Tower Ins. Co., Inc. v. Judge

• Decision Date: 17 December 1993
• Docket Number: 4-93-722.,Civ. No. 4-93-273
• Citation: 840 F. Supp. 679
• Parties: TOWER INSURANCE COMPANY, INC., Plaintiff, v. John Paul JUDGE, Maurice A. Meyer, as Trustee for the Heirs of Christopher Maurice Meyer, deceased; Richard Brent Balster, Chad Allen Mann, Jacen John Axelrod, Defendants. Maurice A. MEYER, Counter-Claimant, v. TOWER INSURANCE COMPANY, INC., Counter-Defendant. SECURA INSURANCE COMPANY, a mutual company f/k/a Home Mutual Insurance Company, Plaintiff, v. Richard Brent BALSTER, John Paul Judge, Chad Alen Mann, Jacen John Axelrod, Maurice A. Meyer, Trustee for the heirs of Christopher Maurice Meyer, deceased, Defendants. Maurice A. MEYER, Counter-Claimant, v. SECURA INSURANCE COMPANY f/k/a Home Mutual Insurance Company, Counter-Defendant.
• Court: U.S. District Court — District of Minnesota

840 F. Supp. 679

TOWER INSURANCE COMPANY, INC., Plaintiff, v. John Paul JUDGE, Maurice A. Meyer, as Trustee for the Heirs of Christopher Maurice Meyer, deceased; Richard Brent Balster, Chad Allen Mann, Jacen John Axelrod, Defendants.

Maurice A. MEYER, Counter-Claimant, v. TOWER INSURANCE COMPANY, INC., Counter-Defendant.

SECURA INSURANCE COMPANY, a mutual company f/k/a Home Mutual Insurance Company, Plaintiff, v. Richard Brent BALSTER, John Paul Judge, Chad Alen Mann, Jacen John Axelrod, Maurice A. Meyer, Trustee for the heirs of Christopher Maurice Meyer, deceased, Defendants.

Maurice A. MEYER, Counter-Claimant, v. SECURA INSURANCE COMPANY f/k/a Home Mutual Insurance Company, Counter-Defendant.

Civ. Nos. 4-93-273, 4-93-722.

United States District Court, D. Minnesota, Fourth Division.

December 17, 1993.

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Dale M. Wagner, Louis J. Speltz, and Peter A. Koller, Moss & Barnett, Minneapolis, MN, for plaintiff Tower Ins. Co., Inc.

Susan D. Thurmer, Spence, Ricke & Thurmer, St. Paul, MN, for plaintiff Secura Ins. Co.

Dylan J. McFarland and Fred Burstein, Fred Burstein & Associates, Minneapolis, MN, for defendant John Paul Judge.

Mark H. Gruesner, Schwebel, Goetz & Sieben, Minneapolis, MN, for defendant Maurice A. Meyer.

Earl P. Gray, Gray & Malacko, St. Paul, MN, for defendant Richard Brent Balster.

MEMORANDUM AND ORDER

MacLAUGHLIN, District Judge.

This matter is before the Court on various cross-motions for summary judgment.

FACTS

The undisputed facts in this case are tragic and sad. On August 28, 1992, a group of young people from Hastings, Minnesota, traveled to a trailer home in Wisconsin that was owned by a member of the group's father. The group brought a large amount of alcohol with them. Among those that went to Wisconsin were Christopher M. Meyer, Richard B. Balster, John P. Judge, Jacen J. Axelrod, and Chad A. Mann. These five young men were all nineteen years of age, had graduated together from Hastings High School the year before, and had been friends for many years.

The group arrived at the trailer home on Friday, August 28, 1992, consumed alcohol, and then went to bed. The next day the group began drinking early and drank throughout the day and into the night. Sometime during the evening, Meyer passed out on the front lawn. Around midnight, Meyer woke up and made his way inside and into a bedroom. Balster later went into the bedroom and attempted to wake Meyer by talking to him and shaking him, but Meyer did not awaken. Judge then went to check on Meyer. When Judge turned on the light in the bedroom he received a shock, after which he noticed that the light switch was hanging from the wall and the cover plate was not attached.

Judge, Mann, Axelrod, and Balster then collectively decided to try to "shock" Meyer awake. Mann retrieved some speaker wire and a wire stripper from his automobile. After stripping the ends of the speaker wire, the group tested it electrically and did not receive any shock. They concluded that the wire was not heavy enough to carry the current. The group then retrieved some heavier speaker wire from the kitchen and stripped the ends of it. The speaker wire actually consisted of two wires which ran side by side and which were individually insulated. After testing the wire on themselves and experiencing shocks, the group attached one wire to Meyer's ankle and the other to his wrist. However, before the group attached the opposite ends of the wires to the light switch terminal, they discussed whether a shock might harm Meyer. Judge's father is a master electrician and Judge had worked for his father in the past. The group asked Judge about the potential danger. Judge responded that there was no danger because the circuit carried only 110 volts and because the shocks would be brief in duration.

The group then attached the opposite ends of the wires to the light switch terminal. The group proceeded to turn the light switch on and off several times. After receiving little reaction from Meyer, the group returned to the kitchen with the light switch off. Over a period of approximately twenty minutes, Balster, Judge, and Mann would occasionally return to the room and flick the switch one or more times. After twenty minutes Balster checked on Meyer and noticed that he looked pale, his lips had turned blue, and he had stopped breathing. Balster immediately yelled to the rest of the group. The group unhooked the wires and carried Meyer into the kitchen. Balster and Judge attempted to revive Meyer with cardiopulmonary resuscitation (CPR). The group then loaded Meyer into the back of a pickup truck and drove to a hospital, continuing to perform CPR on the way. Meyer was pronounced dead at 1:30 a.m. on August 30, 1992.

The autopsy report determined the cause of death to be electrocution.¹ After learning that Meyer had been hooked up to the light switch terminal, the police had an electrician inspect the premises. The electrician determined that the light switch had been wired in such a way that when it was in the on position, no electric current flowed into Meyer. Instead, current was constantly flowing into Meyer the entire time that the light switch was in the off position.

The State of Wisconsin brought criminal charges against Judge, Balster, and Mann. The three were charged with second degree reckless homicide, endangering safety by use of a dangerous weapon, and battery. On July 13, 1993, the three pled no contest on all counts. However, the Wisconsin court accepted the no contest pleas on only the endangering safety and battery counts. The court deferred acceptance of the reckless homicide no contest pleas for a period of three years with the proviso that if they engaged in any criminal conduct within three years, the court would accept those pleas without a hearing and would sentence the defendants accordingly.

Maurice A. Meyer, as trustee for the heirs of Christopher M. Meyer, has brought a wrongful death action against Balster, Judge, Mann, and Axelrod in Dakota County District Court. Balster and Judge have tendered the defense of that action to their respective insurance companies. Balster's parents have a homeowner's insurance policy with Secura Insurance Company and Judge's parents have a homeowner's policy with Tower Insurance Company. There is no dispute that Balster and Judge qualify as insureds under these policies. Both policies provide that "if a claim is made or a suit is brought against an insured for damages because of bodily injury ... caused by an occurrence," coverage is available. Affidavit of Susan Thurmer Exh. 13 at 11; Affidavit of Dale M. Wagner Exh. 12 at 10. "Occurrence" means an "accident" which results in bodily injury. Thurmer Aff. Exh. 13 at 1; Wagner Aff. Exh. 12 at 1. However, the policies do not define "accident." The policies also contain several coverage exclusions. Most important, the original policies "do not apply to bodily injury ... which is expected or intended by the insured." Thurmer Aff. Exh. 13 at 12; Wagner Aff. Exh. 12 at 11 (emphasis added). Secura subsequently amended its policy to broaden the exclusions for bodily injury "which: (1) is expected or intended by an insured; (2) may reasonably be expected to result from the intentional acts of an insured; or (3) result from the criminal acts of an insured." Thurmer Aff. Exh. 13. Tower did not amend its policy similarly.

The insurance companies have undertaken Balster's and Judge's defenses in the wrongful death action in state court subject to a reservation of rights. Secura and Tower filed these declaratory judgment actions seeking declarations that the policies do not provide coverage.² In their complaints, Tower and Secura name Balster, Judge, Mann, Axelrod, and Meyer's estate as defendants. Secura and Tower have now moved for summary judgment in their respective actions. Meyer's estate has filed memorandums in opposition to both Secura's and Tower's motions. Judge, insured by Tower, has filed a memorandum in opposition to Tower's motion, but Balster, insured by Secura, has not filed a memorandum in opposition to Secura's motion.³ In addition to responding to the insurance companies' motions, Meyer's estate has filed cross-motions for summary judgment in both actions, and Judge has cross-moved for summary judgment in Tower's action.

DISCUSSION

I. Summary Judgment Standard

A movant is not entitled to summary judgment unless the movant can show that no genuine issue exists as to any material fact. Fed.R.Civ.P. 56(c). In considering a summary judgment motion, a court must determine whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The role of a court is not to weigh the evidence but instead to determine whether, as a matter of law, a genuine factual conflict exists. AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir.1987). "In making this determination, the court is required to view the evidence in the light most favorable to the nonmoving party and to give that party the benefit of all reasonable inferences to be drawn from the facts." AgriStor Leasing, 826 F.2d at 734. When a motion for summary judgment is properly made and supported with affidavits or other evidence as provided in Fed.R.Civ.P. 56(c), then the nonmoving party may not merely rest upon the allegations or denials of the party's pleading, but must set forth specific facts, by affidavits or otherwise, showing that there is a genuine issue for trial. Lomar Wholesale Grocery, Inc. v. Dieter's Gourmet Foods, Inc., 824 F.2d 582, 585 (8th Cir.1987), cert. denied, 484 U.S. 1010, 108 S.Ct. 707, 98 L.Ed.2d 658 (1988). Moreover, summary judgment must be entered against a party who fails to make a showing sufficient to establish the existence of...