368 F.3d 409 (4th Cir. 2004), 03-1137, Penn-America Ins. Co. v. Coffey

Docket Nº:03-1137.
Citation:368 F.3d 409
Party Name:PENN-AMERICA INSURANCE COMPANY, Plaintiff-Appellant, v. Gregory COFFEY; Steven Simons; A.J.Z., Incorporated, t/a A.J. Gators Grille & Sports Bar; State Farm Mutual Automobile Insurance Company; James A. Sizemore, Defendants-Appellees.
Case Date:May 20, 2004
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 409

368 F.3d 409 (4th Cir. 2004)

PENN-AMERICA INSURANCE COMPANY, Plaintiff-Appellant,

v.

Gregory COFFEY; Steven Simons; A.J.Z., Incorporated, t/a A.J. Gators Grille & Sports Bar; State Farm Mutual Automobile Insurance Company; James A. Sizemore, Defendants-Appellees.

No. 03-1137.

United States Court of Appeals, Fourth Circuit

May 20, 2004

Argued: Feb. 26, 2004.

Page 410

ARGUED:

Geoffrey Martin Bohn, Cunningham & Associates, Arlington, Virginia, for Appellant.

Richard Cunningham, Appellate Litigation Clinic, Georgetown University Law Center, Washington, D.C., for Appellees.

ON BRIEF:

Steven H. Goldblatt, Director, Cary Berkeley Kaye, Supervising Attorney, James M. Sullivan, Appellate Litigation Clinic, Georgetown University Law Center, Washington, D.C., for Appellees.

Before NIEMEYER and MICHAEL, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Reversed and remanded by published opinion. Judge NIEMEYER wrote the opinion, in which Judge MICHEAL and Senior Judge HAMILTON joined.

Page 411

NIEMEYER, Circuit Judge:

Penn-America Insurance Company commenced this action to obtain a declaratory judgment that it had no duty to defend or to indemnify its insured, A.J. Gators Grille & Sports Bar ("A.J. Gators"), with respect to a tort action filed against A.J. Gators by James Sizemore in the Circuit Court of the City of Chesapeake, Virginia. Sizemore's suit seeks damages for injuries he sustained in the A.J. Gators parking lot when he was struck by an automobile driven by another customer of A.J. Gators. The district court dismissed the declaratory judgment action, concluding that exercising jurisdiction would require resolution in this case of the same factual issues in dispute in the state tort action. For the reasons that follow, we disagree. Accordingly, we reverse the district court's dismissal order and remand for further proceedings.

I

On April 5, 2001, while patronizing A.J. Gators in Chesapeake, Virginia, Gregory Coffey and Steven Simons became aggressive and hostile toward other customers and toward A.J. Gators employees. When several employees confronted Coffey and Simons, "insults, threats and blows were exchanged," and Coffey and Simons either left or were removed from the premises. The A.J. Gators employees pursued Coffey and Simons into the parking lot where "a protracted and violent fight erupted" between Coffey and Simons and the employees. As Coffey and Simons drove away in Coffey's automobile, the A.J. Gators employees struck both the automobile and the occupants "with fists and metal pipes," leading Coffey to lose control of his vehicle and strike James Sizemore, a bystander in the parking lot who had just left the bar.

Sizemore filed a personal injury action in state court against Coffey and Simons, as well as A.J.Z., Inc. ("A.J.Z."), the owner of A.J. Gators, alleging (1) negligence by A.J. Gators and its employees; (2) negligence by Coffey and Simons; (3) intentional, malicious, and reckless action by A.J. Gators supervisors who directed employees to pursue and assault Coffey and Simons despite knowing patrons would likely be injured; and (4) intentional, malicious, and reckless action by, and agreement between, Coffey and Simons to use a vehicle to strike one or more A.J. Gators employees, for whom they mistook Sizemore. That action is still pending.

Shortly after the state court action was commenced, Penn-America, A.J.Z.'s insurer, commenced this action, invoking diversity jurisdiction under 28 U.S.C. § 1332 and seeking a declaratory judgment that the claims filed by Sizemore against A.J.Z. in state court were excluded from the coverage of the Penn-America liability policy issued to A.J.Z. because of an "Assault and Battery Exclusion." In particular, the policy excludes from coverage claims "resulting from assault and battery...

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