Omega US Ins., Inc. v. D&S Indy, Inc., 1:11-cv-00355-JMS-TAB

• Decision Date: 21 August 2012
• Docket Number: 1:11-cv-00355-JMS-TAB
• Citation: Omega US Ins., Inc. v. D&S Indy, Inc., 1:11-cv-00355-JMS-TAB (S.D. Ind. Aug 21, 2012)
• Parties: OMEGA US INSURANCE, INC., Plaintiff, v. D&S INDY, INC. D/B/A COLONIAL INN, CHESTER HALL, DANIEL REED, AND SHANNON BOWMAN, Defendants.
• Court: U.S. District Court — Southern District of Indiana

OMEGA US INSURANCE, INC., Plaintiff,

v. D&S INDY, INC. D/B/A COLONIAL INN, CHESTER HALL,DANIEL REED, AND SHANNON BOWMAN, Defendants.

1:11-cv-00355-JMS-TAB

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

Filed: August 21, 2012

ORDER

Presently before the Court in this commercial general liability insurance coverage dispute are cross-motions for summary judgment by Plaintiff Omega US Insurance, Inc. ("Omega") and Defendant D&S Indy, Inc. d/b/a Colonial Inn ("Colonial"). [Dkts. 42; 44.]

I.BACKGROUND

Debra Baker is the President of D&S Indy and, as such, is responsible for securing insurance for Colonial, a bar/tavern. [Dkt. 45-1 at 2.] In 2005, Ms. Baker began working with Fred Schoettle of Dant Insurance Agency in Indianapolis to secure commercial general liability ("CGL") insurance for Colonial. [Dkts. 43-1 at 1; 45-1 at 3.] In March 2010, Mr. Schoettle completed an application on behalf of Colonial for CGL insurance which he submitted to an insurance broker. [Dkt. 43-1 at 1-2.] The broker then provided a quote from Omega for CGL insurance. [Id. at 2.] Ms. Baker claims that, based on an October 2009 assault which occurred at Colonial and for which Colonial's previous insurer had denied coverage, "when we began securing the insurance policy at issue with Omega.. .we wanted to make sure we had all the insurance coverage we needed for our bar," and "[w]e asked Mr. Schoettle to secure the necessary insurance for [Colonial]." [Dkt. 45-1 at 3.] The quote for CGL coverage from Omega identified anAssault and/or Battery Exclusion and a Total Liquor Exclusion as two "notable exclusions and endorsements." [Dkt. 43-1 at 7.] Christopher Dant of Dant Insurance Agency signed the Omega quote on behalf of Colonial, agreeing with its terms and conditions and asking Omega to bind coverage for Colonial. [Id. at 2, 6.] Omega issued a policy to Colonial effective April 11, 2010 ("the Policy"). [Id. at 8.]

The Policy included an Assault and/or Battery Exclusion, which provided in relevant part:

The coverage under this policy does not apply to any claim, suit, cost or expense arising out of assault and/or battery, or out of any act or omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or direction of any Insured or Insured's employees, patrons or any other person. Nor does this insurance apply with respect to any charges or allegations of negligent hiring, training, placement or supervision. Furthermore, assault and/or battery includes "bodily injury" resulting from the use of reasonable force to protect persons or property.

[Dkt. 7-1 at 15.] The Policy also contained a Total Liquor Exclusion, which stated:

The coverage under this policy does not apply to "bodily injury", "property damage", "personal injury", "advertising injury", or any injury, loss or damage arising out of:

1) Causing or contributing to the intoxication of any person; and/or

2) Furnishing alcoholic beverages to anyone under legal drinking age or under the influence of alcohol; and/or

3) Any statute, ordinance or regulation relating to sales, gift, distribution or use of alcoholic beverages; and/or

4) Any act or omission by any insured, any employee of any insured, patrons, members, associates, volunteers or any other persons respects providing or failing to provide transportation, detaining or failing to detain any person, or any act of assuming or not assuming responsibility for the well being, supervision or care of any person allegedly under or suspected to be under the influence of alcohol.

[Id. at 21.]

On May 13, 2010, while leaving Colonial, defendants Daniel Reed, Chester Hall, and Shannon Bowman were attacked by Jamie Parcher in or near the Colonial parking lot. [Dkt. 43-2 at 1-2.] Ms. Parcher allegedly stabbed Mr. Reed, Mr. Hall, and Ms. Bowman, causing injury. [Dkts. 19 at 3; 23 at 2.] Ms. Parcher was charged with one count of aggravated battery, two counts of felony battery, and one count of misdemeanor public intoxication. [Dkt. 43-2 at 1-2.] She eventually pled guilty to aggravated battery and is currently serving her sentence in the Indiana Department of Corrections. [Dkts. 43-3 at 1-3; 43-4 at 1.]

In the aftermath of the attack, Mr. Reed demanded that Omega cover all of his claims against Colonial arising out of the attack. [Dkt. 19 at 3 ¶ 8.] Mr. Hall retained counsel who advised Omega that he intended to present a claim to Omega on behalf of Mr. Hall. [Dkt. 23 at 3 ¶ 9.] Omega advised Colonial that it was investigating coverage for the attack under a reservation of rights, and that it appeared the Assault and/or Battery Exclusion and the Total Liquor Exclusion might preclude coverage. [Dkt. 50-1 at 7-8.] Omega then filed the instant declaratory judgment action, seeking a declaration that it owes no duty to defend or indemnify Colonial in any claim or lawsuit that has been or may be filed by Mr. Reed, Mr. Hall, or Ms. Bowman arising out of the attack based on the Assault and/or Battery Exclusion and the Total Liquor Exclusion. [Dkt. 7 at 4.]¹ Omega has filed a motion for summary judgment, [dkt. 42], and Colonial has filed a cross motion, [dkt. 44].

During briefing on the summary judgment motions, Mr. Reed and Mr. Hall both filed complaints in state court against Colonial and Ms. Parcher. [Dkts. 62-1; 64-1.] Mr. Reed assertsclaims against Colonial for negligent hiring, negligent supervision, negligent retention, criminal recklessness, and premises liability. [Dkt. 62-1 at 2-5.] Mr. Hall appears to assert a claim against Colonial for negligence by failing to provide adequate security and overserving its patrons. [Dkt. 64-1 at 1-2.] There is no evidence that Ms. Bowman has initiated any legal action against Colonial in connection with the attack.²

II.STANDARD OF REVIEW

A motion for summary judgment asks that the Court find that a trial based on the uncon-troverted and admissible evidence is unnecessary because, as a matter of law, it would conclude in the moving party's favor. See Fed. R. Civ. Pro. 56. To survive a motion for summary judgment, the non-moving party must set forth specific, admissible evidence showing that there is a material issue for trial. Fed. R. Civ. Pro. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed. R. Civ. Pro. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. Pro. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R. Civ. Pro. 56(c)(4). Failure to properly support afact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially the grant of summary judgment. Fed. R. Civ. Pro. 56(e).

The Court need only consider the cited materials, Fed. R. Civ. Pro. 56(c)(3), and the Seventh Circuit Court of Appeals has "repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them," Johnson v. Cambridge Indus., 325 F.3d 892, 898 (7th Cir. 2003). Furthermore, reliance on the pleadings or conclusory statements backed by inadmissible evidence is insufficient to create an issue of material fact on summary judgment. Id. at 901.

The key inquiry, then, is whether admissible evidence exists to support a plaintiff's claims or a defendant's affirmative defenses, not the weight or credibility of that evidence, both of which are assessments reserved to the trier of fact. See Schacht v. Wis. Dep't of Corrections, 175 F.3d 497, 504 (7th Cir. 1999). And when evaluating this inquiry, the Court must give the non-moving party the benefit of all reasonable inferences from the evidence submitted and resolve "any doubt as to the existence of a genuine issue for trial . . . against the moving party." Celotex, 477 U.S. at 330.

That cross-motions for summary judgment have been filed does not automatically mean that all questions of material fact have been resolved. Home Fed. Sav. Bank v. Ticor Title Ins. Co., 2011 U.S. Dist. LEXIS 110368, *2 (S.D. Ind. 2011). The Court must evaluate each motion independently, making all reasonable inferences in favor of the nonmoving party with respect to each motion. Id.

After having assessed the claims of the parties in accordance with the standards outlined above, the Court concludes that Omega is entitled to summary judgment. Therefore, the Courthas made all reasonable factual inferences in favor of Colonial, Mr. Reed, Mr. Hall, and Ms. Bowman. See Celotex, 477 U.S. at 330 n.2.

III.DISCUSSION

Omega argues in support of its summary judgment motion and in opposition to Colonial's summary judgment motion that coverage for any claims by Mr. Reed, Mr. Hall, or Ms. Bowman is precluded under the Policy's Assault and/or Battery Exclusion and Total Liquor Exclusion. [Dkts. 43 at 8-11; 50 at 3-8; 52 at 4-9.] Omega also asserts that the Policy's coverage is not illusory, that Colonial was well aware of those exclusions when it purchased the Policy, and that its summary judgment motion is not premature. [Dkts. 43 at 11-19; 52 at 1-3, 9-15.]

Colonial and Mr. Reed argue in response to Omega's summary judgment motion, and Colonial argues in support of its own summary judgment motion, that Omega's summary judgment motion is premature because Mr. Reed, Mr. Hall, and Ms. Bowman had not yet filed complaints against Colonial, there is no evidence that any Policy exclusions apply, the...