Northfield Ins. Co. v. Boxley

• Decision Date: 15 August 2002
• Docket Number: Nos. CIV. AMD 02-97, CIV. AMD 02-285.,s. CIV. AMD 02-97, CIV. AMD 02-285.
• Citation: 215 F.Supp.2d 656
• Parties: NORTHFIELD INSURANCE CO., Plaintiff v. George B. BOXLEY, et al., Defendants George B. Boxley, Plaintiff v. Northfield Insurance Co., Defendant
• Court: U.S. District Court — District of Maryland

Page 656

215 F.Supp.2d 656

NORTHFIELD INSURANCE CO., Plaintiff v. George B. BOXLEY, et al., Defendants George B. Boxley, Plaintiff v. Northfield Insurance Co., Defendant

Nos. CIV. AMD 02-97, CIV. AMD 02-285.

United States District Court, D. Maryland.

August 15, 2002.

Terrence Mark Ranko Zic, Law Office, Thomas S. Schaufelberger, Wright Robinson Osthimer and Tatum, Washington, DC, for Plaintiff.

Saul M. Schwartzbach, Law Office, Bethesda, MD, for Defendant.

MEMORANDUM

DAVIS, District Judge.

These diversity declaratory judgment actions, one of which was filed pursuant to 28 U.S.C. § 2201(a) and one of which was removed from state court, arise under a comprehensive liability insurance policy. The issue presented is whether defendant George B. Boxley ("Boxley") is entitled to a defense from his insurer, Northfield Insurance Company ("Northfield"), in a wrongful death and survivorship action that was filed against Boxley in respect to the fatal shooting of Ronald Davis. The parties agree that Maryland law applies to this case. Cross-motions for summary judgment have been filed and no hearing is needed. For the reasons stated herein, Northfield's motion for summary judgment shall be granted, and Boxley's cross-motion for summary judgment shall be denied.

(i)

Pursuant to Fed.R.Civ.P. 56(c), summary judgment is appropriate "if 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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material for purposes of summary judgment, if when applied to the substantive law, it affects the outcome of the litigation. Id. at 248, 106 S.Ct. 2505. Summary judgment is also appropriate when a party "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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

A party opposing a properly supported motion for summary judgment bears the burden of establishing the existence of a genuine issue of material fact. Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505. "When a motion for summary judgment is made and supported as provided in [Rule 56], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavit or as otherwise provided in [Rule 56] must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). See Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548; Anderson, 477 U.S. at 252, 106 S.Ct. 2505; Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir.1991). Of course, the facts, as well as the justifiable inferences to be drawn therefrom, must be viewed in the light most favorable to the nonmoving party. See Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court, however, has an affirmative obligation to prevent factually unsupported claims and defenses from proceeding to trial. See Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987).

When both parties file motions for summary judgment, as here, the court applies the same standards of review. Taft Broadcasting Co. v. United States, 929 F.2d 240, 248 (6th Cir.1991); ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42, 45 n. 3 (4th Cir.1983) ("The court is not permitted to resolve genuine issues of material facts on a motion for summary judgment — even where ... both parties have filed cross motions for summary judgment")(emphasis omitted), cert. denied, 469 U.S. 1215, 105 S.Ct. 1191, 84 L.Ed.2d 337 (1985).

The role of the court is to "rule on each party's motion on an individual and separate basis, determining, in each case, whether a judgment may be entered in accordance with the Rule 56 standard." Towne Mgmt. Corp. v. Hartford Acc. and Indem. Co., 627 F.Supp. 170, 172 (D.Md.1985)(quoting Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2720 (2d ed.1993)). See also Federal Sav. and Loan Ins. Corp. v. Heidrick, 774 F.Supp. 352, 356 (D.Md.1991). "[C]ross-motions for summary judgment do not automatically empower the court to dispense with the determination whether questions of material fact exist." Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 349 (7th Cir.), cert. denied, 464 U.S. 805, 104 S.Ct. 53, 78 L.Ed.2d 72 (1983). "Rather, the court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir.1987). Both motions may be denied. See Shook v. United States, 713 F.2d 662, 665 (11th Cir.1983).

"[B]y the filing of a motion [for summary judgment] a party concedes that no issue of fact exists under the theory he is advancing, but he does not thereby so concede that no issues remain in the event his adversary's theory is adopted." Nafco Oil and Gas, Inc. v. Appleman, 380 F.2d 323, 325 (10th Cir.1967). See also McKenzie v. Sawyer, 684 F.2d 62, 68 n. 3 (D.C.Cir.1982) ("neither party waives the right to a full trial on the merits by filing its own motion"). However, when cross-motions for summary judgment demonstrate a basic agreement concerning what legal theories and material facts are dispositive, they "may be probative of the non-existence of a factual dispute." Shook, 713 F.2d at 665.

(ii)

Northfield issued a commercial general liability policy to Boxley insuring the business and premises known as Sheriff Road Motel, located at 5500 Sheriff Road, Fairmont Heights, Prince George's County, Maryland. The policy was in effect from November 16, 1999, through November 16, 2000.

The terms of the policy provide:

a. We will pay those sums that the insured becomes legally obligated to pay because of "bodily injury" ... to which this insurance "applies ...."

b. This insurance applies to "bodily injury" ... only if:

(1) The "bodily injury" ... is caused by an "occurrence." ...

Insuring Agreement, 1 (Section I Coverage A).

"Occurrence," in turn, is defined as "[a]n accident, including continuous or repeated exposure to substantially the same general harmful conditions." Id. at 12 (Section V-Definitions). "Bodily injury" is defined as "bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time." Id. (Section V-Definitions).

Claims arising out of or related to an assault or battery are expressly excluded from coverage. This exclusion provides as follows:

This insurance does not apply to "bodily injury," "property damage," "personal injury," "advertising injury," or medical expense arising out of an assault or battery or out of any act or omission in connection with the prevention or suppression of an assault or battery; whether caused by or at the instigation or direction of the insured, an "employee" or patron of the insured, or any other person.

Endorsement, Exclusion — Assault or Battery.

On March 19, 2000, Ronald Davis was at the Sheriff Road Motel. At around 2:00 p.m., Davis and another man exited the front door of the motel. Lyn Banks Aff., ¶ 3. The two men were heard arguing with each other in loud voices. Id. As Davis crossed the street and began to open the trunk of an automobile, the other man produced a gun and "pointed the gun at the street and fired shots that appeared ... to be aimed into the street." Id. Davis sustained a fatal gunshot wound. The autopsy report stated that the decedent died of a gunshot wound to the left side of the back of the chest. The report concluded that the bullet struck an "intermediate target" before striking the deceased.

Subsequently, Juno Davis, Davis's widow, brought wrongful death and survival actions against Boxley in the Circuit Court for Prince George's County ("the underlying action"). The complaint in the underlying action contains the following allegations:

3) On March 19, 2000, Ronald Davis entered the premise[s] known as Sheriff Road Motel ...

4) While on the premises of the Sheriff Road Motel, Ronald Davis became involved in an altercation with an individual who was employed by and/or in the supervision of the defendant [Boxley].

5) During the entire time that Ronald Davis was on the premise[s] of the Sheriff Road Motel, he was not armed with any type of weapon.

6) As Ronald Davis left the premises of the Sheriff Road Motel, he was followed by an employee and/or person under the supervision of the [Boxley]. The agent of [Boxley] shot and killed Ronald Davis in the street near Sheriff Road Motel.

The complaint contains these further allegations against Boxley, referred to as "Defendant":

13) Defendant breached his duty ... by allowing employees and/or agents to maintain weapons in the premises.

14) Defendant breached his duty by failing to adequately monitor and supervise the activities of the Sheriff Road Motel, and failing to provide for the safety of Ronald Davis ... and further breached his duty by failing to adequately investigate the background of the individual who shot and killed Ronald Davis.

15) The breaches of duty by the defendant proximately caused the death of Ronald Davis.

(iii)

It is well established in Maryland that insurance policies are construed like other contracts. Little v. First Federated Life Ins. Co., 267 Md. 1, 296 A.2d 372 (1972) (citation omitted). As with other contracts, the words of an insurance policy are to be given their ordinary meaning. C & H Plumbing and Heating, Inc. v. Employers Mut. Cas. Co., 264 Md. 510, 287 A.2d 238, 239 (1972) (citations omitted). "[W]hen deciding the issue of coverage under...