QBE Ins. Corp. v. Whispering Pines Cemetery, LLC
| Decision Date | 25 February 2013 |
| Docket Number | CIVIL ACTION NO. 12-0054-KD-C |
| Parties | QBE INSURANCE CORPORATION, Plaintiff/Counterdefendant, v. WHISPERING PINES CEMETERY, LLC, QUEEN PETTWAY, CARLIS EATON, ROSIE MAY ABRAMS, COURTNEY VASHAY ABRAMS, JERMAINE ABRAMS, TAMARA MARTIN, and LESESTER WILLIAMS, Defendants/counterclaimants. |
| Court | U.S. District Court — Southern District of Alabama |
This declaratory judgment action based on diversity of citizenship is before the Court on the motion for summary judgment filed by plaintiff QBE Insurance Corporation and supporting documents (docs. 68-71), the response filed by Martin and Williams (doc. 73), the response and supporting documents filed by Queen Pettway, Carlis Eaton, Rosie Mae Abrams, Courtney Vashay Abrams, and Jermaine Abrams (doc. 74, 75), and QBE's reply (doc. 78); and the Abrams' motion to strike the evidence in support of QBE's reply (doc. 79) and QBE's response (doc. 81).1 Upon consideration and for the reasons set forth herein, QBE's motion for summary judgment is DENIED.
QBE issued a Commercial General Liability policy to Whispering Pines Cemetery, LLC. Defendants Queen Pettway and Carlis Eaton; Rosie May Abrams, Courtney Vashay Abrams, andJermaine Abrams; and Tamara Martin and Lesester Williams filed three separate lawsuits in the Circuit Court of Mobile County, Alabama, against the funeral homes involved with the respective funerals and Whispering Pines. As to Whispering Pines, defendants brought claims of negligence, wantonness, outrage, and breach of contract based upon Whispering Pines' failure to keep and maintain adequate records of the locations where their respective family members are buried. Defendants seek compensatory and punitive damages for mental anguish and emotional distress.
Defendants Pettway and Eaton are the daughter and grandson of Reverend Joseph R. Pettway who was buried in Whispering Pines in September 2004. After the monument was set for Reverend Pettway's grave in October 2009, his family discovered that it was not set where he was buried but had been placed in another location a considerable distance away from where they remembered his grave side service was held. Pettway and Eaton allege that the monument was placed over the wrong grave. (Doc. 1-1, Pettway and Eaton's first amended complaint)
Defendants Williams and Martin are the family members of Steven Prince, Sr., Emma Lee Prince, Steven Prince, Jr., and William Mae Mobley who were buried at Whispering Pines in 1996, 1990, 2000, and 2004, respectively. Approximately two weeks before Mother's Day in 2009, Martin contacted Whispering Pines to locate her mother Emma Lee Prince's grave to place a monument. She also asked for the section and lot number of the graves of her father and siblings. Whispering Pines was unable to tell her where her mother was buried but did provide the information as to her father and siblings. (Doc. 63-1, second amended complaint in the state court action)
In addition to negligence, wantonness, outrage and breach of contract, defendants Williams and Martin also claim fraudulent suppression and misrepresentation. Id. Williams and Martin base this claim on Whispering Pines' representation that it knew where Emma Lee Prince's grave was located, when it did not have any records of the location, and on Whispering Pines' duty to inform Williams and Martin that the location could not be identified because of its failure to keep and maintain accurate records of the gravesites. Id. Martin and Williams also allege that they are notbringing any claims related to the actual burial of their family members but raise their claims only as to Whispering Pines' failure to keep and maintain accurate records as to where their family member were buried. Id.
Defendant Rosie Mae Abrams is the wife of Bud Johnson Abrams who was buried in Whispering Pines in September 2007. Defendants Courtney and Jermaine are their children. After the monument was set for Mr. Abrams' grave in 2009, his family discovered that it was not set where he was buried. The Abrams notified Whispering Pines. Ultimately, after Whispering Pines denied any mistake, the remains where the monument was set were exhumed and found to be those of Johnny Jackson, Jr. Thereafter, Mr. Abrams' remains were exhumed from another location. Jermaine viewed and identified the remains of his father. (Docs. 1-2 through 8, Abrams' complaint and amended complaints) (The Jackson family settled their lawsuit in December 2011. (Doc. 1, p. 11, n. 2)
After this declaratory judgment action was filed, the Abrams family obtained a default judgment in the amount of $2,500,000.00 in their state court action against Whispering Pines. The Abrams family dismissed their claim for breach of contract and Rosie Mae, Courtney and Jermaine Abrams were awarded compensatory damages in the amount of $500,000 each for their claims of negligence, wantonness, and outrage. Punitive damages were awarded in the total amount of $1,000,000.00 (Doc. 75-1, Judgment) The Abrams family garnished QBE as Whispering Pines' insurance carrier. QBE removed the garnishment proceeding to this Court. Pettway and Eaton's and Martin and Williams' state court actions remain pending in the state court.
QBE seeks a declaratory judgment that it does not owe any coverage or defense to Whispering Pines. In its complaint, QBE asserts four theories as to why coverage or a defense is not owed: 1) The Funeral Services Exclusion applies to claims arising out of the burial, handlingor disposal of a body; 2) some of the claims did not occur during the policy period;2 3) the claims arise from intentional conduct and thus are not an "occurrence" as defined in the policy; and 4) as to the claims for breach of contract, the policy contains a contractual liability exclusion which excludes claims based on liability assumed in a contract.3 (Doc. 1) Defendants answered and counterclaimed for declaratory relief. (Docs. 12, 15)
Section 1 of the policy addresses coverage. In paragraph 1, captioned "Insuring Agreement", the policy states in relevant part, as follows:
In paragraph 2, captioned "Exclusions", the policy states as follows:
This insurance does not apply to (a) Expected or Intended Injury. "Bodily injury" or "property damage" expected or intended from the standpoint of the insured.
Section V, contains the definitions applicable to the policy. "'Bodily injury' means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time." (Doc. 1-10, p. 25) "'Occurrence' means an accident, including continuous or repeated exposure to substantially the same general harmful conditions." (Doc. 1-10, p. 27)
The policy issued to Whispering Pines contains a Funeral Services Exclusion endorsement that provides as follows:
A. Jurisdiction and venue
This Court has jurisdiction pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 and diversity jurisdiction pursuant to 28 U.S.C. § 1332. Venue is proper because the events giving rise to this action occurred in the Southern District of Alabama. 28 U.S.C. § 1391(b)(2) ()
B. Choice of law
The substantive law of the State of Alabama applies to this diversity action. Manuel v. Convergys Corp., 430 F.3d 1132, 1139 (11th Cir. 2005) () (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). In that regard, the substantive law of Alabama follows the traditional conflict-of-law principles of lex loci contractus and lex loci delicti. Lifestar Response of Ala., Inc. v. Admiral Ins. Co., 17 So. 3d 200, 213 (Ala. 2009). The parties do not dispute that the insurance contract was made in Alabama or that Alabama was the site of the conduct giving rise to the torts alleged. See Colonial Life & Accident Ins. Co. v. Hartford Fire Ins. Co., 358 F.3d 1306, 1308 (11th Cir. 2004)("The doctrine [of lex loci contractus] states that a contract is governed by the laws of the state where it is made except where the parties have legally contracted with reference to the laws of another jurisdiction.") (citing Cherry, Bekaert & Holland v. Brown, 582 So. 2d 502, 506 (Ala. 1991)) (internal quotations omitted); Cincinnati Ins. Co. v. Girod, 570 So. 2d 595, 597 (Ala. 1990)) ("Because this dispute involves an interpretation of an insurance policy issued in the State of Alabama, under Alabama's conflicts of law rule the trial court would be...
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