Travelers Indem. Co. v. Forrest Cnty., CIVIL ACTION NO. 2:14-CV-22-KS-MTP
| Decision Date | 16 February 2016 |
| Docket Number | CIVIL ACTION NO. 2:14-CV-22-KS-MTP |
| Citation | 164 F.Supp.3d 899 |
| Parties | The Travelers Indemnity Company, et al., Plaintiffs v. Forrest County, et al., Defendants |
| Court | U.S. District Court — Southern District of Mississippi |
Charles Greg Copeland, Mary Jordan Kirkland, Copeland, Cook, Taylor & Bush, PA, Ridgeland, MS, Dennis M. Dolan, Laura L. Milnichuk, Litchfield Cavo, LLP, Chicago, IL, for Plaintiffs.
S. Robert Hammond, Jr., S. Robert Hammond, Jr., Attorney at Law, David B. Miller, Annie L. Amos, Annie L. Amos Law Offices, PLLC, Derek Royce Arrington, Jackson & Arrington, PLLC, Earl Lindsay Carter, Jr., Carter Law Office, PLLC, Scott Joseph Schwartz, Scott J. Schwartz, PA, Hattiesburg, MS, Charles E. Lawrence, Jr., CG Law Group, Crystal Wise Martin, Precious Tyrone Martin, Ratoya J. Gilmer, Suzanne Griggins Keys, Precious Martin, Sr. and Associates, PLLC, Jackson, MS, Alexander T. Brown, Michael J. Abrams, William G. Beck, Kevin M. McKenzie, Lathrop & Gage, LLP, Kansas City, MO, for Defendants.
Keith Starrett
For the reasons below, the Court grants the Motion for Leave to File [197] a sur-reply filed by Counter-Plaintiffs Mitchell, Smith, Strong, Dixon, and Ruffin; grants the Motion for Judgment on the Pleadings [134] filed by Counter-Defendants Swiss RE International, previously Zurich Specialties London Limited, and Gemini Insurance Company; and grants the Motion for Judgment on the Pleadings [223] filed by Counter-Defendant Steadfast Insurance Company.
This is a liability insurance coverage case arising from a civil rights lawsuit. The underlying plaintiffs are three individuals convicted of a crime they did not commit and the children of one the wrongfully convicted plaintiffs. They allege that law enforcement officers of the City of Hattiesburg, Mississippi, and Forrest County, Mississippi, coerced their false confessions through violence and threats of violence, fabricated evidence, ignored potentially exculpatory evidence, and otherwise conspired to prosecute them without probable cause—all motived by racial animus. These events happened over thirty years ago, and the wrongfully convicted plaintiffs were not exonerated until 2010 and 2011, after collectively spending eighty-three years in prison. They filed a lawsuit against Hattiesburg, Forrest County, and several individual law enforcement officers in their official and individual capacities. See Bivens v. Forrest County , No. 2:13–CV–8–KS–MTP, 2015 WL 1457529, 2015 U.S. Dist. LEXIS 40602 (S.D.Miss. March 30, 2015)
(). Of particular note to the present case, the Bivens Plaintiffs claim that the Bivens Defendants have committed continuing civil rights violations over the past thirty years by failing to come forward and rectify their earlier misconduct.
Several insurance companies—The Travelers Indemnity Company, The Travelers Indemnity Company of America, United States Fidelity and Guaranty Company, and St. Paul Fire and Marine Insurance Company (collectively, the “Travelers Insurers”)—filed a Complaint [1] in this Court seeking a declaratory judgment that they had no duty to defend or indemnify the Bivens
claims. The Travelers Insurers issued almost two dozen different liability policies to Forrest County from 1993-1999 and 2005-2014.
Defendants filed counterclaims [28, 32] against St. Paul Fire and Marine Insurance Company (“St. Paul”), claiming that St. Paul had breached its contractual duty to defend and indemnify them in the underlying suit. The Bivens Plaintiffs likewise filed counterclaims [62, 63] seeking a declaratory judgment that the Travelers Insurers have a contractual duty to defend and indemnify the Bivens Defendants against their civil rights claims. They also filed third-party claims [68] against Sirius America Insurance Company (“Sirius”), First Mercury Insurance Company (“First Mercury”), Great American E & S Insurance Company (“Great American”), Zurich Specialties London Limited (“Zurich”), Steadfast Insurance Company (“Steadfast”), and Gemini Insurance Company (“Gemini”), seeking declaratory judgments that each insurer was required to defend and indemnify the Bivens Defendants against their civil rights claims pursuant to liability policies issued at some point during the past thirty years. The Bivens Defendants then asserted their own third-party claims [71] against Sirius, First Mercury, Great American, Zurich, Steadfast, and Gemini.
Zurich1 and Steadfast filed Motions for Judgment on the Pleadings [134, 223] as to the third-party claims asserted by the Bivens
Plaintiffs and Defendants. The motions are ripe for review.2
Likewise, “a formulaic recitation of the elements of a cause of action will not do.” PSKS, Inc. v. Leegin Creative Leather Prods., Inc. , 615 F.3d 412, 417 (5th Cir.2010) (punctuation omitted). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009).
“[D]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to her claim.” Collins v. Morgan Stanley Dean Witter , 224 F.3d 496, 498 (5th Cir.2000)
. Therefore, the Court may permissibly consider the copies of the subject insurance policies attached to Counter-Defendants' motions [134-1, 134-2, 134-3, 134-4, 223-1, 223-2].
“Under Mississippi law, an insurer's duties to defend and indemnify its insured are distinct and separable duties requiring the use of different standards.” Estate of Bradley v. Royal Surplus Lines Ins. Co. , 647 F.3d 524, 529 (5th Cir.2011)
. To determine whether an insurance company has a duty to defend its policyholder against suit, the Court looks “at the facts alleged in the complaint, together with the policy.” Auto. Ins. Co. of Hartford v. Lipscomb , 75 So.3d 557, 559 (Miss.2011). “[A]n insurer's duty to defend is triggered when the allegations of the complaint reasonably bring a claim within the coverage of its policy.” Carl E. Woodward, L
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v. Acceptance Indem. Ins. Co. , 749 F.3d 395, 398 (5th Cir.2014) (quoting Baker Donelson Bearman & Caldwell, P.C. v. Muirhead , 920 So.2d 440, 451 (Miss.2006) ) (punctuation omitted). There is no duty to defend if “the alleged conduct falls outside the policy's coverage,” but if the insurer “becomes aware that the true facts, if established, present a claim against the insured which potentially would be covered under the policy, the insurer must provide a defense until it appears that the facts upon which liability is predicated fall outside the policy's coverage.” Lipscomb , 75 So.3d at 559.
“Unlike the duty to defend, which can be determined at the beginning of the lawsuit, an insurer's duty to indemnify generally cannot be ascertained until the completion of the litigation, when liability is established, if at all.” Bradley , 647 F.3d at 531
. “This is because, unlike the duty to defend, which turns on the pleadings and the policy, the duty to indemnify turns on the actual facts giving rise to liability in the underlying suit, and whether any damages caused by the insured and later proven at trial are covered by the policy.” Id. But “if there is no duty to defend, there can be no duty to indemnify.” Evanston Ins. Co. v. Neshoba Cnty. Fair Ass'n , 442 F.Supp.2d 344, 346 n. 1 (S.D.Miss.2006).
The Court's ultimate goal in applying an insurance policy is to “render a fair reading and interpretation of the policy by examining its express language and applying the ordinary and popular meaning to any undefined terms.” Corban v. United Servs. Auto. Ass'n , 20 So.3d 601, 609 (Miss.2009)
. “In Mississippi, insurance policies are contracts, and as such, they are to be enforced according to their provisions.” Id.
First, where an insurance policy is plain and unambiguous, a court must construe that instrument, like other contracts, exactly as written. Second, it reads the policy as a whole, thereby giving effect to all provisions. Third, it must read an insurance policy more strongly against the party drafting the policy and most favorably to the policy holder. Fourth, where it deems the terms of an insurance policy ambiguous or doubtful, it must interpret them most favorably to the insured and against the insurer. Fifth, when an insurance policy is subject to two equally reasonable interpretations, a court must adopt the one giving the greater indemnity to the insured. Sixth, where it discerns no practical difficulty in making the language of an insurance policy free from doubt, it must read any doubtful provision against the insurer. Seventh, it must interpret terms of insurance policies, particularly exclusion clauses, favorably to the insured wherever reasonably possible. Finally, although ambiguities of an...
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Travelers Indem. Co. v. Forrest Cnty.
...The Court previously discussed the case's background. See Travelers v. Forrest County , No. 2:14–CV–22–KS–MTP, 164 F.Supp.3d 899, 900 – 02, 2016 WL 626549, at *1–2, 2016 U.S. Dist. LEXIS 18288, at *6–*9 (S.D.Miss. Feb. 16, 2016) ; Bivens v. Forrest County , No. 2:13–CV–8–KS–MTP, 2015 WL 145......