Robinson v. Hudson Speciality Ins. Grp.

• Decision Date: 22 October 2013
• Docket Number: Civil Action No. 13–00114–KD–M.
• Citation: 984 F.Supp.2d 1199
• Parties: Marcus James ROBINSON, Plaintiff, v. HUDSON SPECIALITY INSURANCE GROUP, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

984 F.Supp.2d 1199

Marcus James ROBINSON, Plaintiff,
v.
HUDSON SPECIALITY INSURANCE GROUP, et al., Defendants.

Civil Action No. 13–00114–KD–M.

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

Oct. 22, 2013.

[984 F.Supp.2d 1201]

James J. Dailey, Joseph Allan Brown, McCormick & Brown, Joseph Frederick McGowin, IV, Law Office of J. Allan Brown, Mobile, AL, for Plaintiff.

Jannea S. Rogers, Nicholas F. Morisani, R. Scott Hetrick, Neal C. Townsend, Adams & Reese, LLP, Mobile, AL, Stephen E. Whitehead, Graham R. Pulvere, Lloyd, Gray & Whitehead, P.C., Birmingham, AL, for Defendants.

ORDER
KRISTI K. DuBOSE, District Judge.

This matter is before the Court on Defendant Hudson's Motion for Summary Judgment (Docs. 30–31), Plaintiffs Response (Docs. 43–44), and Hudson's Reply (Doc. 47); and Defendant Colony's Motion for Summary Judgment (Docs. 38–39), Plaintiff's Response (Doc. 48), and Defendant's Reply (Doc. 49).

I. Findings of Fact¹& Procedural Background

On the evening of November 8, 2009, Plaintiff Marcus Robinson (“Robinson”) joined a group of friends at a Mobile, Alabama nightclub called “Club Atlantis.” The night out, to celebrate a friend's birthday, proved nearly fatal. While leaving Club Atlantis, two (2) unknown men shot Robinson twice with a .25 caliber gun and three times with a .38 caliber gun. Robinson survived, but was left with significant and permanent injuries to his abdomen, left chest/lung, left flank, and left arm. This case concerns the litigation which ensued.

Specifically, on October 19, 2011, Robinson filed suit in the Circuit Court of Mobile County, Alabama against Crown Theater,

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Inc. (“Crown Theater”) (the entity which owns Club Atlantis) and other defendants, asserting claims for negligence, wantonness, negligent/wanton training, monitoring and supervision of employees, joint venture, breach of contract third-party beneficiary, and for violating Alabama's Dram Shop Act (CV 2011–902312). (Doc. 39–1). Crown Theater notified its insurers (Hudson Specialty Insurance Group, Inc. (“Hudson”) and Colony Insurance Company, Inc. (“Colony”)) ² and requested a defense and indemnity under its insurance policies for any judgment that might be rendered against it. The insurers denied coverage and refused to defend Crown Theater. On November 1, 2011, Hudson specifically denied coverage on the basis of an absolute assault/battery exclusion in its liquor liability policy with Crown Theater. (Doc. 30–1). The case was tried via bench trial and on September 18, 2012, judgment was rendered in favor of Crown Theater on Robinson's claims for assault, battery and wantonness; and in favor of Robinson and against Crown Theater, for negligence and under the Alabama Dram Shop Act in the amount of $500,000. (Doc. 39–2).

On September 18, 2012, the underlying action for direct action/garnishment was initiated by Robinson against Hudson, Colony, and other fictitious defendants, in the Circuit Court of Mobile County, Alabama (CV–2013–900249). (Doc. 1–1). Filed pursuant to Ala. Code § 27–23–2 ³ (1975), Robinson seeks garnishment and collection of the insurance money—that he asserts is owed to him under the relevant insurance policies—to satisfy the $500,000 judgment rendered by the state court against Crown Theater in CV 2011–902312. ( Id. at 4). Robinson contends that the claims upon which judgment was rendered (negligence and the Alabama Dram Shop Act) are covered under the insurance policies issued to Crown Theater by Hudson and Colony. ( Id. at 3).

Defendants Hudson and Colony removed the case to this Court on the basis of diversity.⁴ Presently, Hudson moves for summary judgment on the grounds that the assault and battery exclusion, in the liquor liability insurance policy issued to Crown Theater, is absolute and bars recovery by Robinson. Colony moves for summary judgment on the basis that the assault and battery, liquor, and weapons exclusions, in the general commercial liability policy it issued to Crown Theater, present a complete bar to Robinson's coverage claims.

II. Conclusions of Law

“The court shall grant summary judgment if the movant shows that there is no

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genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Rule 56(c) provides as follows:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.

(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.

(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

Fed.R.Civ.P. Rule 56(c) (Dec. 2010).

The party seeking summary judgment bears “the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). The party seeking summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Clark, 929 F.2d at 608.

Once the moving party has satisfied its responsibility, the burden shifts to the nonmovant to show the existence of a genuine issue of material fact. Id. “In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determination of the truth of the matter. Instead, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBH–Siegen, 965 F.2d 994, 999 (11th Cir.1992) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–159, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). However, “[a] moving party is entitled to summary judgment if the nonmoving party has ‘failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.’ ” In re Walker, 48 F.3d 1161, 1163 (11th Cir.1995). Overall, the Court must “resolve all issues of material fact in favor of the [non-movant], and then determine the legal question of whether the [movant] is entitled to judgment as a matter of law under that version of the facts.” McDowell v. Brown, 392 F.3d 1283, 1288 (11th Cir.2004).

The applicable Rule 56 standard is not affected by the filing of cross-motions for summary judgment. See, e.g., Am. Bankers Ins. Group v. United States, 408 F.3d 1328, 1331 (11th Cir.2005);

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Gerling Global Reins. Corp. of Am. v. Gallagher, 267 F.3d 1228, 1233 (11th Cir.2001). “Cross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.” United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir.1984) (citation omitted). The Court is mindful that “[w]hen both parties move for summary judgment, the court must evaluate each motion on its own merits, resolving all reasonable inferences against the party whose motion is under consideration.” Muzzy Prods., Corp. v. Sullivan Indus., Inc., 194 F.Supp.2d 1360, 1378 (N.D.Ga.2002)). The Court has reviewed the facts submitted by each party and has made its own examination of the record.

A. Robinson's Claims

In Counts One and Two of Robinson's state court action, Robinson asserts that Crown Theater was negligent by allowing an unreasonably dangerous condition to exist and/or failing to maintain the premises in a reasonably safe condition (by causing or allowing weapons to be brought into the club and failing to warn of the foreseeable hazards and discover/ eliminate hazardous and/or unsafe conditions). Additionally, Robinson alleged that Crown Theater was negligent by allowing patrons to remain on the premises when their disorderly conduct had become “so obstreperous and aggressive ... that Defendants should have known that others were likely in danger[ ]” yet failed to demand that they leave the premises. In Counts Six and Seven, Robinson asserted that Crown Theater negligently violated Alabama's Dram Shop Act by giving the patrons alcohol while knowing they were intoxicated and causing disturbances, as well as by allowing them to be on the premises with weapons (and while serving them alcohol in an intoxicated state).

As noted supra, Robinson filed the present action pursuant to Alabama's direct-action statute, Section 27–23–2, Ala.Code (1975). Section 27–23–2 provides, in relevant part, that:

Upon the recovery of a final judgment against any person, firm, or corporation by any person ... for loss or damage on account of bodily injury ... if the defendant in such action was insured against the loss or damage at the time when the right of action arose, the...