Penn-America Ins. Co. v. Mapp

• Decision Date: 17 November 2006
• Docket Number: Civil Action No. 2:06CV119.
• Citation: 461 F.Supp.2d 442
• Parties: PENN-AMERICA INSURANCE CO., Plaintiff, v. April Dawn MAPP and ACH Corporation of Chesapeake, Inc., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

461 F.Supp.2d 442

PENN-AMERICA INSURANCE CO., Plaintiff, v. April Dawn MAPP and ACH Corporation of Chesapeake, Inc., Defendants.

Civil Action No. 2:06CV119.

United States District Court, E.D. Virginia, Norfolk Division.

November 17, 2006.

COPYRIGHT MATERIAL OMITTED

Albert M. Orgain, IV, W. Ashley Burgess, Sands Anderson Marks & Miller PC, Richmond, VA, for Plaintiff.

Stephen E. Heretick, Portsmouth, VA, for Defendant April Dawn Mapp.

Brian K. Meals, McGuire Woods LLP, Norfolk, VA, for Defendant ACH Corporation of Chesapeake, Inc.

OPINION & ORDER

MORGAN, JR., Senior District Judge.

This action for declaratory judgment requires the Court to determine Plaintiff Penn-America Insurance Co.'s ("Plaintiff') financial liability in contract for litigation costs and damages in a parallel personal injury matter pending in the Circuit Court of the City of Portsmouth ("State Court" or "State Court Proceeding"). Defendant April Dawn Mapp ("Ms. Mapp") is suing Defendant ACH Corporation of Chesapeake, Inc. ("ACH") for negligence in State Court. ACH is the owner and operator of Three Cheers bar ("the bar"). Ms. Mapp alleges that ACH was negligent for failing to protect her from a known imminent danger; namely, an intoxicated patron who struck Ms. Mapp with his motorcycle in ACH's parking lot. Plaintiff argues that its contract with ACH does not cover the claims brought against ACH in the present State Court action, and therefore Plaintiff would not be obligated to pay for any judgment or costs of litigation. Doc. 1. Plaintiff filed a Motion for Summary Judgment, and Defendants have filed Cross-Motions in which they ask this Court; to find that Plaintiff has a duty to defend ACH against Ms. Mapp's claims in State Court.

At the hearing on these Motions, the parties agreed that the Court had authority to decide this matter on summary judgment because the parties are in agreement on all material facts. The Court will accordingly issue its decision based on the filings and argument before this Court.

The Court FINDS that: (1) jurisdiction is proper because the Court's decision will not impinge on the fact-finding of the jury in the parallel State Court Proceeding; (2) ACH's delay in providing notice to Plaintiff, was not material because the circumstances suggest that notice was not required immediately following the collision; (3) the liquor liability exclusion does not apply to Ms. Mapp's claims under a premises liability theory; (4) the Policy's punitive damage and limits of insurance provisions are clear and undisputed; and, (5) the facts are not ripe for the Court's decision on the matter of Plaintiff's duty to indemnify. Therefore, the Court FINDS that Plaintiff has a duty to defend ACH against Ms. Mapp's claims of premises liability.

I. PROCEDURAL HISTORY

Plaintiff filed its Complaint on March 6, 2006. Doc. 1. ACH filed its Answer on April 4, 2006. Doc. 4. Ms. Mapp's Answer was filed on April 7, 2006. Doc. 6. Plaintiff filed the instant Motion for Summary Judgment (Doc. 9) and Memorandum of Support (Doc. 10) on September 21, 2006.

ACH filed its Motion for Summary Judgment (Doc. 16) and Memorandum in Support of Motion for Summary Judgment and in Opposition to Plaintiff's Motion for Summary Judgment (Doc. 17) on October 4, 2006. On the same day, Ms. Mapp filed a Motion for Summary Judgment (Doc. 13) and Brief in Opposition to Plaintiffs Motion for Summary Judgment and in Support of Her Counter — Motion for Summary Judgment (Doc. 14). On October 10, 2006, Plaintiff filed its Brief in Reply to Defendants' Memoranda in Opposition to Plaintiffs Motion for Summary Judgment. Doc. 18. A separate Brief in Opposition to Defendants' Cross-Motion for Summary Judgment was filed on October 18, 2006. Doc. 20.

On October 19, 2006, Plaintiff filed its Statement of Undisputed Facts. Doc. 21. This Statement mirrors the facts contained in Plaintiffs Motion for Summary Judgment. Cf. Doc. 10 at 2-16; Doc. 21. On October 20, 2006, ACH filed its Statement of Undisputed Facts, referencing as undisputed those facts included in its Motion in Opposition to Plaintiffs Motion for Summary Judgment and Cross-Motion for Summary Judgment. Doc. 22 (facts 1-100 and 103-130 are undisputed; facts 101 and 102 are opinion, not fact). At the hearing, held October 23, 2006, counsel for Ms. Mapp agreed to stipulate to those facts included in Plaintiffs Statement of Undisputed Facts.

II. FACTUAL BACKGROUND

On the evening of July 4, 2003, Mr. Bristol and a friend, Timothy Dodd ("Mr. Dodd"), arrived at the bar on or about 9:30 p.m. by motorcycle. Doc. 10, Ex. 1 (Dep. Dodd) at 6-8. Several hours later, in the early morning hours of July 5, 2003, Ms. Mapp was struck by a motorcycle driven by Joshua Bristol ("Mr.Bristol") in front of Three Cheers bar ("the bar") in Portsmouth, Virginia. Doc. 10 at 1. The following is an account of the undisputed facts of that evening.

A. Events Surrounding the Collision

In anticipation of the bar's closing that evening, the disc jockey followed the usual procedures and made the last call for alcohol fifteen (15) minutes before closing. Doc. 10, Ex. 1 at 16; Ex. 5 (Dep.Jones) at 6; Ex. 6 (Dep.Hess) at 14; Ex. 7 (Dep.Ma. Fly) at 20. The bar closed at approximately 1:30 p.m. and the normal procedure was followed; all patrons were asked to leave the bar and were not let back in. Doc. 10, Ex. 2 at 11; Ex. 5 at 6; Ex. 6 at 15.

Upon exiting the bar, Mr. Bristol and Mr. Dodd were approached by three women who asked for rides on their motorcycles. Doc. 10, Ex. 1 at 20. These three women were Deborah Marie Fly ("Marie Fly"), Michelle Fly, and Ms. Mapp. Doc. 10, Ex. 7 at 21. Mr. Dodd declined the request, but Mr. Bristol agreed to give the women rides. Id. at 20.

Accounts of the accident confirm that when Mr. Bristol was giving Marie Fly a ride on his motorcycle, he rode through the parking lot in a weaving, looping, and curling fashion. Doc. 10, Ex. 7 at 29-34, 44-45. When approaching the front of the bar, Mr. Bristol drove so fast that Marie Fly grew nervous. Id. at 33. Mr. Bristol then briefly stopped the motorcycle before he "floored it," driving straight ahead along the driveway between the parking lot and the bar in the direction of the crowd of approximately fifteen (15) to twenty (20) people that had just exited the bar. Id. at 35, 37-38, 45; Ex. 6 at 17. Mr. Bristol is estimated by witnesses to have been traveling between fifteen (15) and fifty (50) miles per hour in the parking lot. Doc. 10, Ex. 1 at 24 (15-20 m.p.h.); Ex. 6 at 16-17 (50 m.p.h.); Ex. 10 (Dep. Jen Hess) at 9.

Accounts illustrate that Mr. Bristol first hit Ms. Mapp, then traveled a distance further before he and Marie Fly fell to the ground. Doc. 10, Ex. 1 at 24-26, 49; Ex. 2 at 14-16, 25; Ex. 6 at 8, 12, 20; Ex. 7 at 39. Ms. Mapp was seriously injured and does not remember any of the events of that evening, beyond going to the bar that night. Doc. 1, Ex. 1 ¶ 17; Doc. 10 at; Ex. 9 (Dep.Mapp) at 8, 11-12.

B. Mr. Bristol's Intoxication

The Court does not have to decide the extent of Mr. Bristol's intoxication, or whether his intoxication was a proximate cause of Ms. Mapp's injuries, at this stage of the proceedings. However, the Court notes that the parties have stipulated that Mr. Bristol had not had anything to drink before he arrived at the bar, that he had at least four (4) to five (5) drinks at the bar, that he appeared intoxicated after the collision, and that a blood test taken after the accident shows that his blood contained a blood alcohol concentration of 0.11% by weight by volume. See Doc. 10 at 5, 12; Doc. 10 at 9-10; Doc. 1, Ex. 2 (Dep.DaSilva) at 6-7; Doc. 10, Ex. 3 (Dep.Mi.Fly) at 9; Doc. 10, Ex. 13 (Dep.Doyle) at 11-12. Mr. Bristol further admits to drinking and driving on the night of the collision.¹

C. State Court Proceedings

Due to her injuries, Ms. Mapp filed a Motion for Judgment in the Circuit Court of the City of Portsmouth ("State Court Proceeding"), alleging negligent, gross, deliberate, and wanton conduct on the part of ACH. Doc. 1, Ex. 1 (Mapp Motion for Judgment) ¶¶ 15, 16. Ms. Mapp alleged that ACH's employees and agents sold alcohol to Mr. Bristol throughout the evening of July 4, 2003, rendering him intoxicated beyond a point where he could lawfully operate a motor vehicle. Id. ¶¶ 15, 6. She further alleged that ACH's employees and agents did so with notice that he would unlawfully operate a motor vehicle on its premises, and that ACH had "actual and constructive knowledge of an imminent probability of harm created thereby to its business invitees," including Ms. Mapp. Id. ¶ 12. Finally, by virtue of its notice and knowledge of this imminent probability of harm, Ms. Mapp claimed that ACH owed her, as an invitee, a duty of care to warn and protect her from imminent harm, but that no action was taken to protect or warn Ms. Mapp. Id. ¶¶ 13, 14. Thus, Ms. Mapp alleged that ACH, its agents and employees, "negligently and with ... indifference to its duty ... disregard[ed] the safety of ... Ms. Mapp," leading to her being "struck and run down by Bristol," from which she suffered severe and permanent injury. Id. ¶¶ 15-17.

Ms. Mapp seeks compensatory damages of $7.5 million and punitive damages of $2.5 million. Id. at ad damnum. On April 4, 2006, the State Court partially granted ACH's demurrer for any claims based on "dram shop" liability² or liability otherwise attributed to ACH for simply serving alcohol, because the Commonwealth of Virginia does not recognize "dram shop" liability against the seller of alcoholic beverages to third parties for actions of intoxicated tortfeasors. Doc. 10, EL 28 (Amended Order of the Circuit Court of Portsmouth). ACH's demurrer to all other claims was denied. Id.

D. Notice of Claim to Plaintiff Penn-America

ACH was a named insured under Penn-America commercial general liability policy number PAC 6283033 with a coverage period from February 1, 2003 to February 1, 2004 ("the Policy"). Doc. 10,...