Jackson v. McKay-Davis Funeral Home, Inc.

• Decision Date: 03 June 2010
• Docket Number: Case No. 07-C-1037
• Citation: 717 F.Supp.2d 809
• Parties: Marlenea JACKSON and Erica Jackson (a minor), Plaintiffs, v. McKAY-DAVIS FUNERAL HOME, INC., Oklahoma Wilbert Vaults, DHL Express (USA), Inc., Travelers Insurance Company, Hartford Casualty Ins. Co., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

717 F.Supp.2d 809

Marlenea JACKSON and Erica Jackson (a minor), Plaintiffs,

v.McKAY-DAVIS FUNERAL HOME, INC., Oklahoma Wilbert Vaults, DHL Express (USA), Inc., Travelers Insurance Company, Hartford Casualty Ins. Co., Defendants.

Case No. 07-C-1037.

United States District Court, E.D. Wisconsin.

June 3, 2010.

Ian T. Matyjewicz, James J. Gende, II, Matthew S. Mayer, Nicole L. Kreklau, Mallery & Zimmerman SC, Wausau, WI, for Plaintiffs.

Jeffrey T. Nichols, Remzy D. Bitar, Crivello Carlson SC, Christopher P. Riordan, Von Briesen & Roper SC, Daniel E. Goldberg, Law Offices of Daniel E. Goldberg, Milwaukee, WI, Robert J. Taitz, Shane & Taitz, Greenbrae, CA, Daniel A. Haws, Kari L. Gunderman, Murnane Brandt, St. Paul, MN, for Defendants.

Christopher P. Katers, Gende Law Offices SC, Pewaukee, WI.

DECISION AND ORDER

PATRICIA J. GORENCE, United States Magistrate Judge.

NATURE OF CASE

On November 21, 2007, the plaintiffs, Marlenea Jackson and her minor daughter Erica Jackson, filed this action against DHL Air Express, S.A. (DHL), McKay-Davis Funeral Home Inc. (McKay-Davis), Suhor Industries, Inc. (Suhor), and Oklahoma Wilbert Vaults (Wilbert Vaults). The plaintiffs allege causes of action for breach of fiduciary duty, negligent handling of remains, and negligent infliction of emotional distress stemming from the loss of the cremated remains of Eric Jackson, Marlenea's husband and Erica's father. On May 23, 2008, the plaintiffs filed an amended complaint adding Travelers Insurance Company (Travelers) and Hartford Casualty Insurance Co. (Hartford) as defendants. By stipulation, Suhor and Wilbert Vaults and Hartford Casualty Insurance Company have been dismissed from this action.

The court has jurisdiction over this action pursuant to 28 U.S.C. § 1332 because of diversity of citizenship and because the amount in controversy alleged exceeds$75,000. Venue is proper under 28 U.S.C. § 1391. The case was assigned according to the random assignment of civil cases pursuant to 28 U.S.C. § 636(b)(1)(B) and General Local Rule 72 (E. D.Wis.). The parties have consented to United States magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) and General Local Rule 73 (E. D.Wis.).

On March 6, 2009, defendant Travelers filed a motion for declaratory judgment pursuant to Fed.R.Civ.P. 57 and partial summary judgment pursuant to Fed.R.Civ.P. 56. Specifically, defendant Travelers seeks a declaration that it has no duty to defend or indemnify defendant McKay-Davis. Defendant McKay-Davis and the plaintiffs filed briefs in opposition to defendant Travelers motion. Additionally, defendant Travelers filed proposed findings of fact, defendant McKay-Davis filed a response to defendant Traveler's proposed findings of fact and filed its own proposed findings of fact. The plaintiffs also filed a response to defendant Traveler's proposed findings of fact. This motion is fully briefed and will be addressed herein.

At the outset, the court notes that the parties disagree as to what evidence the court can consider in deciding defendant Travelers' motion. Defendant McKay-Davis asserts that the court is permitted to consider only the contents of the amended complaint and the insurance policy at issue in determining whether defendant Travelers has a duty to defend. Thus, defendant McKay-Davis asserts that defendant Travelers' citation to requests for admissions in its proposed findings of fact is not permitted.

In response, defendant Travelers asserts that it is moving for both declaratory and summary judgment and the court may consider different evidence in ruling on the two different motions. Defendant Travelers also asserts that "the Court can review the evidence in the entire record to determine there has been on 'occurrence' which is necessary to trigger coverage under Travelers' policy in the first instance. If there is no coverage, there is no duty to defend." (Defendant Travelers Insurance Company's Memorandum of Law in Support of Motion for Declaratory Judgment / Partial Summary Judgment [Defendant Travelers' Brief] at 12).

The parties do not expressly discuss the appropriate law to apply to the claims alleged in the complaint. Under such circumstances, it is appropriate for the court to apply the law of the forum state. Employers Mutual Casualty Co. v. Skoutaris, 453 F.3d 915, 923 (7th Cir.2006); Employers Ins. of Wausau v. Bodi-Wachs Aviation Ins. Agency, 39 F.3d 138, 142 n. 2 (7th Cir.1994); Coleman v. Ramada Hotel Operating Co., 933 F.2d 470, 473 (7th Cir.1991); Shore v. Dandurand, 875 F.2d 656, 658 (7th Cir.1989). Thus, the court will apply the law of Wisconsin.

Although "[c]overage is the necessary precondition for both the duty to defend and the duty to indemnify," Lucterhand v. Granite Microsystems, Inc., 2007 WL 703400, at *24-25, 2007 U.S. Dist. LEXIS 15072, at *73-*74 (E.D.Wis. March 2, 2007), the duty to defend is broader than the duty to indemnify, because the duty to defend is triggered by arguable, as opposed to actual, coverage. See Newhouse by Skow v. Citizens Sec. Mut. Ins. Co., 176 Wis.2d 824, 834-35, 501 N.W.2d 1, 5 (Wis.1993). "[T]he duty to defend is triggered by the allegations contained within the four corners of the complaint." Estate of Sustache v. Am. Family Mut. Ins. Co., 311 Wis.2d 548, 560 751 N.W.2d 845, 850-51 (Wis.2008).

"An insurer has a duty to defend when there are allegations in a complaint that, if proven, 'would give rise to recovery under the terms and conditions of the insurancepolicy.... The duty of defense depends on the nature of the claim and has nothing to do with the merits of the claim.' " Liebovich v. Minn. Ins. Co., 310 Wis.2d 751, 751 N.W.2d 764, 766 (Wis.2008) (quoting Elliott v. Donahue, 169 Wis.2d 310, 485 N.W.2d 403 [1992] ).

Defendant Travelers seeks a declaration that it does not have a duty to defend McKay-Davis in the present action.¹ In making that determination, the court looks solely to the allegations within the four corners of the amended complaint and considers whether those allegations are covered under the policy of insurance. See Liebovich, 751 N.W.2d at 766. Accordingly, in determining whether defendant Travelers has a duty to defend defendant McKay-Davis, the court will not consider the proposed findings of fact which cite to requests for admissions.²

STANDARDS FOR SUMMARY JUDGMENT AND DECLARATORY JUDGMENT

Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); McNeal v. Macht, 763 F.Supp. 1458, 1460-61 (E.D.Wis.1991). "Material facts" are those facts that, under the applicable substantive law, "might affect the outcome of the suit." See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A dispute over "material facts" is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

The burden of showing the needlessness of a trial-(1) the absence of a genuine issue of material fact and (2) an entitlement to judgment as a matter of law-is upon the movant. In determining whether a genuine issue of material fact exists, the court must consider the evidence in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Therefore, all inferences are taken in thelight most favorable to the nonmoving party. Matter of Wade, 969 F.2d 241, 245 (7th Cir.1992).

Jurisdiction over declaratory judgment actions is discretionary. 28 U.S.C. § 2201; Crowley Cutlery Co. v. United States, 849 F.2d 273, 279 (7th Cir.1988). In Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 81 L.Ed. 617 (1937), the Supreme Court held that the required controversy in declaratory actions must be definite and concrete. The controversy must touch the legal relations of parties having adverse legal interests and the controversy must demand specific relief through a conclusive decree. This general rule must be applied on a case-by-case basis. Basically, the question in each case is whether the facts alleged, under all the circumstances, show there is a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. See Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941).

RELEVANT UNDISPUTED FACTS AND ALLEGATIONS ³

On July 8, 2006, Eric Jackson died in Oklahoma City, Oklahoma. (Amended Complaint ¶ 15). He is survived by his wife, Marlenea Jackson, and his daughter, Erica Jackson, who reside in Oak Creek, Wisconsin. Id. ¶ 5. On July 13, 2006, plaintiff Marlenea entered into a contract with McKay-Davis to perform funeral services "to prepare the decedent for viewing, to undertake a visitation and funeral, to cremate the decedent's remains, [and] to ensure [that] the remains of the decedent be delivered to the plaintiffs' home address in Wisconsin." Id. ¶ 17.

Arrangements were made by the defendants to ship Eric Jackson's remains back to Oak Creek, Wisconsin. Id. ¶ 18. Pursuant to those arrangements, defendant DHL picked up the remains from Wilbur Vaults, owned by Subhor. Id. ¶ 19. The arrangements with DHL did not require a signature confirming receipt of Eric Jackson's remains. Id. ¶ 24. As a result, DHL delivered the package containing the remains of Eric Jackson to the plaintiffs' residence in Oak Creek leaving it at the front door without requiring any signature. Id. at ¶ 24, 32. Shortly thereafter, the package containing Eric Jackson's remains went missing as a result of "theft, vandalism,...