Great Am. Alliance Ins. Co. v. Windermere Baptist Conference Ctr., Inc., 2:16-cv-04046-NKL

• Decision Date: 23 October 2017
• Docket Number: No. 2:16-cv-04046-NKL,2:16-cv-04046-NKL
• Parties: GREAT AMERICAN ALLIANCE INSURANCE COMPANY, Plaintiff, v. WINDERMERE BAPTIST CONFERENCE CENTER, INC., et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

GREAT AMERICAN ALLIANCE INSURANCE COMPANY, Plaintiff,
v.
WINDERMERE BAPTIST CONFERENCE CENTER, INC., et al., Defendants.

No. 2:16-cv-04046-NKL

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

October 23, 2017

ORDER

In June 2014, Karlee Richards and her Searcy Baptist Church youth group were attending a summer camp at the Windermere Baptist Conference Center, which was sponsored by Lifeway Christian Resources of the Southern Baptist Conference, d.b.a. Student Life.¹ While at the camp, Karlee was injured after she fell while zip-lining at The Edge, a ropes course at Windermere's Conference Center. The Richards subsequently sued Windermere and Kendra Brown, who worked at the Edge at the time of the incident, for the injuries that Karlee sustained.

This declaratory judgment action filed by Great American against Defendants, Windermere, Brown, and the Richards, principally concerns whether a Great American insurance policy provides insurance coverage for Windermere's and Brown's potential liability in the pending state court action. Mr. Richards is Karlee's father and represents her in the state court action.

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The Great American Commercial General Liability policy in dispute is No. GLP 0-31-01-89-01, which was issued to Student Life by Great American. Windermere is an additional insured on that policy. The additional insured endorsement provides that Windermere is only covered for "liability arising out of the ownership, maintenance or use of that portion of the premises leased to [Student Life]" by Windermere. Doc. 35-17, p. 1 ("Endorsement"). Great American contends that Windermere is not entitled to coverage for Karlee's injuries because Windermere did not "lease" the Edge to Student Life because the Edge was not specifically mentioned in Student Life's written agreement with Windermere.

The Court previously denied Great American's motion for summary judgment on its duty to indemnify under the policy.² See Doc. 54. Defendants have now filed their own motions for summary judgment on the issue of indemnification. Docs. 56 and 58.³ The Court grants the Defendants' motions for summary judgment.

I. Undisputed Facts⁴

a. The Student Life Camp at Windermere

Windermere Baptist Conference Center is a large Conference Center on the Lake of the Ozarks with over 300 acres and 126 buildings, including group lodging, a dining hall, conference space, cabins, a chapel, and a gift shop. Windermere also offers various recreational facilities

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and activities at its campus, including the Edge. Organizations like Student Life use Windermere's facilities for summer church camps.

Student Life had been conducting church camps at Windermere for about ten years prior to its June 2014 camp. In January 2014, Student Life and Windermere executed an Amended Conference Contract. The "Amended Conference Contract" provides, in relevant part:

Amended Conference Contract. . .

EVENT INFORMATION
Event Name:	Student Life #1 '14 (June 2-6, 2014)
Expected #:	1000
Arrive Date:	Saturday, May 31, 2014; (Check in begins at 3:00 PM. Rooms may not be available until 6:00 PM. . . .)
Depart Date:	Saturday, June 7, 2014; Lodging Check out time is 11:00 AM. Keys must be turned in by this time. . . .)

LODGING INFORMATION
Lodging Type	Start	End	Nights	Units	Cost	Total	Minimum
Per Person (Student Life Extra)	5/31/14	6/2/14	2	25	$17.50	$825.00
Per Person (Student Life Extra)	6/1/14	6/2/14	1	15	$17.50	$262.50
Per Person (Student Life '14)	6/2/14	6/5/14	4	1,000	$70.00	$70,000
Total for Lodging:						$71,137.50	$56,910.00

You will need to provide Windermere a rooming list (names of individuals occupying each room) and a copy of your conference or retreat schedule at the time of check-in.
. . .

MEAL INFORMATION
. . .	Minimum
Total for Meals: $76,570.00	$61,733.00

. . .
All guests eating in the dining hall must have a meal ticket or wrist band to be admitted into the Dining Hall.
. . .

CONFERENCE SPACE INFORMATION
Facility/Room	Start	End	Cost
. . .
Wilderness Creek Auditorium (1500)	6/1/14 8:00am	6/6/14 12:00pm
. . .
Deer Ridge Conf Rm 1 (30)	6/2/14 3:00pm	6/6/14 12:00pm
. . .
Total for Conference Space:	$0.00

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Use of conference space and facilities begins at the start time stated in the contract. Conference or facility space usage time ends at the time stated in the contract and must be empty of all guests and guest items.
. . .
ENTITY OBLIGATION
Estimated Total Payment $147,707.50
Total Minimum Payment $118,643.00
. . .
Property Damage/Abuse
The above named group will have financial responsibility for any damages and excessive wear and tear it incurs to the Windermere grounds, facilities or property to the extent that such damage or excessive wear and tear arises from the negligence or willful misconduct of the above named group. Cleanup of any facilities or grounds that are excessively dirty will be the financial responsibility of the group.

Doc. 35-5 ("Amended Conference Contract").

The Amended Conference Contract does not identify every building or activity that was available to campers during Student Life's camp at Windermere. For example, the chapel, which is made available to any group attending a camp at Windermere, is not listed. In addition, the dining hall is not specifically listed under the "Conference Space Information" heading, despite the Amended Conference Contract listing a price for meals Windermere is to provide. See id.

In addition, it is undisputed that Windermere offered various recreational activities to its guest campers, including those who attended the Student Life camp. Windermere also offered some special recreational activities that required an additional fee and reservations. The Edge was one such activity. The Edge, a ropes and zip-lining course, is not accessible to campers at Windermere without special scheduling, the purchase of tickets, and the execution of a "Recreational Release" form.

In addition to the Amended Conference Contract, Student Life also completed a Facility Request Form, and Windermere completed a Fax Back Response Sheet. Docs. 40-3 and 40-4. The Fax Back Response Sheet provides, in relevant part:

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Student Life Camp Windermere Conference Center Recreation:
. . .
What are some free-time options on your campus?

• Sand Volleyball, Outdoor Basketball, Tennis, Mini Golf, Disc Golf, Pool, Hiking, The Edge (low/high ropes course), Paintball, Waterfront Activities (Inflatable water park, kayak, canoe, paddle boats, fishing, etc) (See attached PDF on available Recreation Packages).

Doc. 40-4, p. 3.

b. Great American Insurance Policy

Student Life is the named insured on a Commercial General Liability policy with Great American. Windermere is listed as an Additional Insured as follows:

5. AUTOMATIC ADDITIONAL INSURED(S)

a. Additional Insured - Manager or Lessor of Premises

(1) This policy is amended to include as an insured any person or organization (hereinafter called Additional Insured) from whom you lease or rent property and which requires you to add such person or organization as an Additional Insured

***

(2) With respect to the insurance afforded the Additional Insured identified in Paragraph A.(1) of this endorsement, the following additional provisions apply:

(a) This insurance applies only to liability arising out of the ownership, maintenance or use of that portion of the premises leased to [Student Life].

Doc. 35-17, p. 1 ("Endorsement").⁵

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c. The Underlying Lawsuit

The Searcy Baptist Church youth group was one of the groups of campers that attended Student Life's camp at Windermere in June of 2014. Karlee and the rest of the Searcy youth group were scheduled to ride The Edge on June 4, 2014. They paid Windermere an additional fee for this activity. While zip-lining at The Edge, Karlee fell and was injured.

Following Karlee's accident at The Edge, her father, Jeremy Richards, both individually and as Next Friend, brought suit against Windermere. A lawsuit is currently pending in Jasper County Circuit Court which seeks damages for Karlee's physical injuries sustained at The Edge.

On November 17, 2015, Windermere and Kendra Brown tendered claims to Great American for defense and indemnity of the underlying lawsuit, seeking coverage as additional insureds under Student Life's Great American policy. In its February 4, 2016 denial letter to Windermere, Great American concluded that Karlee's accident did not arise out of the ownership, maintenance, or use of the premises Windermere leased to Student Life and denied Windermere's tender.

II. Discussion

Great American's complaint asks for a declaratory judgment that Great American owes no duty to indemnify Windermere for any liability on the claims in the underlying state court action. As previously discussed, the Court has denied Great American's motion for summary judgment on that claim. Defendants now move for summary judgment on that claim, arguing that Great American cannot succeed on it as a matter of law.

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A movant is entitled to 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 rule requires summary judgment to be entered "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, 322 (1986).

A federal court sitting in diversity applies the choice-of-law rules of the state where the court sits, in this case, Missouri. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941); American Guarantee Liability Ins. Co. v. U.S. Fidelity & Guaranty Co., 668 F.3d 991, 996 (8th Cir. 2012). A court need not undertake a choice-of-law inquiry unless an...