s 
(“Arch”) Motion for Summary Judgment. (ECF No. 33.) For the 
reasons below, the Court GRANTS IN PART and DENIES IN PART  
Defendant’s motion. 
 
I. Background 
 The following factual background is undisputed unless 
otherwise noted.  Plaintiff Memphis in May International 
Festival, Inc. (“MIM”) has owned and operated the Beale Street 
Music Festival (“Festival”) and World Champion Barbecue 
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Competition (“Competition”) (collectively “Events”) in Memphis, 
Tennessee, since the 1970s. (ECF No. 36 ¶ 1.) MIM contracted 
with the Memphis River Parks Partnership (“MRPP”) for a venue to 
hold the 2023 Festival and Competition. (Id. at ¶ 2.) The parties 
executed the Tom Lee Park Rental Agreement (“Park Agreement”) on 
March 3, 2023, which designated Tom Lee Park, Ashburn-Coppock 
Park, and surrounding staircases as the places MIM would use to 
host the Events (collectively referred to as “the Park”). (Id. 
at ¶¶ 2-3.) The Park Agreement included a section allocating 
responsibility to pay for damage to the Park that might arise 
during the period MIM would use the Park.1 (Id. at ¶ 6.) The City 
of Memphis would pay the first $350,000 in damages. (Id.) MIM 
agreed to place money into an escrow account to pay for the next 
$250,000 in damages. (Id.) If damages exceeded $600,000, the 
City of Memphis would pay an additional $150,000 in damages. 
(Id.) MIM agreed to be responsible for all damages exceeding  
$750,000. (Id.) The Park Agreement also required MIM to obtain 
 
1 Plaintiff MIM appears to dispute this characterization of the Park 
Agreement, but does not state specifically what part of the 
characterization it disputes and does not dispute the existence or 
language of the Agreement. (ECF No. 36 ¶ 6.) MIM responds similarly 
to the description of the Park Agreement and the Arch Policy 
throughout its response to Arch’s statement of facts. (See generally 
ECF No. 36.) Therefore, the facts of the existence and language of 
the Park Agreement are undisputed and the characterization in this 
factual background is limited to this section and is not a legal 
conclusion.  
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comprehensive general liability insurance and deliver it to MRPP. 
(Id. at ¶ 10 and ECF No. 33-10 at 21.)  
 MIM obtained a comprehensive general liability insurance 
(“CGL”) policy (“the Policy”) from Defendant Arch covering the 
May 2023 Events. (ECF No. 36 at ¶ 11.) The  CGL Policy is the 
subject of this case.  
 On September 8, 2023, after MIM had hosted the Events, MRPP 
sued MIM in Tennessee state court for breach of contract.  MRPP 
alleged that MIM had failed to pay for the damage to the Park 
required by the Park Agreement. (See ECF No. 33-10 at 2-10 and 
ECF No 36 at ¶ 19.) MRPP alleged $1,425,366 in damages, so that 
MIM would owe an additional $675,366. (See ECF No. 33-10 at 2-
10 and ECF No 36 at ¶¶ 21-22.) MRPP’s complaint seeks $675,366 
plus interest and attorneys’ fees. (ECF No. 33-10 at 2-10.) The 
state court case is ongoing. See generally Ct. Docket, Riverfront 
Development v. Memphis in May, CT -3703-23 (Tenn. Cir. Ct. Div. 
9, filed September 8, 2023) https://circuitdata.shelbycountytn 
.gov/crweb/ck_public_qry_doct.cp_dktrpt_frames?backto=D&case_id
=CT-3703-23&begin_date=&end_date=. 
 In August 2023, relying on the Arch Policy, MIM asserted 
policy coverage for and defense against the damages MRPP sought 
in its state case. (ECF No. 36, ¶¶ 25, 27.) Arch denied coverage 
on October 13, 2023. (Id. at ¶ 26.) On April 2, 2024, Plaintiff 
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MIM filed suit against Defendant Arch in Tennessee court seeking 
(1) a declaratory judgement that the Policy covers the damages 
MRPP seeks from MIM in its state case, (2) breach of contract, 
(3) promissory estoppel, and (4) statutory bad faith under Tenn. 
Code Ann. § 56-7-105. (Id. ¶ 28.) Arch removed MIM’s suit to 
this Court on May 16, 2024, and brought the instant motion for 
summary judgment on all claims on June 12, 2025. (ECF No. 33.) 
 
II. Jurisdiction and Choice of Law 
 The Court has diversity jurisdiction under 28 U.S.C. 
§ 1332.  A federal district court has original jurisdiction of 
all civil actions between citizens of different states “where 
the matter in controversy exceeds the sum or value of $75,000, 
exclusive of interest and costs.” 28 U.S.C. § 1332(a)(1).   
For purposes of jurisdiction, MIM is a citizen of the State 
of Tennessee, with its principal place of business in Memphis, 
Tennessee. (ECF No. 1 ¶ 4.) Arch is a foreign corporation 
organized under Missouri law with its principal place of business 
in Jersey City, New Jersey, making it a citizen of Missouri and 
New Jersey. (Id. at ¶¶ 5-6.) The parties are completely diverse. 
The amount in controversy exceeds $75,000.  In its 
complaint, MIM seeks damages “in no event less than the total 
sum of any damages that may be awarded to MRPP in the MRPP 
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Litigation and the total sum of all costs and fees incurred by 
Plaintiff in defending itself in connection with said 
Litigation.” (ECF No. 1-3 at 15.) MRPP seeks $675,366 in damages 
from MIM in the state court case. (ECF No 33-10. at 8.) Even if 
MIM is successful in defending the state court case, it will 
seek attorneys’ fees from Arch for defending that case.  
Plaintiff also alleges statutory bad faith under Tenn. Code Ann. 
§ 56-7-105, which carries with it attorneys’ fees in this case. 
(ECF No. 1-3. at 14.) Given the possibility that MIM will lose 
its state court case and the attorneys’ fees at issue in both 
cases, it is more likely than not that the amount in controversy 
exceeds $75,000.  T he amount in controversy requirement is 
satisfied.  Williamson v. Aetna Life Ins. Co., 481 F.3d 369, 377 
(6th Cir. 2007) (holding that jurisdiction under § 1332 is proper 
where the amount in controversy “more likely than not” exceeds 
$75,000).  
 Federal courts sitting in diversity apply the choice-of-law 
rules of the forum state.  See Performance Contracting Inc. v. 
DynaSteel Corp., 750 F.3d 608, 611 (6th Cir. 2014); Mountain 
Laurel Assurance Co. v. Wortham, No. 217CV02660TLPTMP, 2018 WL 
5269829, at *3 (W.D. Tenn. Oct. 23, 2018).  Where insurance 
contracts lack a choice-of-law provision, “Tennessee courts 
apply the substantive law of the state in which the policy was 
issued and delivered.”  Standard Fire Ins. Co. v. Chester–
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O’Donley & Assocs., Inc., 972 S.W.2d 1, 5 (Tenn. Ct. App. 1998); 
see also Tenn. Code Ann. § 56 –7–102 (“[E]very contract [issued 
by any insurance company doing business in Tennessee] shall be 
held as made in [Tennessee] and construed solely according to 
the laws of [Tennessee]”). 
 The Policy does not have an explicit choice of law 
provision.  It was issued in Tennessee to MIM. (ECF No. 33-8 at 
5-7.) Neither party disputes the application of Tennessee law,  
and both parties argue citing Tennessee law.  The Court applies 
Tennessee law.   
 
III. Standard of Review 
Under Federal Rule of Civil Procedure 56(a), a court must 
grant a party’s motion for summary judgment “if the movant shows 
that there is no genuine dispute as to any material fact and the 
movant is entitled to judgment as a matter of law.” Fed. R. Civ. 
P. 56(a). The moving party must show that the nonmoving party, 
having had sufficient opportunity for discovery, lacks evidence 
to support an essential element of its case. See Fed. R. Civ. P. 
56(c)(1); Peeples v. City of Detroit, 891 F.3d 622, 630 (6th 
Cir. 2018).  All facts, evidence, and inferences drawn therefrom 
must be “viewed in the light most favorable to the non-moving 
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party.”  Brown v. Bd. of Educ. of Shelby Cnty. Sch., 47 F. Supp. 
3d 665, 695 (W.D. Tenn. 2014).   
The Court “is not required to speculate on which portion of 
the record the nonmoving party relies, nor is it obligated to 
wade through and search the entire record for some specific facts 
that might support the nonmoving party's claim.” InterRoyal Corp. 
v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989).  Although 
summary judgment must be used carefully, it “is ‘an integral 
part of the Federal Rules as a whole, which are designed to 
secure the just, speedy, and inexpensive determination of every 
action’ rather than a ‘disfavored procedural shortcut.’” 
F.D.I.C. v. Jeff Miller Stables, 573 F.3d 289, 294 (6th Cir. 
2009) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 327  
(1986)).   
Questions of law are decided by the Court.  Where, as here, 
the Court has jurisdiction based on diversity of citizenship and 
Tennessee law applies, the Court must “anticipate or predict how 
the Tennessee Supreme Court would decide the issues based on all 
of the available data.”  Landmark Am. Ins. Co. v. HECO Realty, 
LLC, No. 1:20-CV -02631-STA-JAY, 2024 WL 4920771, at *7 (W.D. 
Tenn. Sept. 24, 2024) (citing Fox v. Amazon.com, Inc., 930 F.3d 
415, 422 (6th Cir. 2019).  That task includes considering the 
published opinions of the Tennessee Court of Appeals.  Lindenberg 
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v. Jackson Nat'l Life Ins. Co., 912 F.3d 348, 358 (6th Cir. 
2018).  Unpublished Tennessee Court of Appeals opinions are 
considered persuasive, nonbinding authority, unless otherwise 
noted.  Tenn. Sup. Ct. R. 4(G)(1).  Federal Courts must be 
“extremely cautious about adopting substantive innovation in 
state law.”  Fox, 930 F.3d at 422. 
 
IV. Analysis 
The Tennessee Supreme Court has held that “[i]nsurance 
policies are, at their core, contracts,” and “questions regarding 
the extent of insurance coverage present issues of law involving 
the interpretation of contractual language” in the policies. 
Garrison v. Bickford, 377 S.W.3d 659, 663–64 (Tenn. 2012). Courts 
interpret insurance policies using the same tenets applied to 
other contracts.  Id. at 664.  The policy should be construed as 
a whole, in a reasonable and logical manner with terms given 
their ordinary meaning, with the primary purpose “to ascertain 
and give effect to the intent of the parties.”  Id., citing Clark 
v. Sputniks, LLC, 368 S.W.3d 431, 441 (Tenn.2012) 
Insurance contracts are “strictly construed in favor of the 
insured, and if the disputed provision is susceptible to more 
than one plausible meaning, the meaning favorable to the insured 
controls.”  Garrison, 377 S.W.3d at 664; citing Tata v. Nichols, 
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848 S.W.2d 649, 650 (Tenn.1993).   A “strained construction may 
not be placed on the language used to find ambiguity where none 
exists.” Id., citing Farmers–Peoples Bank v. Clemmer, 519 S.W.2d 
801, 805 (Tenn.1975). 
Here, the parties disagree about the meaning of the Policy 
and whether it applies to the damages MRPP seeks in the state 
court litigation.  This Court construes each relevant clause of 
the Policy in accordance with the above principles stated above. 
 
A. Duty to Defend vs. Duty to Indemnify 
MIM asserts in its complaint that Arch owes MIM both the 
“duty to defend” and the “duty to indemnify” in the state 
litigation against MRPP. (ECF No. 1-3 at ¶¶ 55, 71-72.) The 
parties appear to agree that the duty to defend is determinable 
at the summary judgment stage, while disagreeing about whether 
the duty to indemnify can be resolved at that stage. (Compare 
ECF No. 33-2 at 4-5 with ECF No. 35 at 10-13.)   
 
B. Duty to Defend 
For the following reasons, Arch has a duty to defend MIM in 
the state court proceeding.  Determining an insurer’s duty to 
defend is a matter of law that “may be resolved by summary 
judgment where there are no genuine issues of material fact.”  
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Travelers Indem. Co. of Am. v. Moore & Assocs., Inc., 216 S.W.3d 
302, 305 (Tenn. 2007).  A duty to defend arises “solely” from 
“the allegations contained in the underlying complaint.”  Id., 
citing St. Paul Fire & Marine Ins. Co. v. Torpoco, 879 S.W.2d 
831, 835 (Tenn.1994).  “An insurer's duty to defend the insured 
is triggered when the underlying complaint alleges damages that 
are within the risk covered by the insurance contract and for 
which there is a potential basis for recovery.”  Forrest Const., 
Inc. v. Cincinnati Ins. Co., 703 F.3d 359, 363 (6th Cir. 2013)  
(emphasis in original) (internal quotations omitted).  An insurer 
cannot “refuse to defend an action against its insured unless it 
is plain from the face of the complaint that the allegations 
fail to state facts that bring the case within or potentially 
within the policy's coverage.”  Drexel Chem. Co. v. Bituminous 
Ins. Co., 933 S.W.2d 471, 480 (Tenn. Ct. App. 1996) (internal 
quotations omitted).   
The duty to defend arises if even one of the allegations in 
the concurrent state court case is covered by the insurance 
policy.  Travelers, 216 S.W.3d at 305.  Although the duty to 
indemnify is based on facts found by the trier of fact, the duty 
to defend is “based on the facts alleged.”  Id.  Doubt about 
whether the claimant in the other case has stated a cause of 
action that falls within the insurance policy’s coverage “is 
resolved in favor of the insured.”  Id. 
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The Court must determine whether MRPP’s allegations in the 
state court case against MIM are “within or potentially within” 
the Policy’s coverage.  Drexel Chem. Co., 933 S.W.2d at 480.  
Doing so requires the Court to interpret the Policy.2  
1. The meaning of “occurrence” 
Arch’s Policy provides that Arch “will pay those sums that 
[MIM] becomes legally obligated to pay as damages because of 
‘bodily injury’ or ‘property damage’ to which this insurance 
applies.” (ECF No. 36 at ¶ 12) The Policy provides that the 
insurance “applies to ‘bodily injury’ and ‘property damage’ only 
if: (1) the ‘bodily injury’ or ‘property damage’ is caused by an 
‘occurrence’ that takes place in the ‘coverage territory.’” (Id. 
at ¶ 13) The Policy defines “occurrence” as “an accident, 
 
2 MIM argues that the Court should examine the “entire factual 
situation in determining whether the underlying suit alleges claims 
that trigger the insurer’s duty to defend,” citing Main St. Am. 
Assurance Co. v. Marble Sols., LLC, 557 F. Supp. 3d 844, 856 (W.D. 
Tenn. 2021). (ECF No. 35 at 11.) The language from Marble Sols, 
which is absent context, is unpersuasive.  Under Tennessee law, 
analysis of the duty to defend is limited to the underlying 
complaint.  In Marble Sols, the court did not look beyond the 
underlying complaint.  It considered the factual situation alleged 
in the underlying complaint to determine whether the insurer had a 
duty to defend.  See Marble Sols., 557 F. Supp. 3d at 855-858.  The 
quote MIM uses from Marble Sols cites Gassaway v. Travelers Ins. 
Co., 439 S.W.2d 605, 607 (1969), which discussed the “entire factual 
situation” in determining whether an insurer was liable for damages 
resulting from an underlying lawsuit, not whether the insurer had a 
duty to defend that lawsuit.  Id.  The court in Marble Sols used the 
standard the Court uses here, examining “solely…the allegations 
contained in the underlying complaint.”  Marble Sols., 557 F. Supp. 
3d at 851 (citing Travelers, 216 S.W.3d at 305). 
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including continuous or repeated exposure to substantially the 
same general harmful conditions.” (Id.)  
“The insuring agreement should be construed before the 
exclusions.”  Travelers, 216 S.W.3d at 306.  Both parties agree 
that, for purposes of summary judgment, the damage to Tom Lee 
Park that MRPP alleges constitutes “property damage.” (Compare 
ECF No. 33-2 at 7 with ECF No. 35 at 12.) The parties dispute 
whether the damage to the Park was an “occurrence” as defined by 
the Policy. (ECF No. 33-2 at 6 and ECF No. 35 at 10.) Where, as 
here, the relevant factual record is undisputed, deciding whether 
there was an “occurrence” under an insurance policy is proper 
when deciding a motion for summary judgment. See Travelers, 216 
S.W.3d at 304-08.  
The Policy defines “occurrence” as “an accident, including 
continuous or repeated exposure to substantially the same general 
harmful conditions.” (ECF No. 36 at ¶ 13.) In Travelers, the 
Tennessee Supreme Court concluded that “accident” in a CGL policy 
means “an unforeseen or unexpected event.”  216 S.W.3d at 308.  
That can include “negligent acts of the insured causing damage 
which is undesigned and unexpected.”  Id.  The Tennessee Supreme 
Court “consider[s] foreseeability from the perspective of the 
insured.”  Id.  In general, this Court must construe the Policy 
in favor of the insured.  See Travelers, 216 S.W.3d at 305 (“Any 
doubt as to whether the claimant has stated a cause of action 
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within the coverage of the policy is resolved in favor of the 
insured”); see also Planet Rock, Inc. v. Regis Ins. Co., 6 S.W.3d 
484, 491 (Tenn. Ct. App. 1999) (giving the underlying complaint 
a “liberal construction” in finding for the insured); see also 
Am. Justice Ins. Reciprocal v. Hutchison, 15 S.W.3d 811, 815 
(Tenn. 2000) (“If the ambiguous language limits the coverage of 
an insurance policy, that language must be construed against the 
insurance company and in favor of the insured”). 
Defendant Arch’s central argument is that Plaintiff MIM 
expected the damage to the Park because of clauses in the Park 
Agreement between MIM and MRPP. (ECF No. 33-2 at 6-10.) Those 
clauses include the damages allocation clause described above, 
the parties’ general plan to inspect the Park before and after 
the Events, and other minor clauses that require MIM to make 
reasonable efforts to minimize damage to the Park. (Id.) As 
stated, the damages allocation clause allocated the first 
$350,000 in damages to the Park to the City of Memphis, the next 
$250,000 in damages to MIM, the next $150,000 in damages to the 
City, and all additional damages to MIM. (ECF No. 36 at ¶  6.) 
Arch argues that this clause in the Park Agreement means that 
MIM foresaw damages to the Park, even those in excess of 
$750,000, making those damages  expected and not  based on an 
“accident” or an “occurrence” under the Policy. (ECF No. 33-2 at 
6-10.) Plaintiff MIM responds that the damages in excess of 
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$750,000, for which it is being sued in the concurrent state 
court case, were unexpected and are based on an “occurrence” 
under the Policy. (ECF No. 35 at 12-13.) 
The alleged damages in excess of $750,000 are based on an 
“occurrence” under the Policy.  MRPP’s complaint in the state 
court case does not specifically allege what caused the damage 
to the Park.3 (ECF No. 33-10 at 2-10.) The complaint does allege 
the dollar amount of damages, along with an attached exhibit 
detailing some of the specifics of the alleged damages. (ECF No. 
33-10 at 7.) The complaint also alleges that damages exceeded 
the $750,000 the parties allocated in the Park Agreement.   
One might argue that MIM expected some damage to the Park, 
but one cannot know from the complaint how the damage was alleged 
to have occurred, and one cannot conclude from the undisputed 
record that MIM expected damages to the Park to exceed $750,000.  
MIM’s failure to expect the amount of damage alleged is evidenced 
by the fact that the Park Agreement required MIM to purchase CGL 
insurance to cover “property damages,” presumably because MIM 
would be liable for all damages to the Park in excess of $750,000. 
(ECF No. 33-10 at 21.) The same provision required MIM to present 
 
3 The most specific statement in the complaint is that the damages 
resulted “from [MIM’s] 2023 festivals.” (ECF No. 33-10 at 3.) That 
statement comes from the complaint’s introduction, not its set of 
numbered factual allegations. (Id.) 
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the CGL policy it purchased to MRPP and prevented MIM from 
canceling that policy without notifying MRPP. (Id.)  
The before-and-after Park inspections and the contractual 
requirements that MIM take steps to minimize damage to the Park 
do not demonstrate that MIM expected damages in excess of 
$750,000.  Merely taking precautions for an event is not  
conclusive evidence that the precaution taker expected the event.  
One would not say that one “expects” a fire because one owns a 
fire extinguisher.  Arch’s logic would imply that purchasing 
insurance to cover an event means that one expects the event, 
making insurance contracts meaningless.  See Crestbrook Ins. Co. 
v. Crosby, No. 2:22-CV-2406-MSN-ATC, 2023 WL 3767085, at *6 (W.D. 
Tenn. June 1, 2023) (“some outcomes that are foreseeable are 
nevertheless ‘accidents’: Otherwise, a liability policy would be 
rendered almost meaningless”) (citing Travelers, 216 S.W. 3d at 
308-09).4   
For purposes of determining the duty to defend, the damages 
in excess of $750,000 that MRPP claims in the concurrent state 
court case were based on an “occurrence” under the Policy.  The 
state court complaint does not specify the manner in which the  
damages alleged occurred, and the undisputed record demonstrates 
 
4 Although Crestbrook discusses this point in the context of whether 
particular negligent acts are covered by an insurance policy, the 
principle is the same as the principle here.  
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that MIM did not expect damage to the Park to exceed $750,000.  
Because there was an occurrence, the state court claim, at this 
stage of the analysis, alleges damages “within or potentially 
within the policy's coverage.”  Drexel Chem. Co., 933 S.W.2d at 
480.5  
2. Exclusion 2.j.(1), of Property “Rent, Owned, or 
Occupied.” 
After Tennessee courts interpret the insuring agreement, 
they consider its exclusions.  Travelers, 216 S.W.3d at 306.  For 
Arch to have a duty to defend, the MRPP state court allegations 
must not fall under an exclusion and must come “within or 
potentially within the policy's coverage.”  Drexel Chem. Co., 
933 S.W.2d at 480.   
 
5 MIM argues that this Court should decide that the damage MRPP 
alleges to the Park is an “occurrence” based on a letter from Mark 
Thompson of American Specialty, Arch’s authorized agent, to MIM. 
(ECF No. 35 at 7, 12.) In that letter, Thompson says that the damage 
to the Park constitutes an “occurrence,” but denies coverage on 
different grounds. (ECF No. 33-8.) Inconsistent, out-of-court 
positions taken by Arch and its agents are not relevant to defining 
“occurrence” for purposes of the present analysis.  An insurer may 
give alternate or incorrect legal reasons for its denial of coverage 
and not be estopped from correcting or offering different reasons 
for denying coverage in court. See Richards Mfg. Co. v. Great Am. 
Ins. Co., 773 S.W.2d 916, 919 (Tenn. Ct. App. 1988) (“if the insurer 
gives proper notice of a reservation of rights it will not waive its 
rights to rely on a breach of condition…. It is not required that the 
reason given for the insurer's position be legally correct.  The 
position taken may be correct, but for other legal reasons.  It is 
the insurer's conclusion regarding the existence or non-existence of 
certain coverage that must be clearly and fairly communicated to the 
insured, not its legal reasons therefor”) 
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Arch argues that the alleged damage to the Park is excluded 
by 2.j.(1) of the Policy. (ECF No. 33-2 at 10-13.) That exclusion 
provides that the insurance does not apply to “property damage 
[to]…property you own, rent, or occupy.” 6 (Id. at 11.) Arch 
argues that MIM “rented” and/or “occupied” the Park, so that the 
property damage alleged falls under the exclusion. (Id. at 11 -
13.) Arch relies on the language of the Park Agreement between 
MIM and MRPP, the property relationship between the two parties 
established by that Agreement, and the meaning of the word 
“rent”. (Id.)  
MIM argues that it did not “rent” or “occupy” the Park, but 
had a license to use the Park for the Events, so that the alleged 
damage to the Park is not excluded by the 2.j.(1) exclusion. 
(ECF No. 35 at 15-18.) In the alternative, MIM argues that there 
is an exception to the exclusion that covers the damage alleged 
in the state court case.  Section 2.j. in relevant part, provides 
that exclusion 2.j.(1) does “not apply to ‘property damage’…to 
premises…rented to you for a period of seven or fewer consecutive 
days.”7 (ECF No 35 at 15-17.) MIM argues that, even if it rented 
the Park, the exception applies because any rental or occupation 
did not exceed seven consecutive days, but lasted only during 
 
6 “you” in this context refers to MIM, the insured party.  
7 This exception to the 2.j.(1) exclusion does not include the terms 
“occupy” or “own.” 
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the Events that took place during May 5-7, 2023, and May 17-20, 
2023. (Id.) 
MIM argues that “there are genuine and material factual 
disputes as to whether MIM ‘rented’ the [Park] for the Events.” 
(Id. at 17.) However, MIM disputes no facts relevant to this 
issue.  Instead, it argues that the Park Agreement between MIM 
and MRPP is a license.  That is, MIM disputes the legal 
characterization of the contractual relationship between itself 
and MRPP governing MIM’s use of the Park.   
The Court need only interpret the Policy and the Park 
Agreement to decide whether MIM “rented” or “occupied” the Park 
for purposes of determining the duty to defend.  Both are issues 
of law, not fact.  See Clark, 368 S.W.3d at 441 (Tenn. 2012) 
(“[t]he question of the extent of insurance coverage is a 
question of law involving the interpretation of contractual 
language”) and Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn. 
1999) (“[t]he interpretation of a contract is a matter of law”).  
It is for the Court to interpret the Park Agreement and to decide 
whether MIM “rented” or “occupied” the Park during the relevant 
time.
8 
 
8 The Parties do not dispute the existence or content of the Park 
Agreement. (ECF No. 36 at ¶2.) They only disagree about its 
meaning.  
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Insurance policy exclusions “must be construed against the 
insurance company and in favor of the insured.”  Martin v. 
Powers, 505 S.W.3d 512, 517 (Tenn. 2016) (citing Travelers Ins. 
Co. v. Aetna Cas. & Sur. Co., 491 S.W.2d 363, 367 (Tenn. 1973)).9 
That standard is consistent with the standard that “contracts of 
insurance are strictly construed in favor of the insured, and if 
the disputed provision is susceptible to more than one plausible 
meaning, the meaning favorable to the insured controls.” Martin, 
505 S.W.3d at 517.  
The Policy does not define “rent” or “occupy.”  When a 
policy does not define words, Tennessee courts give “those words 
their usual, natural and ordinary meaning.”  Marlin Fin. & 
Leasing Corp. v. Nationwide Mut. Ins. Co., 157 S.W.3d 796, 809 
(Tenn. Ct. App. 2004) (internal citations omitted).  Black’s Law 
Dictionary defines “rent” as “to pay for the use of another's 
property.”  RENT, Black's Law Dictionary (12th ed. 2024).  The 
parties cite no cases and the Court is aware of no cases decided 
under Tennessee law that define the phrase “own, rent, or occupy” 
 
9 Arch quotes language from a 1998 Tennessee Court of Appeals case 
that says “[e]xclusions should not be construed broadly in favor of 
the insurer, nor should they be construed so narrowly as to defeat 
their intended purpose.” Standard Fire Ins. Co., 972 S.W.2d at 8. 
That appears to be a slightly different standard for interpreting 
insurance policy exclusions than the standard used by the Tennessee 
Supreme Court in Martin in 2016. The Tennessee Supreme Court does 
not appear to have cited language from Standard Fire since deciding 
Martin.  The Tennessee Supreme Court standard controls.  
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in the context of a CGL insurance policy, although that phrase 
is relatively common in CGL policies. See 9 Couch on Ins. § 
126:16 (“The two most common are exclusions related to property 
in the insured's ‘care, custody, and control’ and to property 
‘owned, rented, or occupied’ by the insured”). 
Determining whether and for how long MIM rented or occupied 
the Park initially appears straightforward.  MIM signed the Park 
Agreement with MRPP for use of the Park. (ECF No. 36 at ¶¶ 2-3.) 
MIM was defined as a “renter” in that Agreement. (Id. at ¶ 4.) 
The Agreement provided that MIM would “occupy and use the Park 
from April 22,2023-May 27, 2023.” (Id.) That included necessary 
set up and disassembly days surrounding the two Events. (Id.) 
The period is longer than seven consecutive days, the exception 
to the exclusion that MIM argues applies.  MIM nowhere alleges 
that it performed the Park Agreement on different dates or in a 
way different than the Agreement provides.  The Policy itself  
refers to the Park as premises that MIM owns, rents, or occupies. 
(ECF No. 33-5 at 15.) Based on the language of the Park Agreement 
and the ordinary use of the words “rent” and “occupy,” it might 
appear that MIM rented or occupied the Park for more than seven 
consecutive days, so that the damage alleged by MRPP is excluded 
by the Policy. 
However, the inquiry does not end there.  Tennessee courts 
have not merely taken the language used in a contract conveying 
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a property interest to define the property interest at stake.  
In Williams v. Starace, for instance, the Court of Appeals 
concluded that a contract titled “Agreement of Purchase and Sale” 
of a property was a lease of that property, not a sale.  Williams 
v. Starace, No. 85-162-II, 1985 WL 4074, at *1 (Tenn. Ct. App. 
Oct. 29, 1985) (“This Court concludes that the ‘Agreement of 
Purchase and Sale’ was, in effect a lease of the described 
property”).  The court analyzed the language of the contract 
itself and the rights accorded the parties.  Id.  A federal court 
applying Tennessee law took a similar approach in United States 
v. Anderson Cnty., Tenn., 575 F. Supp. 574 (E.D. Tenn. 1983), 
aff'd, 761 F.2d 1169 (6th Cir. 1985).  There, the court examined 
the property interest actually conveyed to a party (Union 
Carbide) rather than the label the parties applied to the 
property interest.  The court reasoned that: “[i]n determining 
what interest Union Carbide may have in [the property], however, 
the Court is not bound by the terminology used by the parties to 
the Contract.”  Anderson Cnty., 575 F. Supp. at 576.  This Court 
must therefore consider the language and the rights accorded MIM 
in the Park Agreement, and not merely characterize the Agreement 
as a rental agreement based on its title and terminology. 
MIM argues that, despite its title, the Park Agreement was 
in fact a “license” to use the Park for the April 22 to May 27 
period. (ECF No. 35 at 15-18.) MIM argues that, because the 
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Agreement was a mere license, it did not “rent” or “occupy” the 
Park during that period, and that, if it did “rent” the Park, it 
did so for fewer than seven consecutive days. (Id.) As stated, 
this Court is aware of no cases decided under Tennessee law that 
have collectively defined “own, rent, or occupy” or their 
variations in a CGL contract.  The only case of which the Court 
is aware that speaks to this issue is Paktank Louisiana, Inc. v. 
Marsh & McLennan, Inc., 688 F. Supp. 1087, 1092 (E.D. La. 1988).  
In Paktank, decided under New York law, the court concluded that 
an insurance policy’s exclusion of property damage to property 
“owned or occupied by or rented to the insured” did not apply to 
a dock the insured had a license to use.  Id. at 1093.
10  This 
Court will apply that principle here.  If MIM can show that it 
had a license to use the Park during the term of the Agreement, 
the damage to the property would not be excluded by exclusion 
2.j.(1). 
“A ‘license,’ with respect to real estate, is an authority 
to do a particular act or series of acts on another's land 
without possessing any estate therein.”  Lange v. Sullivan, No. 
W201801218COAR3CV, 2019 WL 2024581, at *2 (Tenn. Ct. App. May 8, 
 
10 The Paktank court did find that the policy excluded the dock 
damage because the insured “used” the property in accordance 
with a different exclusion mandating that damage to “property 
used by the insured” was excluded from coverage, an exclusion 
not found in Arch’s Policy.  Paktank, 688 F. Supp. at 1093.
 
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2019) (citing Barksdale v. Marcum, 7 Tenn. App. 697, 708, perm. 
app. denied (Tenn. July 14, 1928)).  Licenses are “not 
assignable, and [are] generally revocable at the will of the 
licensor.”  Anderson Cnty., 575 F. Supp. at 578, (citing 
Barksdale, 7 Tenn. App. At 708).  Licenses “generally do[] not 
create an interest in land.”  Lange, 2019 WL 2024581, at *2.   
MIM cites Anderson Cnty., to demonstrate the difference 
between a license and a lease.11  In that case, discussed above, 
the court applied Tennessee law in deciding how to determine the 
property relationship between the U.S. government, which owned 
a piece of land, and Union Carbide, which used that land.  
Anderson Cnty., 575 F. Supp. 574 .  In addition to the factors 
cited above, the court wrote that, “[g]enerally, during the 
existence of a lease, the tenant is the owner of the premises 
and entitled to exclusive possession.” Id. at 577.  The absence 
of exclusive possession favored finding a license.  Id.  In 
Anderson Cnty., stringent limitations on using and altering the 
property weighed in favor of finding a license rather than a 
lease. Id. at 578 (“control over the business of [Union Carbide] 
 
11 Although the Policy uses the term “rent” rather than “lease,” the 
two are largely synonymous.  See LEASE, Black's Law Dictionary (12th 
ed. 2024) “A contract by which a rightful possessor of real property 
conveys the right to use and occupy the property in exchange for 
consideration, usu. rent” (emphasis added).  Even if the two are not 
synonymous, the analysis in Anderson Cnty. is relevant in deciding 
what a “license” is and is therefore relevant here.  
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and rights of entry and inspection retained by the owner of the 
realty are so extensive as to negative any notion that a lease 
of the realty was intended or effected”).   
Summarizing the caselaw above, when determining whether a 
party’s property rights constitute a license, Tennessee law 
considers (1) whether there is specific authority to do a 
particular act or series of acts on another's land without 
possessing any estate therein; (2) whether the right is 
assignable; (3) whether the rights are revocable at the will of 
the licensor; (4) whether the user of property has exclusive 
possession; and (5) the extent to which the use is limited and 
regulated by the owner.  
a. Authority to do particular acts 
Factor (1) addresses the purpose of the agreement.  “A 
‘license,’ with respect to real estate, is an authority to do a 
particular act or series of acts on another's land without 
possessing any estate therein.”  Lange, 2019 WL 2024581, at *2.  
Section 1 of the Park Agreement provides that “[MRPP] hereby 
grants permission to [MIM] to use the Park…for the Beale Street 
Music Festival and World Championship Barbeque Cooking Contest.” 
(ECF 33-10 at 11.) The Agreement later provides that “[MIM] will 
use the Park for the Event (which includes the Beale Street Music 
Festival and World Championship Barbeque Cooking Contest)…and 
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for no other purpose whatsoever without the prior written consent 
of [MRPP].” (Id.) The language in the Agreement is clear that 
MIM’s use of the Park is limited to a particular set of acts on 
MRPP’s land during and surrounding the Events.  It is not a 
general grant of an interest in a property, but a specific grant 
of the authority to do particular acts on a piece of property.  
Factor (1) therefore favors finding that MIM’s interest is a 
license. 
b.  Assignability  
 Factor (2) considers assignability of the potential 
property interest.  Section 24 of the Park Agreement’s terms and 
conditions provides that “[MIM] shall not assign this Agreement.” 
(ECF No. 33-10 at 22.) A license is not assignable.  Barksdale, 
7 Tenn. App. at 708.  Factor (2) therefore favors finding a 
license between MIM and MRPP. 
c. Revocability 
Factor (3) says that licenses are “generally revocable at 
the will of the licensor.”  Id.  The Park Agreement does not 
appear to be revocable at the will of the licensor, MRPP.  No 
clause in the agreement explicitly grants or denies revocability.  
The third clause of the terms and conditions provides that 
“[MRPP] shall have the right to immediately terminate this 
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Agreement upon the failure to comply with the Park Agreement,” 
but later provides that MIM has a right to cure any such failure. 
(ECF No. 33-10 at 15.) Therefore, this factor weighs against 
finding a license for MIM to use the Park. 
d. Exclusive Possession 
Factor (4) addresses exclusive possession.  Absence of a 
right of exclusive possession suggests a license rather than a 
lease.  See Anderson Cnty., 575 F. Supp. at 577-78.  The Park 
Agreement provides that “[a]ny exclusive use of the Park by 
Renter shall be limited to the places and times shown in this 
Agreement (May 5 - 7, 2023 and May 17 - 20, 2023) or as otherwise 
agreed in writing by Renter and Partnership.” (ECF No. 33-10 at 
16.) Neither party has offered a written agreement altering this 
section.   
Section thirteen of the terms and conditions lays out 
policies to maintain public access to the Park, even during the 
“rental period.” (Id. at 19.) It provides that “[MIM] shall 
ensure uninhibited public access from the Riverside Drive 
pedestrian bridge across Ashburn-Coppock Park to Martyrs Park at 
all times. To provide connected access to the riverfront 
throughout the month of May, the Bluff Walk must remain open at 
all times during the Event rental period unless closed at the 
written direction of Memphis Police Department.” (Id.)  
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Section three of the terms and conditions provides that 
“Representatives of [MRPP] shall be designated by [MRPP] prior 
to the event and shall have the right to enter all portions of 
the Park at any time and on any occasion, including entering the 
portion of the Park rented to [MIM].” (Id. at 15.) Thus, the 
owner retained a right to enter at all times throughout the 
Agreement.   
The Park Agreement does not grant a right of exclusive 
possession to MIM.  Factor (4) therefore weighs in favor of 
finding that the Park Agreement grants a license. 
e. Owner Regulation of Use 
Factor (5) addresses the owner’s regulation of the 
property’s use.  In Anderson Cnty., the court found that “control 
over the business of [the licensee] and rights of entry and 
inspection retained by the owner of the realty are so extensive 
as to negative any notion that a lease of the realty was intended 
or effected.”  The court therefore found a license rather than 
a lease in the agreement to use the land.  Anderson Cnty., 575 
F. Supp. at 574.  In the Park Agreement, MIM’s use of the Park 
is also highly regulated by the terms and conditions.  For 
example, section five regulates the sale of alcohol by vendors 
at the Park. (ECF No. 33-10 at 16.) Section eight mandates 
approval by MRPP of any electrical, plumbing, carpentry, and 
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other services MIM requires during its use of the Park. (Id.) 
Section eleven mandates how and when litter is to be removed and 
limits the use of pyrotechnics at the Park. (Id. at 17.) Section 
twelve prevents MIM from erecting fences at certain Park 
locations. (Id. at 19.) Section fourteen bars MIM from driving 
stakes into the ground at certain locations. (Id. at 20.) The 
Operation Policy and Procedures detail the specific paths MIM’s 
vendors, subcontractors, employees, and other associated persons 
may use during the Events. (Id. at 23.) 
In short, the Park Agreement’s regulations of MIM’s 
activities are so extensive that characterizing MIM’s interest 
in the Park as a leasehold or rental would be improper.  Like 
the agreement in Anderson Cnty., this factor favors finding a 
license.  
f. Conclusion 
Factors (1), (2), (4), and (5) favor finding that MIM had 
a license from MRPP to use the Park.  Only factor (3) weighs 
against that conclusion.  Even if Factor (4), addressing 
exclusive possession, were construed to weigh in favor of finding 
a rental during the Event dates of May 5-7 and 17-20, 2023, that 
period would fall under the exception to exclusion 2.j.(1).   
Arch argues that this result would create a “moral hazard” 
because other courts have held that the primary function of “own, 
rent, or occupy” exclusions is to “prevent the insured from using 
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a liability insurance policy as if it provided property insurance 
and insulate against the moral hazard problem where an insured 
has less incentive to take precaution owing to the existence of 
insurance.”  Charter Oak Fire Ins. Co. v. Coleman, 273 F. Supp. 
2d 903, 912 (W.D. Ky. 2003) (internal citations omitted).  That 
argument is unpersuasive for three reasons.   
First, finding MIM had a license to use the Park accords 
with the general principle stated in Charter Oak.  “Tennessee 
Courts have uniformly held that licenses create no interest in 
real property.”  Lange, 2019 WL 2024581 at *2.   
Second, the Park Agreement itself mandates and incentivizes 
MIM to take precautions to minimize damage to the Park.  The 
Park Agreement explicitly provides measures MIM must take to 
protect the Park. 12  The Park Agreement’s damage allocation 
clauses also incentivize MIM to minimize damage to the Park. 
(ECF No. 33-10 at 11-12.)  
Third, the Policy provides some level of property insurance 
in exception K(1), discussed below.  That section provides an 
exception to exclusion 2.j.(1).  Exception K(1) provides that 
 
12 Clause seven states that “[MIM] shall promote positive messages 
about the Park and urge its vendors, volunteers, BBQ team members 
and guests, and ticket buyers to respect the Park to avoid damaging 
the Park property”.  The Operation Policy and Procedures state that 
“[MIM] agrees to survey all irrigation prior to laying out and set 
up the festival to minimize damage done to the system” and states in 
detail other precautionary measures MIM must take to protect the 
Park. (ECF No. 33-10 at 12 and 23-24.)   
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exclusion 2.j.(1) “do[es] not apply to damages to premises while 
rented to you, or temporarily occupied by you with permission of 
the owner, caused by fire, lightning, explosion, smoke, aircraft 
or vehicles, riot or civil commotion, vandalism, leakage from 
fire extinguishing equipment or water damage.” (ECF No. 33-5 at 
59.) The “moral hazard” principle, that the exclusion must be 
read so as to “prevent the insured from using a liability 
insurance policy as if it provided property insurance”, does not 
clearly apply to the Policy at issue here, because the Policy 
does provide some level of property insurance.  
Because MIM did not “own, rent, or occupy” the Park, but 
had a license, in the language of the Park Agreement, to “use 
the Park for the Event[s],” (ECF No. 33-10 at 11.) the alleged 
damage to the Park is not excluded by exclusion 2.j.(1) of the 
Policy.   
 
3. Exclusion 2.a., of damages “expected or intended” 
The Policy includes a different exclusion that Arch argues 
applies to MRPP’s Park damages claims.  Section 2.a. excludes 
“property damage expected or intended from the standpoint of the 
insured.” (ECF No. 36 at ¶  16.) Arch argues, for many of the 
reasons considered above in the section analyzing the term 
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“occurrence,” that MIM “expected” the damages to the Park and 
that the exclusion therefore applies. (ECF No. 33-10 at 17-18.) 
“Expected or intended” clauses are common in insurance 
policies.  See generally 31 A.L.R.4th 957 (1984).  The Supreme 
Court of Tennessee has decided that, “in order to find that an 
intended or expected acts exclusion applies, it must be 
established that the insured intended the act and also intended 
or expected that injury would result.”  Tennessee Farmers Mut. 
Ins. Co. v. Evans, 814 S.W.2d 49, 55 (Tenn. 1991) (emphasis in 
original).  Whether the insured expected and intended the acts 
and consequences are “separate and distinct inquiries.”  Id.  The 
“purpose of such exclusionary language is to prohibit the use of 
insurance to provide indemnity for civil tort l iability that 
results from an insured's intentional wrongdoing.” Id. at 54.   
Arch makes no argument and identifies nothing in MRPP’s 
state court complaint alleging that MIM “intended” to damage the 
Park. (ECF No. 33-2 at 17-18.) Arch also makes no argument that 
MIM intentionally committed specific acts for which harm to the 
Park was reasonably foreseeable. (Id.) If Arch were to contend 
that the “act” was hosting the Events, the exclusion would be so 
broad so as to swallow much of the Policy.  It would be 
inconsistent with the general purpose established by the Supreme 
Court of Tennessee that such exclusions are to prevent liability 
resulting “from an insured’s intentional wrongdoing.”  Tennessee 
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Farmers Mut. Ins. Co., 814 S.W.2d at 54.  Insurance policy 
exclusions “must be construed against the insurance company and 
in favor of the insured.”  Martin, 505 S.W.3d at 517.  Tennessee 
Courts have typically held this exclusion to apply to instances 
of specific, intentional, harmful acts. See Tennessee Farmers 
Mut. Ins. Co., 814 S.W.2d at 56 (concluding that the exclusion 
applied because a woman intended to injure someone by burning 
money from a safety deposit box) and Metro. Prop. & Cas. Ins. 
Co. v. Buckner, 302 S.W.3d 288, 297 (Tenn. Ct. App. 2009) 
(applying the exclusion to acts by a pair of teenage brothers 
who fired BB guns at the interstate).  Exclusion 2.a. does not 
exclude the damage to the Park that MRPP alleges  in the state 
court case.13 
 
4. Vandalism 
Section K(1) in the “excess policy” portion of the Policy 
provides that the relevant exclusions, including exclusion 
2.j.(1) discussed above, “do not apply to damages to premises 
while rented to you, or temporarily occupied by you with 
 
13 Arch cites language from Tennessee Farmers Mut. Ins. Co. that 
“[i]t is immaterial that the actual harm was of a different 
character or magnitude or nature than that intended.” 814 S.W.2d at 
55.  This principle governing the kind of harm “expected or 
intended” from an action is limited to the analysis of “expected or 
intended” exclusions, and not a general statement of the definition 
of “expected” that would affect the analysis of “occurrence” above. 
Id.  
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permission of the owner, caused by…riot or civil commotion, [or] 
vandalism.” (ECF No. 33-5 at 59.) The parties appear to agree 
that, if the damage to the Park were the result of vandalism, 
this exception to the exclusions would apply and the Policy would 
cover the alleged damage to the Park, triggering the duty to 
defend. (Compare ECF no. 33-2 at 16-17 with ECF No. 35 at 18-
19.) 
A duty to defend arises solely from “the allegations 
contained in the underlying complaint.”  Travelers, 216 S.W.3d 
at 305.  “The pleading test for determination of the duty to 
defend is based exclusively on the facts as alleged rather than 
on the facts as they actually are.”  St. Paul, 879 S.W.2d at  
835.  Doubts about whether the claimant in the concurrent case 
has stated a cause of action that falls within the insurance 
policy’s coverage are “resolved in favor of the insured.”  
Travelers, 216 S.W.3d at 305. 
Section K(1) applies to premises “rented” to or “temporarily 
occupied” by the Plaintiff. (ECF No. 33-5 at 59.) The Court has 
concluded that, because MIM had a license to use the Park, it 
did not “rent” or “occupy” the Park in the sense of the “own, 
rent, or occupy” exclusion.  That analysis applies to the term 
“rent” here, but not necessarily to the term “temporarily 
occupy.”  Deciding whether MIM “temporarily occupied” the Park 
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at this stage, however, is unnecessary, because MRPP’s complaint 
does not allege facts that trigger the clause. 
MRPP’s complaint does not allege acts of civil commotion or 
vandalism that might have damaged the Park. (ECF No. 33-10 at 2-
10.) The complaint does not allege or describe how the damage 
occurred at all, beyond generally alleging that it occurred 
“from” the Events. (Id.) MRPP’s complaint is insufficient to 
trigger Arch’s duty to defend based on this exception to the 
exclusions.  Although it is possible that facts could emerge to 
make this clause relevant in the course of litigation in this 
case or in the state court case, the complaint does not allege  
sufficient facts here.  Therefore, this exception does not 
require Arch to defend in the state court case.
14 
Because MIM had a license to use the Park, the damage to 
the Park alleged by MRPP in the state court suit against MIM 
falls within the Policy, triggering Arch’s duty to defend.  The 
Court DENIES Arch’s motion for summary judgment on MIM’s breach 
of contract claim that Arch failed to fulfill its duty to defend. 
 
 
14 This conclusion does not mean the exception will be irrelevant 
when determining Arch’s duty to indemnify.  Facts may arise in the 
state case that may trigger this clause although those facts are not 
alleged in the complaint.  
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C. The Duty to Indemnify 
The duty to indemnify is distinct from the duty to defend. 
“The duty to defend is based on the facts alleged, while the 
duty to indemnify is based upon the facts found by the trier of 
fact.”  Travelers, 216 S.W.3d at 305.   
Arch argues that it is entitled to summary judgment on its 
duty to indemnify. (ECF No. 33-2 at 4-6.) Tennessee courts and 
courts applying Tennessee law typically refrain from deciding 
the duty to indemnify at the summary judgment stage, especially 
when the underlying case has yet to be resolved. See Marble 
Sols., 557 F. Supp. 3d at 859–60 (“Because the duty to indemnify 
turns on the facts as determined by a trier of fact, courts have 
held that this question is not amenable for determination at the 
summary judgment stage”, collecting cases); see also St. Paul, 
879 S.W.2d at 834 (holding that the duty to indemnify “issue is 
not appropriate for summary judgment”); Policeman's Ben. Ass'n 
of Nashville v. Nautilus Ins. Co., No. M2001-00611-COA-R3CV, 
2002 WL 126311, at *8 (Tenn. Ct. App. Feb. 1, 2002) (“[b]ecause 
an insured's duty to indemnify is dependent upon the outcome of 
a case, any declaration as to the duty to indemnify is premature 
unless there has been a resolution of the underlying claim” 
(internal citations omitted)).  MIM disputes facts that may or 
may not emerge in the state court case, such as the causes of 
the damage to the Park, which may affect this case. (ECF No. 35 
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at 19.) Summary judgment on this issue at this stage would be 
premature.  
The Court therefore DENIES Arch’s motion for summary 
judgment on MIM’s claim of breach of contract for violation of 
Arch’s duty to indemnify.  
 
D. Promissory Estoppel 
Arch also seeks summary judgment on MIM’s promissory 
estoppel claim. (ECF No. 33-2 at 19.) MIM alleges that Arch is 
promissorily estopped by representations of its agents that Arch 
or its representatives would provide a policy that would cover 
damage to the Park and delivered a policy that did not. (ECF No. 
1-3 at 13-14.)  
This claim depends on whether the Policy covers the damage 
to the Park that MRPP alleges.  The Court has concluded that the 
Policy includes a duty to defend MIM in the state court case.  
The Court has not determined whether the Policy includes a duty 
to indemnify in that case.  Therefore, it is unclear at this 
stage whether Arch has failed to fulfill its promise to deliver 
a policy that would cover the damage MRPP alleges, let alone 
whether Arch is estopped.  That precludes the Court at this stage 
from determining whether Arch is promissorily estopped by the 
representations of its representatives. 
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The Court DENIES Arch’s claim for summary judgment on MIM’s 
promissory estoppel claim.  
 
E. Statutory Bad Faith 
Arch argues for summary judgment on MIM’s statutory bad 
faith claim arising under Tenn. Code Ann. § 56-7-105. (ECF No. 
33-2 at 20-21.) Arch argues that § 56-7-105 does not apply to 
CGL policies, like the Policy in this case, (Id.), citing For 
Senior Help, LLC v. Westchester Fire Ins. Co., 515 F. Supp. 3d 
787, 800 (M.D. Tenn. 2021) and Tennessee Farmers Mut. Ins. Co. 
v. Cherry, 213 Tenn. 391, 394, 374 S.W.2d 371, 372 (1964).  MIM 
concedes that those authorities preclude a bad faith claim on 
the Policy at issue here. (ECF No. 35 at 22.)  
The Court GRANTS Arch’s motion for summary judgment on 
MIM’s statutory bad faith claim. 
 
V. Conclusion 
For the reasons above, the Court DENIES IN PART and GRANTS 
IN PART Defendant’s motion for summary judgment.  The Court 
DENIES Defendant’s motion for summary judgment on Plaintiff’s 
promissory estoppel claim and its breach of contract claims, 
including its duty to defend claim.  The Court GRANTS Defendant’s 
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motion for summary judgment on Plaintiff’s statutory bad faith 
claim.  
 
So ordered this 30th day of March, 2026. 
 
/s/ Samuel H. Mays, Jr. 
SAMUEL H. MAYS, JR.  
UNITED STATES DISTRICT JUDGE 
Case 2:24-cv-02327-SHM-tmp     Document 41     Filed 03/30/26     Page 38 of 38 
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