Archie v. Acceptance Indem. Ins. Co.
| Decision Date | 14 May 2012 |
| Docket Number | CIVIL ACTION NO. 4:10CV0063-B-V |
| Parties | CHRISTOPHER MICHAEL ARCHIE PLAINTIFF v. ACCEPTANCE INDEMNITY INSURANCE COMPANY DEFENDANT |
| Court | U.S. District Court — Northern District of Mississippi |
This cause comes before the court upon the defendant's motion for summary judgment. Upon due consideration of the motion, response, exhibits, and supporting and opposing authority, the court is ready to rule.
This declaratory action arises from an incident which occurred on January 29, 2003, at "Club Focus," a night club in Itta Bena, Mississippi, owned by Rosie Meeks Brown. When a patron of the night club, Alonzo Hemphill, fired a gun into the crowd, the security guard on duty, Johnny King d/b/a King Security, returned fire, fatally injuring Hemphill but also severely injuring the plaintiff, Christopher Michael Archie, who was rendered a paraplegic by the gunshot he suffered.
Archie sued Brown and King in the Circuit Court of Leflore County, Mississippi, in 2004 but did not name as a defendant Brown's insurance carrier, the defendant in this case, Acceptance Indemnity Insurance Company ("Acceptance"). Acceptance ultimately denied coverage based on an assault and battery/bodily harm exclusion in the insurance contract, and Archie moved the state court for leave to amend his complaint to add Acceptance as a defendant. Archie did not pursue the motion to amend and instead took a default judgment against Brownand King. After a trial to determine damages, the state court entered a jury verdict and final judgment in the amount of $12,000,000.00 and $2.00 for punitive damages on March 11, 2010.
Archie filed the present declaratory action in Leflore County Circuit Court on April 13, 2010. Acceptance timely removed to this court on May 12, 2010, and the plaintiff moved to remand on abstention grounds. The court denied the motion to remand and now examines the defendant's summary judgment motion.
A party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). On a motion for summary judgment, the movant has the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the movant makes such a showing, the burden then shifts to the non-movant to "go beyond the pleadings and by . . . affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting Fed. R. Civ. P. 56(c), (e)). Before finding that no genuine issue for trial exists, the court must first be satisfied that no rational trier of fact could find for the non-movant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Id. at 586. "Unsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment."Brown v. City of Houston, Tex., 337 F.3d 539, 541 (5th Cir. 2003). Further, self-serving "affidavit or deposition testimony setting forth ultimate or conclusory facts and conclusions of law are insufficient to defeat a motion for summary judgment." Clark v. America's Favorite Chicken Co., 110 F.3d 295, 297 (5th Cir. 1997).
The court must render summary judgment in favor of the moving party if "there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 135 (2000). The Supreme Court has cautioned, however, that the ruling court must not encroach upon the functions of the jury. The Court stated in Reeves as follows:
[T]he court must review all of the evidence in the record, drawing all reasonable inferences in favor of the nonmoving party, but making no credibility determinations or weighing any evidence. The latter functions, along with the drawing of legitimate inferences from the facts, are for the jury, not the court. Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe.
Id. (citations omitted). "Summary judgment, although a useful device, must be employed cautiously because it is a final adjudication on the merits." Jackson v. Cain, 864 F.2d 1235, 1241 (5th Cir. 1989).
The assault and battery exclusion in the insurance contract at issue here provides as follows:
The plaintiff argues that the assault and battery exclusion is inapplicable because the plaintiff's injuries were proximately caused by "reckless disregard" and not assault and battery; that the policy is ambiguous and must therefore be construed against the defendant; and that the plaintiff's underlying complaint alleges claims of premises liability and negligent hiring, which are not excluded by the policy.
"[A]ssault is committed where a person (1) acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such contact, and (2) the other is thereby put in such imminent apprehension." Coleman v. Acceptance Indemnity Ins. Co., 2009 WL 1873742, at *4 (S.D. Miss. 2009), aff'd 2010 WL 924889 (5th Cir. 2010). "A 'battery' goes beyond 'assault,' and in addition to the requirement [of] the element of intent, there is also the requirement that a harmful contact actually occur." Id.
In the case sub judice, Archie alleges that Hemphill fired into the crowd, and King "was returning fire from Hemphill" when a bullet, apparently from King's gun, struck Archie. In accordance with the definition above, two assaults occurred, as Hemphill intentionally shot multiple times inside a crowded night club, and King intentionally returned fire, killing Hemphill and injuring the plaintiff. Whether Hemphill fired directly at an individual or randomly into the crowd, as the plaintiff asserts, it would appear he intended to cause "imminent apprehension" ofharmful contact to another person or persons. Even if Hemphill only intended to frighten other patrons without shooting directly at anyone in particular, the intent and "imminent apprehension" elements would be met, and thus the definition for assault would be satisfied. The court finds these elements present as to Hemphill's shooting; but even assuming arguendo that Hemphill's actions arise only to the level of reckless disregard, as urged by the plaintiff, the court must likewise consider King's shooting, which was to "return[] fire from Hemphill." It is uncontested that King intended to return fire and that he did not do so accidentally. In returning fire, at the very least he intended to cause imminent apprehension of harmful contact to Hemphill. There could be no other reason for returning fire; no other reason has been offered; and no reasonable juror could find otherwise. Ultimately, King did cause harmful contact to Hemphill and therefore committed assault and battery.
Because of the broad "arising out of language in the assault and battery exclusion, there is no requirement that the plaintiff be the intended victim of the assault and/or battery. "The Fifth Circuit has held that the words 'arising out of,' when used within an insurance policy, are 'broad, general, and comprehensive terms effecting broad coverage.'" Coleman, 2009 WL 1873742, at * 4 (quoting Red Ball Motor Freight, Inc. v. Employers Mut. Liab. Ins. Co., 189 F.2d 374, 378 (5th Cir. 1951)). "A claim need only bear an incidental relationship to the described conduct for the exclusion to apply." Id. (quoting Scottsdale Ins. Co. v. Texas Security Concepts and Investigation, 173 F.3d 941 (5th Cir. 1999)). Further, the Fifth Circuit has rejected the "innocent bystander" argument in a factually similar context to that of the case at bar. In Coleman v. Acceptance Indemnity Ins. Co., 369 Fed. Appx. 595 (5th Cir. 2010), the Fifth Circuit affirmed the district court's ruling granting summary judgment in favor of the defendant insurer.The United States District Court for the Southern District of Mississippi, applying Mississippi law, had found that the assault and battery exclusion in the insurance policy at issue there resulted in no coverage for a premises owner's liability arising out of a gun fight in a Yazoo City, Mississippi night club. Coleman, 2009 WL 1873742, at *5. In affirming the...
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