Travelers Prop. Cas. Co. of Am. v. Moore

• Decision Date: 14 August 2014
• Docket Number: No. 13–14413.,13–14413.
• Citation: 763 F.3d 1265
• Parties: TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, Plaintiff–Appellant, v. Justin Maurice MOORE, Willie Thackston, The Estate of Brandon Thomas, Brandy Thomas, surviving spouse of Brandon Thomas, deceased, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

763 F.3d 1265

TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, Plaintiff–Appellant,

v.Justin Maurice MOORE, Willie Thackston, The Estate of Brandon Thomas, Brandy Thomas, surviving spouse of Brandon Thomas, deceased, Defendants–Appellees.

No. 13–14413.

United States Court of Appeals,Eleventh Circuit.

Aug. 14, 2014.

David M. Atkinson, Ariel E. Shapiro, Magill Atkinson Dermer, LLP, Atlanta, GA, for Plaintiff–Appellant.

Michael D. Goodman, Goodman & Goodman, LLP, Vincent R. Lauria, Law Office of Vincent R. Lauria, Atlanta, GA, for Defendants–Appellees.

Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 1:11–cv–00236–AT.

Before JORDAN, Circuit Judge, and BARTLE,^* and BERMAN, ^** District Judges.

BARTLE, District Judge:

Plaintiff Travelers Property Casualty Company of America (“Travelers”) seeks a declaratory judgment that there is no coverage for and thus no duty to indemnify defendant Justin Maurice Moore (“Moore”) under his employer's commercial automobile insurance policy (Travelers Policy No. TC2JCAP–101D6235) for an incident which is the subject of underlying tort actions pending in the Georgia state court. See28 U.S.C. §§ 1332(a) and 2201. In those actions, Moore is being sued for killing Brandon Thomas (“Thomas”) and wounding Willie Thackston (“Thackston”) with a shotgun while Moore was chasing them in his employer's van as they were in the process of repossessing Moore's car. Moore, Thackston, the Estate of Brandon Thomas, and Thomas's surviving spouse, Brandy Thomas, all parties in the state court actions, are the defendants here.¹

The District Court first granted partial summary judgment in favor of the defendants and against Travelers. It determined as a matter of law that Moore had permission to use the van at the time of the incident and thus was an insured under the policy. It then found, after a nonjury trial, that the death of Thomas and shooting of Thackston was an “accident” as that term is used in the Travelers policy and that Moore neither “expected” nor “intended” Thomas's death or Thackston's injuries. As a result of these decisions, the District Court declared that coverage existed. Judgment was entered accordingly in favor of the defendants and against Travelers, and Travelers has now appealed.

I

The decision of a district court on summary judgment is reviewed de novo. Layton v. DHL Express (USA), Inc., 686 F.3d 1172, 1175 (11th Cir.2012). Summary judgment is appropriate “if the movant shows that there is no 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When ruling on a motion for summary judgment, “we resolve all ambiguities and draw reasonable factual inferences from the evidence in the non-movant's favor.” Layton, 686 F.3d at 1175 (citing Rice–Lamar v. City of Fort Lauderdale, 232 F.3d 836, 840 (11th Cir.2000)).

With regard to the bench trial, we review the District Court's findings of fact on a clear error standard and its conclusions of law de novo.Crystal Entm't & Filmworks, Inc. v. Jurado, 643 F.3d 1313, 1319 (11th Cir.2011). “Under the clear error standard, we may reverse the district court's findings of fact if, after viewing all the evidence, we are left with the definite and firm conviction that a mistake has been committed.” Id. at 1319–20 (internal quotation marks omitted).

II

The facts relevant to this appeal are largely undisputed.² On November 12, 2009, Thackston and Thomas arrived at Moore's home in Atlanta in a tow truck seeking to repossess Moore's personal vehicle, a Ford Mustang. The Mustang was parked in the driveway along with a van provided to Moore by his employer, GTECH Corporation (“GTECH”).

Upon arrival at Moore's residence, Thomas knocked on the door and had a conversation with the person who answered, after which Thomas and Thackston proceeded to attach the Mustang to the tow-boom of their truck. As they were doing so, Moore appeared outside with a loaded sawed-off shotgun and fired a shot into the air. The weapon was a pump-action model, which requires the shooter manually to cycle the action between each firing to eject the spent shell casing and chamber a new cartridge. Moore fired three more rounds, two of which hit the boom of the tow truck. The last shot blew out the truck's front, passenger-side tire. Beating a hasty retreat, Thackston drove away on the flat tire with Thomas in the passenger's seat and the Mustang in tow. Moore retrieved the keys to the GTECH van and gave chase, during which he pointed the shotgun out of the driver-side window.

When Thackston realized that Moore was in pursuit, he began swerving the truck back and forth across the road, hoping to prevent the van from coming alongside for another shotgun blast. Despite these maneuvers, the GTECH van drew up to the truck's passenger side as the vehicles entered a cul-de-sac. The truck contacted the van at between twenty-five and thirty-five miles per hour, and the shotgun went off a fifth and final time.

While the District Court found that Moore shot his victims unintentionally, it is undisputed that the weapon fired because Moore had his finger on the trigger. The blast killed Thomas, and Thackston sustained non-fatal wounds. Moore fled the scene in the van and returned shortly thereafter. Brandishing his shotgun, he compelled Thackston to lower the Mustang off of the tow-boom. Moore fled in the car, and Thackston hid in the woods nearby. Moore was apprehended in the following days.

On December 6, 2010, a jury found Moore guilty of felony murder, aggravated assault with a deadly weapon, and other associated offenses.³ He was sentenced to life imprisonment, and the Supreme Court of Georgia affirmed. See Moore v. State, 294 Ga. 450, 754 S.E.2d 333, 335 (2014).⁴

On June 10, 2008 before taking possession of the van, Moore signed a GTECH Fleet Policy Acknowledgment Form. He acknowledged reading the GTECH Corporation Fleet Policy especially as it pertained to “complying with restrictions on personal use of the company vehicle.” The Acknowledgment Form also contained, above his signature, a check mark beside the words “Personal Use Not Authorized.” The Corporate Fleet Policy, which Moore confirmed he had read, stated, “Non-exempt employees are provided a vehicle as a tool to do the job, and are not permitted to use the vehicle for personal use.” According to the testimony of James Benton, Moore's immediate supervisor who had witnessed Moore's signature, GTECH's policy against personal use was so strict that employees were not even permitted to fuel a company vehicle outside of business hours. Benton also stated that Moore did not have permission to chase down Thomas and Thackston in GTECH's van as they were repossessing his Mustang.

GTECH is headquartered in Rhode Island and installs and services lottery machines in Georgia. Moore was employed by GTECH as a service technician and was supplied with the van for his commute to a central company location and for travel to and from installation sites.

There are a number of extant records related to Moore's use of the company van. Moore maintained a service log, which contains a list of the addresses where he was engaged in the installation of lottery machines on specific dates. A series of regular gasoline records also exists showing odometer readings and the amounts of fuel purchased on a given date. Based on this documentation, the defendants calculate that over half of the mileage accrued during the time Moore operated the van could not be associated with any work assignment on the service log. There is some question, however, as to the completeness of these records given that all work assignments were not required to be noted in the log.

The Travelers insurance policy that covered the use of the van was delivered to GTECH at its office in Rhode Island and went into effect on October 1, 2009. It provides in relevant part:

We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from the ownership, maintenance or use of a covered “auto.”

The following are “insureds”:

[a]nyone ... while using with your permission a covered “auto” you own, hire, or borrow ...

The policy carves out an exclusion:

This insurance does not apply to “bodily injury” or “property damage” expected or intended from the standpoint of the “insured.” ⁵

III

On cross-motions for summary judgment the District Court ruled in favor of the defendants that Moore was an insured under the Travelers policy. The court reached this result because in its view Moore had the “permission” of GTECH to use the company van during the November 12, 2009 pursuit of Thomas and Thackston. Following a bench trial, the court found that the death of Thomas and the injuries to Thackston were the result of an “accident” and that the injuries were not “expected or intended” by Moore. Based on its summary judgment ruling and its findings of fact and conclusions of law, the District Court held that Travelers would be obligated to indemnify Moore under the insurance policy for any liability arising out of the encounter in issue.

Travelers argues that the District Court erred in concluding that: (1) Moore was an insured under the policy; (2) the death of Thomas and the shooting of Thackston were accidents; and (3) the harm these men suffered was not expected or intended by Moore. We turn first to the question whether Moore was an insured under the policy. For him to be an insured, the events in question must have occurred while he was using the van with GTECH's permission. If he was not an insured, there is no coverage and the remaining issues raised by Travelers are moot.

A federal court sitting in a diversity action applies state law using the choice of law rules...