Adams v. Certain Underwriters At Lloyd's of London

• Decision Date: 16 July 2019
• Docket Number: No. ED 106121,ED 106121
• Citation: 589 S.W.3d 15
• Parties: Latronya ADAMS, Appellant/Cross-Respondent, v. CERTAIN UNDERWRITERS AT LLOYD’S OF LONDON, Subscribing to Certificate No. LCL 004029, Respondent/Cross-Appellant, Plaza Banquet Center, Inc. d/b/a Lights on Broadway Plaza Grill and Eric Galloway, Appellants, and P & B Real Estate, LLC and Hartford Fire Insurance Company, Respondents.
• Court: Missouri Court of Appeals

589 S.W.3d 15

Latronya ADAMS, Appellant/Cross-Respondent,

v. CERTAIN UNDERWRITERS AT LLOYD’S OF LONDON, Subscribing to Certificate No. LCL 004029, Respondent/Cross-Appellant,Plaza Banquet Center, Inc. d/b/a Lights on Broadway Plaza Grill and Eric Galloway, Appellants,andP & B Real Estate, LLC and Hartford Fire Insurance Company, Respondents.

No. ED 106121

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: July 16, 2019 Motion for Rehearing and/or Transfer to Supreme Court Denied August 19, 2019

Michael A. Gross, Joseph F. Yeckel, 231 S. Bemiston, Suite 250, St. Louis, MO 63105, James D. O'Leary, Co-Counsel, 1034 S. Brentwood Blvd., St. Louis, MO 63117, Matthew P. O’Grady, Co-Counsel, 110 E. Lockwood, St. Louis, MO 63119, For Appellant/Cross-Respondent Latronya Davis.

Seth G. Gausnell, Robyn G. Fox, 100 S. Fourth Street, Suite 400, St. Louis, MO 63102, Pamela J. Meanes, Co-Counsel, One U.S. Bank Plaza, St. Louis, MO 63101, For Respondent/Cross-Appellant Certain Underwriters.

Daniel R. Brown, 715 NW Plaza Drive, St. Ann, MO 63074, Michael A. Lawder, Co-Counsel, 1010 Market Street, Suite 1540, St. Louis, MO 63101, For Appellants Plaza Banquet Center and Eric Galloway.

Scott C. Harper, Gary P. Paul, Aaron I. Mandel, 34 North Meramec Avenue, 5^th Floor, Clayton, MO 63105, For Respondents P & B Real Estate and Hartford Fire Insurance Company.

SHERRI B. SULLIVAN, P.J.

Introduction

This appeal is a garnishment action brought by appellant Latronya Adams (Adams) against Certain Underwriters at Lloyd’s of London (Underwriters), who issued a general commercial insurance policy (Policy) to Plaza Banquet Centers, Inc. d/b/a Lights on Broadway Plaza Grill (Lights on Broadway), an administratively dissolved Missouri corporation. Adams brought a negligence suit against Lights on Broadway and Eric Galloway (Galloway) for allegedly causing the death of Orlando Willis (Willis), Adams’s son, who was shot outside of a nightclub while assisting Galloway with throwing a party. After Adams and Galloway entered into an agreement under Section 537.065¹ , judgment was entered against Galloway and Lights on Broadway in the amount of $5,000,000. Subsequently, Adams brought a garnishment claim against Underwriters, Lights on Broadway’s insurer, seeking to collect on the judgment from the underlying tort case. After lengthy litigation and a bench trial, the garnishment court entered its judgment on the various claims and cross-claims of the parties. All parties now appeal from the rulings of the garnishment court.

STATEMENT OF FACTS

On December 25, 2010, 16-year-old Willis and his friend Marquise Davenport (Davenport) were helping Galloway set up a party at Pulse Night Club. Pulse Night Club was located in a small strip mall with two other businesses, a flea market and a banquet hall. All three of the businesses were owned or operated by Galloway.

The party had been advertised on Facebook and by word of mouth as a place where young people were welcome. However, soon after their arrival, Willis and Davenport were told the venue would not allow people under 18 years old. They and a large group of other children and young adults were told to wait outside. As they waited, the large crowd began to grow restless, and arguments broke out. Davenport testified later the arguments escalated, and one or more individuals in the crowd began firing guns. Davenport observed at least one individual hanging out of the window of a moving car, firing shots into the crowd. He recalled hearing more than one gun being fired. As shots rang out, the crowd began to panic. Some party-goers attempted to enter Pulse Night Club to escape the shooting. But as they tried to open the doors, the panicked party-goers discovered the doors had been locked. Locked out of the venue without cover, Davenport was shot in his wrist; Willis was shot in the face. Davenport witnessed Willis slump to the ground, grievously injured. Willis died of his injuries several days later.

Adams, Willis’s mother, filed suit against Galloway, his related businesses, and the property owners, seeking damages for the wrongful death of her son. The petition commencing the action went through several iterations; the fourth and final petition on which she proceeded alleged negligence on the part of Galloway and Lights on Broadway, which caused the shooting death of her son.² Specifically, the Fourth Amended Petition (Petition) alleged Galloway, Lights on Broadway and the related business entities responsible for throwing the December 25, 2010 party were negligent in that they had a duty to provide security for the party and failed to do so in a reasonable manner. The Petition noted Galloway and related parties were aware of the need for security and had agreed to it in advance. However, security personnel were not scheduled to arrive until 11:00 p.m. that evening, while the doors were to open to admit guests at 10:00 p.m. Willis and other individuals who helped set up for the party were allowed onto the premises even earlier. The Petition alleged there had recently been numerous violent crimes in the area, which would have put a reasonable person on notice of a need to provide security for the party before 11:00 p.m. As a result of the negligent failure to provide security, an argument outside of the nightclub escalated into gunfire. Although Willis was not involved in the argument, or an intended victim of the shooting, he was inadvertently struck by a stray bullet fired recklessly by an unknown individual. The Petition also alleged Galloway and Lights on Broadway were responsible for negligently locking Pulse Night Club’s doors after the gunfire began, which left individuals outside, including Willis, unable to escape the gunfire.

At the time of the shooting, Lights on Broadway was insured under the Policy issued by Underwriters. After the filing of Adams’s suit, Galloway informed Underwriters of the claim and demanded they defend him. Based on the allegations in Adams’s Third Amended Petition, Underwriters refused, stating they believed the claim was not covered under the Policy. Specifically, Underwriters believed the claim was excluded by the "assault and battery exclusion" (Assault and Battery Exclusion) in Lights on Broadway’s policy. This exclusion reads:

2. EXCLUSION – EXPECTED OR INTENDED INJURY AND ASSAULT OR BATTERY

Exclusion a. of Coverage A (Section I) is deleted and replaced with the following: "Bodily injury" or "property damage":

(1) expected or intended from the standpoint of any insured

(2) arising out of assault or battery, or out of any act or omission in connection with assault or battery, or with the prevention or suppression of an assault or battery; or

(3) arising out of charges or allegations of negligent hiring, training, placement, or supervision with respect to (1) or (2) above.

Underwriters was later provided with the fourth and final Petition, which clarified the negligence suit arose from Willis being an unintended victim of the shooting, and not involved in the argument that led up to it. Adams contacted Underwriters, demanding they settle the negligence claim for the policy limit of $1,000,000. Underwriters refused, still basing their denial of coverage on the Assault and Battery Exclusion. In a denial letter received by Galloway and Adams, Underwriters stated it also reserved "any and all claims, rights, and defenses they may discover in connection with any additional information provided in this matter."

Believing Underwriters' conclusion that the Assault and Battery Exclusion applied to the claim was incorrect, Galloway and Adams entered into an agreement pursuant to Section 537.065, whereby Adams agreed to limit any attempt to collect from a potential judgment against Galloway and Lights on Broadway to payments due under the Policy. In return, Galloway and Lights on Broadway agreed to cooperate with Adams in her pursuit of a claim against Underwriters, and to forfeit any right to appeal a judgment against them in the negligence case.

In the meantime, Underwriters filed an action for declaratory relief in federal court to determine their obligations under the Policy with respect to Adams’s claim. This action was stayed before its resolution.

The state court negligence trial consisted of expert testimony offered by Adams, as well as affidavits from Galloway and Davenport. Adams’s expert witness was Colonel Hugh Mills, Jr., the undersheriff of Jackson County, Missouri (Col. Mills). Col. Mills testified about his extensive experience organizing security for various venues, including hip hop parties/shows like the one at which Willis was shot. He testified about the standard operating procedure he would have followed, including taking stock of the crime statistics of the surrounding area. He noted his own investigation had revealed the area around Pulse Night Club had had numerous dangerous criminal attacks, including assaults and other crimes against persons. Given this knowledge, Col. Mills testified to what level of security and other precautions should have been provided in order to ensure the party’s participants' safety.

In short, in Col. Mills’s expert opinion, the safety and security measures provided by Galloway and Lights on Broadway fell well below the standard of care that would have been reasonable. Col. Mills also opined the act of locking the doors of the club once the shooting began exposed the party-goers to further risk of injury, and may have constituted a violation of the fire code.

The testimony of Galloway was presented to the court via affidavit. Galloway stated Lights on Broadway was co-promoting and co-sponsoring the party at Pulse Night Club that evening; that the guests were parking in the lot shared by the businesses at that location; that he was on the premises in the course of his management duties for Lights on Broadway; and that he had entered the address which housed Lights on Broadway to retrieve supplies and equipment and to organize...