Geovera Specialty Ins. Co. v. Hutchins
| Decision Date | 21 December 2011 |
| Docket Number | Case No. 8:09–CV–1973–T–17EAJ. |
| Citation | 831 F.Supp.2d 1306 |
| Court | U.S. District Court — Middle District of Florida |
| Parties | GEOVERA SPECIALTY INSURANCE COMPANY f/k/a USF & G Specialty Insurance Corporation, a foreign corporation, Plaintiff, v. Christopher X. HUTCHINS, individually, Anthony Fraccalvieri and Zulema Rodriguez, individually, and as the Co–Personal Representatives of the Estate of Jessica Leigh Fraccalvieri, deceased, Defendants. |
OPINION TEXT STARTS HERE
Andrew Edward Grigsby, John J. Cavo, Hinshaw & Culbertson, Miami, FL, for Plaintiff.
Lee Delton Gunn, IV, Laura K. Whitmore, Gunn Law Group, PA, Tampa, FL, Gene Odom, Martinez Odom Law Group, Brandon, FL, for Defendants.
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
THIS CAUSE is before this Court on:
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¦Dkt. 36 ¦Amended Complaint ¦
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¦Dkt. 37 ¦Defendants' Answer and Counterclaim ¦
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¦Dkt. 45 ¦Plaintiff's Response to Counterclaim ¦
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¦Dkt. 32 ¦Defendants' Motion for Summary Judgment ¦
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¦Dkt. 35 ¦Plaintiff's Amended Motion for Summary Judgment ¦
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¦Dkt. 41 ¦Defendants' Response to Amended Summary Judgment Motion¦
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¦Dkt. 44 ¦Plaintiff's Response to Summary Judgment Motion ¦
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¦Dkt. 48 ¦Notice of Filing Final Judgment ¦
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¦Dkt. 49 ¦Deposition ¦
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¦Dkt. 52 ¦Notice of Supplemental Authority ¦
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¦Dkt. 61 ¦Motion to Adopt Pleadings ¦
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¦Dkt. 62 ¦Order ¦
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In the Amended Complaint (Dkt. 36), Plaintiff GEOVERA SPECIALTY INSURANCE COMPANY f/k/a USF & G SPECIALTY INSURANCE CORPORATION(“Plaintiff”) seeks a declaratory judgment on three counts. Count I seeks a declaratory judgment that Plaintiff has no duty to defend or indemnify based on the allegations of the Complaint; Count II seeks a declaratory judgment that Plaintiff has no duty to indemnify based on actual facts; and Count III seeks a declaratory judgment that there is no coverage for punitive damages awarded in an underlying state action (“Underlying Action”).1 Defendants, ANTHONY FRACCALVIERI and ZULEMA RODRIGUEZ (“Defendants”), assert a counterclaim for a declaratory judgment that Plaintiff has a duty to provide coverage, a duty to defend, and a duty to indemnify.
Defendant Hutchins filed a Chapter 7 Petition in U.S. Bankruptcy Court on August 19, 2011. The Trustee of Defendant's Bankruptcy Estate, Christine Herendeen, has adopted the Motion for Summary Judgment (Dkt. 32) and the Response in Opposition to Plaintiff's Amended Motion for Summary Judgment (Dkt. 41).
Plaintiff defended its insured under a reservation of rights in Case No. 51–2007–CA–002301–AWS, filed in Pasco County Circuit Court. The trial in the Underlying Action was held in April of 2010. On or about April 15, 2010, a jury returned a verdict in favor of FRACCALVIERI and RODRIGUEZ. The jury awarded damages as follows: $2,000,000.00 for A.F., Jessica Leigh Fraccalvieri's (“Decedent”) minor child, $1,000,000.00 for Theresa Caperna, Decedent's mother, $1,025,000.00 for Anthony Fraccalvieri, Decedent's father, and $500,000.00 in punitive damages assessed against CHRISTOPHER X. HUTCHINS. (Dkt. 32–7).
Both Plaintiff and Defendants have filed a motion for summary judgment. Having considered the parties' submissions and pertinent law, the Court grants Plaintiff's Motion for Summary Judgment and denies Defendants' Motion for Summary Judgment.
On 9/27/2010, Plaintiff requested leave to file an Amended Complaint, and attached a proposed amended complaint (Dkt. 27). The Court granted the Motion (Dkt. 28). The Amended Complaint was filed on 10/5/2010 (Dkt. 36). Defendants' Motion for Summary Judgment is directed to the Amended Complaint, although the Amended Complaint was not filed until after Defendants' Motion was filed. Plaintiff filed an Amended Motion for Summary Judgment (Dkt. 35) which is directed to the Amended Complaint.
Summary judgment should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
The plain language of Rule 56(c) mandates the entry of summary judgment after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The appropriate substantive law will guide the determination of which facts are material and which facts are ... irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. But, “[i]f the evidence is merely colorable ... or is not significantly probative ... summary judgment may be granted.” Id. at 249–50, 106 S.Ct. 2505.
1. Plaintiff insured Lizzie Myrick with homeowner's policy No. GH20028088 (“the Policy”) with an effective date of August 26, 2005, to August 26, 2006. (Dkt. 35–1). Lizzie Myrick is the grandmother of Christopher X. Hutchins (“Hutchins”). (Dkt. 32–2 p. 6:11–16).
2. On February 1, 2006, and continuing into to early morning hours of February 2, 2006, Hutchins shot Decedent Jessica Leigh Fraccalvieri (“JLF”) in the neck, resulting in Decedent's death. (Dkt. 32–1 p. 1; Dkt. 32–2 p. 17:12, p. 18:17–18; p. 25:10–14).
3. At the time of the shooting, Hutchins was living with the insured, his grandmother, Ms. Myrick. (Dkt. 32–2 p. 6:11–16). Neither party contests that Hutchins is an insured.
4. The following provisions of the Policy at issue are relevant(Dkt. 35–1):
SECTION II—LIABILITY COVERAGES
A. Coverage E—Personal Liability
If a claim is made or a suit is brought against an “insured” for damages because of “bodily injury” or “property damage” caused by an “occurrence” to which this coverage applies, we will:
1. Pay up to our limit of liability for the damages for which an “insured” is legally liable. Damages include prejudgment interest awarded against an “insured”; and
2. Provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent. We may investigate and settle any claim or suit that we decide is appropriate. Our duty to settle or defend ends when our limit of liability for the “occurrence” has been exhausted by payment of a judgment or settlement.
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THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY.
USF & G SPECIALTY INSURANCE COMPANY SPECIAL PROVISIONS
The definition of “occurrence” is replaced by the following:
8. “Occurrence” means an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in:
a. “Bodily injury”; or
b. “Property damage”.
Assault and battery is not an “occurrence”, whether or not committed by or at the direction of an “insured”.
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The following exclusions are added to E. Coverage E.—Personal Liability AND Coverage F—Medical Payments To Others:
Assault or Battery
“Bodily injury” or “property damage” arising out of assault or battery, whether or not committed by or at the direction of an “insured”.
Punitive or exemplary damages, or any costs or interest attributable to such damages.
5. On the night of the shooting, Hutchins and Decedent were inside ‘Calendar Girls' and interacting in a friendly manner. (Dkt. 32–3 pp. 18–20).
6. As the group of friends left ‘Calendar Girls', including Decedent and Hutchins, Hutchins retrieved a recently purchased handgun to ‘show off’ to Decedent. (Dkt. 32–2 pp. 13, 18–20).
7. Hutchins was a first-time gun owner. ( Id. pp. 13–14). At the time Hutchins retrieved the gun, Hutchins thought it was possible that there was a bullet in the clip, but he was unsure whether there was a bullet in the chamber. ( Id. p. 22:14–19).
8. Hutchins then approached Decedent while Decedent was sitting in the driver's side seat of a vehicle with the window halfway down. ( Id. p. 20:22–21:5; p. 23:5–10; p. 24:13–16).
9. Hutchins proceeded to ‘show off’ the gun to Decedent by facing the gun towards Decedent so she would acknowledge it. ( Id. p. 21:16–19).
10. Decedent's roommate, Jennifer Clarke, was sitting in the passenger front side seat of the vehicle in which Decedent was also seated. (Dkt. 32–3 pp. 22:23–23:4).
11. Clarke recalls Decedent had the vehicle in...
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