McLaren v. Imperial Cas. and Indem. Co.

• Decision Date: 12 February 1991
• Docket Number: Civ. A. No. 4-90-460-A.
• Citation: 767 F. Supp. 1364
• Parties: Roberta McLAREN, Plaintiff, v. IMPERIAL CASUALTY AND INDEMNITY COMPANY, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

767 F. Supp. 1364

Roberta McLAREN, Plaintiff, v. IMPERIAL CASUALTY AND INDEMNITY COMPANY, et al., Defendants.

Civ. A. No. 4-90-460-A.

United States District Court, N.D. Texas, Fort Worth Division.

February 12, 1991.

COPYRIGHT MATERIAL OMITTED

Arthur John Brender, Brender & Colosi, Fort Worth, Tex., for plaintiff.

John Dennis Weitzel, Burleson Pate & Gibson, Dallas, Tex., Randy Jarvis Hall, Decker Jones McMackin McClane Hall & Bates, Anne Lancaster Gardner, Shannon Gracey Ratliff & Miller, Fort Worth, Tex., for defendants.

MEMORANDUM OPINION AND ORDER

McBRYDE, District Judge.

This is a diversity action. Texas substantive law controls. Roberta McLaren ("McLaren") is plaintiff, and Imperial Casualty and Indemnity Company ("Imperial"), Special Risks, Inc., ("Special") and Russell Grace, Inc., ("Grace") are defendants. The matters that are before the court for ruling are (1) Special's motion to dismiss the complaint as to it because of lack of personal jurisdiction; (2) McLaren's motion for summary judgment; (3) Special's motion for summary judgment; (4) Imperial's motion for summary judgment; and (5) Grace's motion for summary judgment.

The court has concluded that Special's motion to dismiss should be denied, that McLaren's motion for summary judgment should be denied, and that defendants' motions for summary judgment should be granted.

Nature of the Litigation

A rather simple dispute over liability insurance coverage is at the heart of this action. As is so often true in cases of this sort, the simple coverage dispute comes to the court clothed in legal garb woven with a multitude of legal theories designed to maximize the gain by McLaren from any possible misstep by the insurer and to impose on the non-insurer defendants basically the same liability sought to be imposed on the insurer defendant because of their alleged relationships to the insurance coverage dispute.

The Insurance Coverage:

Imperial, the insurer defendant, issued to Bedford Police Department and City of Bedford, as the "Named Insureds", a liability insurance policy bearing the title "Law Enforcement Professional Liability Insurance" ("policy"). Exhibit "G" to Amended Complaint. Persons and entities who were "Insureds" to whom liability insurance coverage potentially was afforded by the policy were, inter alia, Bedford Police Department, City of Bedford and employees of each. Id. at page 1.

Imperial promised in the insuring clause of the policy that, subject to other provisions, limitations and exclusions contained in the policy, it would:

... pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of wrongful acts arising out of Law Enforcement activities.

Id. at page 1 (emphasis added). The term "wrongful act", as used in the insuring clause, is defined in the policy to mean:

WRONGFUL ACT Means only or all of the following: Actual or alleged error, misstatement or misleading statement, omission, neglect or breach of duty by the Insured individual or collectively, while acting or failing to act within the scope of his employment or official duties pertaining to the law enforcement functions of the Insured;

Id. at page 2 (emphasis added).

The insuring clause goes on to provide that the coverage of the policy extends, subject to the terms and provisions of the policy, to (a) legal liability of the insured to pay damages because of personal injury or bodily injury and (b) punitive damage, where permitted by law. The terms "Bodily Injury" and "Punitive Damage" are defined in the policy in ways that are not relevant to the court's rulings. The term "Personal Injury" is defined in the policy as follows:

PERSONAL INJURY Means false arrest, erroneous service of civil papers, false imprisonment, malicious prosecution, assault and battery, libel, slander, defamation of character, discrimination, mental anguish, wrongful entry or eviction, violation of property or deprivation of any rights, privileges or immunities secured by the Constitution and Laws of the United States of America or the State for which the Named Insured may be held liable to the party injured in any action at law, suit in equity, or other proper proceedings for redress. However, no act shall be deemed to be or result in personal injury unless committed in the regular course of duty by the Insured.¹

Id. at page 3 (emphasis added).

Thus, the policy language leaves no doubt that its coverage as to a person who is an "Insured" because of his employment by Bedford Police Department or City of Bedford as a law enforcement officer extends only to an obligation he has to pay damages that has resulted from an act or omission he has committed "while acting or failing to act within the scope of his employment or official duties pertaining to law enforcement functions" arising out of law enforcement activities. The policy language makes perfectly clear that its coverage does not extend to liability for damages if the liability is the product of a personal lark or venture of the insured that occurred during his deviation for a personal reason from the performance of his law enforcement duties.

Another obligation undertaken by Imperial under the policy was to defend any claim or suit brought against an insured "seeking damages on account of such wrongful acts." Id. at page 1. The use of the term "such wrongful acts" obviously has reference to the "wrongful acts arising out of Law Enforcement activities" that are mentioned in the insuring clause. So, when the definition of "wrongful acts" is taken into account, the policy says that the insurer's defense obligation exists only when the claims or suit against the insured are the result of an act or omission by the insured "while acting or failing to act within the scope of his employment or official duties" arising out of law enforcement activities.

The policy language that is determinative of this case is clear and unambiguous and would be understood by any reasonably intelligent person.

Facts upon which the Claim of Insurance Coverage is Based:

The core of McLaren's complaint, as amended, is a claim that a police officer of City of Bedford by the name Larry Taylor ("Taylor") was an insured under the policy and that the policy extended liability insurance protection to Taylor in respect to claims McLaren had against him because of a sexual assault Taylor inflicted on her in April 1985. McLaren incorporates in her complaint the contents of a written statement she made shortly after the event, in which she gives explicit details of her encounter with Taylor. Amended Complaint, page 2 and Exhibit "A." An abbreviated, less lurid account follows:

After an evening of entertainment on April 22, 1985, with friends, and as she was driving on a freeway in Bedford, Texas, McLaren was stopped by Taylor, a Bedford police officer. At the direction of Taylor, she exited her car, displayed her driver's license and underwent a sobriety test, which, apparently, she passed. Upon discovering that McLaren did not have proof of liability insurance with her, Taylor gave her a ticket for no liability insurance. Taylor then told McLaren to get in her car and follow him, without further explanation. She followed him off the freeway to a deserted area, where Taylor pulled into a parking lot near industrial buildings. Taylor told McLaren to exit her car and enter his. As she was in the process of doing so, Taylor told her to step back as another car went by, and then he told her to come on around and get in his car. She inquired as to whether she should get in the front or back, and followed his directions when he told her enter the front. After she was in the front seat Taylor told her to pull her dress up. She pulled it all the way up like he told her to. Then, he told her to unhook her bra and raise it up, which she did. Taylor then stared at her and made complimentary comments about her endowments, at which point the thought passed her mind that Taylor's conduct seemed crude. Next, Taylor unzipped his pants and proceeded to force Taylor to perform an oral sex act on him. Once the act was completed and McLaren straightened out her dress, Taylor altered the traffic ticket and told her that he was going to give her a citation for no driver's license and that she would be able to take it to the judge with her driver's license and have it dismissed. When she inquired as to whether she could leave, Taylor told her that she could. She went to her car. Taylor told her to stand by her car until he had left.

Taylor's conduct led to a criminal indictment and his conviction on the offense of sexual assault.

The State Court Suit and Events Related to it:

In the process of attempting to parlay the unfortunate event she describes in her complaint into a joint and several recovery from defendants of approximately $25,000,000.00, McLaren, in cooperation with Taylor, has employed techniques that have become all too familiar in the legal community.

The first overt act was the giving by Taylor of notice to Imperial, Special and Grace of the existence of McLaren's claims against him. McLaren fortified the notice by giving a notice of her own, which told of her intent to file suit against Taylor if her claims were not resolved. When Imperial, quite understandably in view of the policy language, did not accede to the demands that it make payment to McLaren on behalf of Taylor, McLaren filed a damage suit against City of Bedford and Taylor in a state district court.² The damage suit pleading revealed on its face that the claims by McLaren against Taylor arose from personal conduct on the part of Taylor, unrelated to any law enforcement goal. Basically, the pleading gave a short version of the April 1985 encounter between McLaren and Taylor that is described in the written statement mentioned above. The pleading made clear that McLaren's causes of action against Taylor were based on the encounter thus...