NATIONWIDE MUT. FIRE INS. v. MITCHELL BY SEYMOUR

• Decision Date: 31 October 1995
• Docket Number: Civil A. No. 1:95cv322GR.
• Citation: 911 F. Supp. 230
• Parties: NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Plaintiff, v. Walter Shane MITCHELL, By and Through his mother, Lana Ree SEYMOUR, Defendant.
• Court: U.S. District Court — Southern District of Mississippi

911 F. Supp. 230

NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Plaintiff, v. Walter Shane MITCHELL, By and Through his mother, Lana Ree SEYMOUR, Defendant.

Civil A. No. 1:95cv322GR.

United States District Court, S.D. Mississippi, Southern Division.

October 31, 1995.

Peter C. Abide, Compton, Crowell & Hewitt, Biloxi, MS, for plaintiff.

MEMORANDUM OPINION

GEX, District Judge.

This cause comes before the Court on the motion for summary judgment 4-1 and motion for default judgment 6-1, filed by the plaintiff, Nationwide Mutual Fire Insurance Company Nationwide. After due consideration of the evidence of record, the briefs of counsel, the applicable law, and being otherwise fully advised in the premises, the Court finds that Nationwide's motion for summary judgment should granted, and motion for default judgment should be denied as moot.

Statement of Facts

The instant controversy stems from a domestic dispute turned violent, which occurred at the residence of the insured, Walter Seymour Walter. At the time of the altercation, Walter was married to Lana Ree Seymour Lana. The defendant's uncontested itemization of facts and supporting documents indicate that, on October 7, 1994, Walter's ex-wife, Shirley Seymour Shirley, pulled up in front of Walter's home in her car. An argument arose between Walter and Shirley (who remained in her car) about the time that Lana's son and Walter's stepson, sixteen-year-old Walter Shane Mitchell Shane, walked outside with his girlfriend, intending to go to a homecoming dance. Shane's mother, Lana, went over and joined in the argument while Shane watched from the car where he was seated with his girlfriend. The ongoing argument between Walter, Lana, and Shirley became more intense. Shane observed Shirley get out of her car and approach his mother. Shane then got out of his car and jogged across the yard to get between them. When Shane saw Shirley push his mother, he moved in and struck Shirley on the left side of her head with his fist. Shirley was knocked to the ground by the force of the blow and suffered severe injuries to her face, eye, skull, jaw, and cheek. See Def.'s Item. of Material Facts not in Dispute Item., ¶¶ 1-8; Def.'s Mot. for Summ.J., attached exhibits.¹

Shirley subsequently filed a personal injury claim against Shane and demanded payment of policy limits from a homeowner's insurance policy issued by Nationwide to Shane's stepfather, Walter, which covered Shane as a resident relative of Walter's household. See Def.'s Mot. for Summ.J., Exh. A (complaint for declaratory judgment). The policy at issue contained an exclusion from personal liability for personal injury or medical payments if the bodily injury was:

caused intentionally by or at direction of an insured, including willful acts the result of which the insured knows or ought to know will follow from the insured's conduct.

See id., Exh. A; Nationwide Homeowner's Policy, Amend.Endors.Fire 3191 (8-91) at 4 (emphasis omitted). On June 16, 1995, Nationwide filed the instant complaint for a declaratory judgment that the defendant insured is not entitled to coverage in light of the foregoing policy exclusion. Following the defendant's failure to file an answer, Nationwide filed a motion for summary judgment and a motion for default judgment on September 1, 1995. The defendant has neither filed an answer nor responded to Nationwide's motions.

Standard of Review

Summary judgment is designed "to secure the just, speedy, and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (citation and internal quotation omitted); see Berry v. Armstrong Rubber Co., 780 F.Supp. 1097, 1099 (S.D.Miss.1991), affirmed, 989 F.2d 822 (5th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1067, 127 L.Ed.2d 386 (1994). A grant of summary judgment is appropriate when, viewed in the light most favorable to the nonmoving party, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c).

The failure of a party to respond to a motion for summary judgment does not automatically entitle the moving party to summary judgment. See John v. State of Louisiana Bd. of Trustees for State Colleges and Univs., 757 F.2d 698, 709-10 (5th Cir. 1985). If the movant has not satisfied its initial burden, the nonmovant need not respond at all. Id. However, if the movant has met its burden, "the nonmovant cannot survive the motion by resting on the mere allegations of its pleadings." Isquith v. Middle South Utilities, Inc., 847 F.2d 186 (5th Cir.) (citations omitted), cert. denied, 488 U.S. 926, 109 S.Ct. 310, 102 L.Ed.2d 329 (1988). When there is a wholly nonresponsive party, the Court looks to the evidence presented by the moving party to see if the moving party has met its substantive burden under Rule 56. Smith v. Alumax Extrusions, Inc., 868 F.2d 1469, 1472 (5th Cir. 1989). If the party has satisfied its burden, the Court may rule on the merits and grant summary judgment as opposed to default judgment. Id.²

Legal Analysis

This Court applies Mississippi law in deciding the legal issues in this lawsuit, filed pursuant to this Court's diversity jurisdiction. Batts v. Tow-Motor Forklift Co., 978 F.2d 1386, 1389 (5th Cir.1992) (citing Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). In deciding how Mississippi courts would resolve an issue of law, Judge Davidson in the Northern District of Mississippi noted the following:

While it is not the province of this court to create new law for Mississippi, Green v. Amerada-Hess Corp., 612 F.2d 212 (5th Cir.1980), cert. denied, 449 U.S. 952, 101 S.Ct. 356, 66 L.Ed.2d 216 (1980), the court is permitted to "reach the decision we think a state court would reach." DiPascal v. New York Life Ins. Co., 749 F.2d 255, 260 (5th Cir.1985). Additionally, as the Fifth Circuit has recently cautioned, in the Erie context: "We are emphatically not permitted to do merely what we think best; we must do that which we think the Mississippi Supreme Court would deem best." emphasis omitted Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 397 (5th Cir.1986).

Laws v. Aetna Finance Co., 667 F.Supp. 342, 344 (N.D.Miss.1987). In determining how the Mississippi Supreme Court would decide a disputed issue not expressly ruled upon, federal courts look, inter alia, to supreme court dicta, general common law, and decisions of other states to which the supreme court would look for guidance in making its decisions. See id. at 344-45.

In Southern Farm Bureau Casualty Ins. Co. v. Allard, 611 So.2d 966 (Miss.1992), the insured's brother-in-law was injured when the insured fired a shotgun "to bring him to his senses" and the brother-in-law stepped into the line of fire. Id. at 968. A factual issue arose whether the shooting was an intentional act sufficient to trigger the intentional-act exclusion clause in the insured's homeowner's insurance policy. Id. The jury found that the insured did not intentionally shoot his brother-in-law in the foot, and the Mississippi Supreme Court affirmed. Id. at 968-69. The Mississippi Supreme Court, relying on precedent, found that "`an act is intentional if the actor desires to cause the consequences of his act, or believes that the consequences are substantially certain to result from it.'" Id. at 968 (citing Coleman v. Sanford, 521 So.2d 876, 878 (Miss.1988)). The court further found that "`an intentional tort is an act of intentional behavior designed to bring about the injury.'" Id. (citing Stevens v. FMC Corp., 515 So.2d 928, 931 (Miss. 1987)).

The Court finds that the record clearly establishes that Shane's blow to the victim was an intentional act. Shane's mother testified on deposition as follows:

After she the victim pushed me and my husband hollered, "no Shane," I knew what was coming, because she has threatened us and harassed us so much in the last four years that I knew he had this anger built up in him, you know, against her because she has done so much to us. So I jumped up in between them to prevent it. I mean, I jumped as high as I could, and still he come over and hit her, and I was knocked down in the process.

Def.'s Mot. for Summ.J., Exh. C (Lana's Depo.), at 18 (emphasis added). Shane's hostility toward Shirley is supported by his own deposition testimony, in which he recounts her previous threats, his mother's desire to avoid a violent confrontation because it "wasn't worth it," and his mistrust of Shirley because of his belief that she had tried to kill herself and might also try to kill his mother. Id., Exh. B. (Shane's Depo.), at 4-12. Shane testified that, because he did not trust Shirley, he waited in the car, listening with his car window cracked, to intervene in any possible altercation. Id. at 9-10. Shane further testified that, although he "blacked out" and could not remember his fist actually contacting Shirley's face, he knew that he had punched her. Id. at 11-12.

Although the Court has not unearthed any Mississippi case involving facts presented in this controversy, Mississippi courts are guided by ample persuasive authority that demonstrates that Shane's decision to intervene in the altercation between the victim and his mother by punching her in the face was an intentional act. See Simpson v. Angel, 598 So.2d 584 (La.Ct.App.) (two punches by minor assailant, allegedly in self-defense, resulting in fracture of eye and facial bones of minor victim, an intentional act for purposes of policy exclusion because act was reasonably calculated to cause bodily harm), writ denied, 605 So.2d 1091 (La.1992); Cavalier v. Suberville, 592 So.2d 506 (La.Ct.App.1991) (single punch, in retaliation for previous wrongs, resulting in fracture of several facial bones, was...