Mt. Hawley Ins. Co. v. E. Perimeter Pointe Apartments, LP, CIVIL ACTION FILE NO. 1:18-CV-367-TWT

• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
• Citation: 409 F.Supp.3d 1319
• Docket Number: CIVIL ACTION FILE NO. 1:18-CV-367-TWT
• Parties: MT. HAWLEY INSURANCE COMPANY, Plaintiff, v. EAST PERIMETER POINTE APARTMENTS, LP, et al., Defendants.
• Decision Date: 29 August 2019

409 F.Supp.3d 1319

MT. HAWLEY INSURANCE COMPANY, Plaintiff,
v.
EAST PERIMETER POINTE APARTMENTS, LP, et al., Defendants.

CIVIL ACTION FILE NO. 1:18-CV-367-TWT

United States District Court, N.D. Georgia, Atlanta Division.

Signed August 29, 2019

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Kim M. Jackson, William Randal Bryant, Bovis, Kyle, Burch & Medlin, LLC, Atlanta, GA, for Plaintiff.

Christina Yousef, Robert Douglas Chesler, Anderson Kill & Olick, Newark, NJ, James J. Leonard, Barnes & Thornburg LLP, Atlanta, GA, for Defendant East Perimeter Pointe Apartments, LP.

Matthew Bryan Weaver, Pro Hac Vice, Reed Smith, Miami, FL, Alexander D. Russo, Lawrence J. Bracken, II, Hunton Andrews Kurth LLP, Atlanta, GA, for Defendant Ventron Management, LLC.

James Darren Summerville, Kurt G. Kastorf, Maxwell Kent Thelen, Angela R. Fox, The Summerville Firm, LLC, Atlanta, GA, for Defendants Miranda Wilder, Constance Irions, Adrian Johnson.

OPINION AND ORDER

THOMAS W. THRASH, JR., United States District Judge

This is a declaratory judgment action. It is before the Court on the Third Party Defendant Lexington Insurance Company's Motion for Summary Judgment [Doc.

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91], the Defendant East Perimeter Pointe Apartments, LP's Motion for Summary Judgment [Doc. 93], the Plaintiff Mt. Hawley Insurance Company's Motion for Summary Judgment [Doc. 95], the Defendant Ventron Management, LLC's Motion for Partial Summary Judgment [Doc. 96], the Third Party Defendant Lexington Insurance Company's Motion for Leave to File Notice of Supplemental Authority [Doc. 119], and the Defendants East Perimeter Pointe Apartments, LP and Ventron Management, LLC's Joint Motion for Leave to File Joint Sur-Reply to Notice [Doc. 125]. For the reasons set forth below, the Third Party Defendant Lexington Insurance Company's Motion for Summary Judgment [Doc. 91] is GRANTED, the Defendant East Perimeter Pointe Apartments, LP's Motion for Summary Judgment [Doc. 93] is DENIED, the Plaintiff Mt. Hawley Insurance Company's Motion for Summary Judgment [Doc. 95] is GRANTED, the Defendant Ventron Management, LLC's Motion for Partial Summary Judgment [Doc. 96] is DENIED, the Third Party Defendant Lexington Insurance Company's Motion for Leave to File Notice of Supplemental Authority [Doc. 119] is DENIED as moot, and the Defendants East Perimeter Pointe Apartments, LP and Ventron Management, LLC's Joint Motion for Leave to File Joint Sur-Reply to Notice [Doc. 125] is DENIED as moot.

I. Background

This case arises out of an assault and murder at an apartment complex in Georgia. The Defendant East Perimeter Pointe Apartments, LP owns the East Perimeter apartment complex in Decatur, Georgia (the "Apartment Complex").¹ The Apartment Complex, formerly known as Crestview Apartments, is managed by the Defendant Ventron Management, LLC.² Marcus Wilder lived in the Apartment Complex in December 2015.³ On December 26, 2015, Adrian Johnson was visiting Wilder at Wilder's apartment.⁴ During this visit, several assailants broke into the apartment unit and assaulted Johnson.⁵ That day, Wilder went to visit Johnson in the hospital after the assault, and when he returned to his apartment, one of the assailants was hiding in his closet.⁶ The assailant exited the closet and shot Wilder in the head with a handgun.⁷ Wilder died outside of his apartment unit.⁸

Two lawsuits were filed arising out of these events. Miranda Wilder, as Administratrix of the Estate of Marcus Wilder, and Constance Irions, as the natural mother and legal guardian of London McKenzie Wilder, filed a lawsuit (the "Wilder Lawsuit") against East Perimeter and Ventron in the State Court of DeKalb County on October 12, 2017, seeking to recover damages from the death of Wilder at the Apartment Complex.⁹ Adrian Johnson filed a lawsuit (the "Johnson Lawsuit") against East Perimeter and Ventron in the State Court of DeKalb County on December 4, 2017.¹⁰ The plaintiffs in both lawsuits allege

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that Ventron and East Perimeter were negligent in failing to maintain, inspect, secure, patrol, and manage the Apartment Complex.¹¹

Both Ventron and East Perimeter had notice of the Wilder and Johnson incidents that occurred on December 26, 2015.¹² East Perimeter and Ventron learned of the shooting of Wilder almost immediately.¹³ Ventron completed an "incident report form" on December 26, 2015, less than twelve hours after the shooting, describing the "Murder and Burglary" at Wilder's apartment.¹⁴ That same day, Lou Litvin, Ventron's Chief Operating Officer, sent an email with the subject "SHOOTING AT EPP" to Stephen Greenberg, the President of East Perimeter.¹⁵ This email discussed the murder of Wilder at the Apartment Complex.¹⁶

The Plaintiff Mt. Hawley Insurance Company issued a commercial general liability insurance policy (the "Mt. Hawley Policy") with a policy period of December 15, 2015 through December 15, 2016.¹⁷ The named insured of the Mt. Hawley Policy is listed as "Skinner Select, WCPP Risk Purchasing Group Inc."¹⁸ Skinner Select included various property owners throughout the country as members. The Mt. Hawley Policy contains a notice provision. This provision states that "[i]n the event of any occurrence that may result in a claim against this policy, the insured will immediately report such occurrence and cooperate fully with the following claim adjusting company: RLI ADJUSTING COMPANY."¹⁹ It also states that "[t]his condition is made part of the policy to which it is attached and remains in force beyond the policy expiration."²⁰ The Mt. Hawley Policy also provides certain "Duties In The Event Of Occurrence, Claim Or Suit." This section provides that:

a. You must see to it that we are notified as soon as practicable of an "occurrence" or an offense which may result in a claim. To the extent possible, notice should include:

(1) How, when and where the "occurrence" or offense took place;

(2) The names and addresses of any injured persons and witnesses; and

(3) The nature and location of any injury or damage arising out of the "occurrence" or offense.

b. If a claim is made or "suit" is brought against any insured, you must:

(1) Immediately record the specifics of the claim or "suit" and the date received; and

(2) Notify us as soon as practicable.

You must see to it that we receive written notice of the claim or "suit" as soon as practicable.

c. You and any other involved insured must:

(1) Immediately send us copies of any demands, notices, summonses or

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legal papers received in connection with the claim or "suit".²¹

The Mt. Hawley Policy also provides that "[n]o person or organization has a right [t]o sue us on this Coverage Part unless all of its terms have been fully complied with."²² Mt. Hawley first received notice of the December 26, 2015 murder of Marcus Wilder on November 13, 2017, when it received a copy of the complaint in the Wilder Lawsuit.²³ It first received notice of the December 26, 2015 assault of Adrian Johnson on December 6, 2017, when Ventron sent Mt. Hawley a copy of an incident report from this event.²⁴ Mt. Hawley did not receive a copy of the January 8, 2016 letter sent by Miranda Wilder's attorney until it was served on Mt. Hawley during discovery in this action.²⁵

Lexington issued a commercial umbrella liability policy (the "Lexington Policy") to Skinner Select, WCPP Risk Purchasing Group, Inc., a California corporation.²⁶ WCPP is a risk purchasing group, a mechanism used to insure multiple entities with different owners under a single insurance policy.²⁷ The Lexington Policy provides that Lexington will pay sums in excess of the "Retained Amount" that the insured becomes legally obligated to pay.²⁸ The Lexington Policy states that Lexington has the right and duty to defend against any suit against the Insured that seeks damages for "bodily injury" if the total applicable limits for the "scheduled underlying insurance" have been exhausted, or the damages sought would not be covered by the "scheduled underlying insurance."²⁹ The Mt. Hawley Policy is listed as a "scheduled underlying insurance" in the Lexington Policy.³⁰

Like the Mt. Hawley Policy, the Lexington Policy also contains a notice provision in a section titled "Duties in the Event of an Occurrence, Claim or Suit."³¹ It provides that:

1. You must see to it that we are notified as soon as practicable of an "occurrence" that may result in a claim or "suit" under this policy. To the extent possible, notice should include:

a. How, when and where the "occurrence" took place;

b. The names and addresses of any injured persons and any witnesses; and

c. The nature and location of any injury or damage arising out of the "occurrence."

2. If a claim is made or "suit" is brought against any "Insured" which is reasonably likely to involve this policy, you must notify us in writing as soon as practicable on the assumption that an "Insured" is liable for the damage claimed....

3. You and any other involved "Insured" must:

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a. Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the claim or

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