United Statesa Cas. Ins. Co. v. Hancock
| Decision Date | 12 March 2014 |
| Docket Number | No. CIV 12-1062 RB/LAM,CIV 12-1062 RB/LAM |
| Parties | USAA CASUALTY INSURANCE COMPANY and GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY, Plaintiffs, v. THOMAS I. HANCOCK and the ESTATE OF JOSEPH THREADGILL, Defendants. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER is before the Court on Plaintiffs' Motion for Summary Judgment (Doc. 70), Defendant the Estate of Joseph Threadgill's (the Estate's) Motion for Summary Judgment (Doc. 71), and the Estate's Motion for Certification (Doc. 91). Jurisdiction arises under 28 U.S.C. § 1332. Having considered the submissions of counsel, the record, and relevant law, the Court grants Plaintiffs' motion and denies the Estate's motions.
Plaintiffs filed suit in this Court seeking a declaratory judgment that insurance policies issued by Plaintiffs do not provide coverage for Thomas Hancock's shooting Joseph Threadgill to death in the parking lot of a nightclub in Albuquerque, New Mexico. The Estate claims that Hancock's automobile insurance policy and Hancock's mother's homeowners' insurance policy cover the damages resulting from the shooting.
In their motion for summary judgment, Plaintiffs argue that: (1) no coverage exists under either policy because the shooting was neither an occurrence nor an accident; (2) the "expected and intended acts" exclusion applies; and (3) the "criminal acts" exclusion applies to bar coverage. (Doc. 70). In response to Plaintiffs' motion, and in support of its cross motion for summary judgment and motion for certification, the Estate argues that: (1) the perpetrator was unable to form the requisite intent due to intoxication or impairment; (2) questions of fact preclude summary judgment; and (3) the Court should certify to the New Mexico Supreme Court the question of whether an insurance company can claim the "intended and expected acts" exclusion when the intoxicated insured is unaware of his actions. (Docs. 71 and 91).
"The court shall grant summary judgment 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). In cases where the moving party will not bear the burden of persuasion at trial, it bears the initial responsibility of identifying an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). "If the movant meets this initial burden, the burden then shifts to the nonmovant to 'set forth specific facts' from which a rational trier of fact could find for the nonmovant." Libertarian Party of N.M. v. Herrera, 506 F.3d 1303, 1309 (10th Cir. 2007). When applying this standard, the court examines the record, makes all reasonable inferences, and views the facts in the light most favorable to the non-moving party. Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 34 (10th Cir. 2013).
The Court applies New Mexico substantive law in this diversity case. Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). Where no controlling state decision exists, the Court ascertains and applies New Mexico law and predicts what the New Mexico Supreme Court would do if faced with the specific issues. Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th Cir. 2003).
On August 27, 2011, Joseph Threadgill was employed as a doorman at TD's Showclub in Albuquerque, New Mexico. (Doc. 4). Thomas Hancock was a patron. (Id.) After Hancock got into a fight with other customers, doormen broke up the fight, escorted Hancock outside, and sat him on a bench. (Id.) Doorman Todd Williams spoke to Hancock, and Hancock appeared to be impaired and "out of it". (Deposition of Todd Williams at 70-71, Doc. 76-1). Threadgill tried to call Hancock a cab. (Id. at 86, 88, 89). A group of men exited the club and punched Hancock five or six times in the face. (Affidavit of Theresa LeFebre, Doc. 76-2). A doorman told Hancock that someone was coming to pick him up. (Id.) Hancock wandered into the parking lot and Threadgill followed. (LeFebre Aff.; Doc. 4). After reaching his vehicle, Hancock started shooting. (Id.; Doc. 70-1; Doc. 70-2; Doc. 76-2).
Larry Saunders was on the curb near the parking lot and observed Hancock shoot Threadgill. (Deposition of Larry Saunders at Doc. 76-3) After the initial shots, Threadgill fell to the ground. (Id.) Hancock fired several shots at the club, stepped over Threadgill, and shot Threadgill again. (Saunders Dep. at 86-89). Saunders saw that Hancock aimed the gun during the shooting. (Id. at 86).
The day after the shooting, Hancock told police that he remembered being at the club but he had some gaps in his memory. (Doc. 87-3). Hancock remembered he had two handguns in his car, a .357 and a .380. (Id.) He remembered "turning and firing [his] weapon at somebody." (Id.) Hancock thought he started shooting from inside his vehicle. (Id.) He stated that he used the second gun after the first gun ran out of bullets and he did not remember if he was still in his vehicle when he fired the second gun. (Id.) Hancock believed that he fired seven shots.1 (Id.)Hancock thought that he shot at a person but he did not know why he shot the person. (Id.) Hancock drove from the parking lot with the guns in his vehicle. (Id.) Police located Hancock at his mother's house a few hours after the shooting, arrested Hancock, and recovered two handguns in a cooler in his vehicle. (Id.)
Threadgill was transported by ambulance to University of New Mexico Hospital where he died from multiple gunshot wounds on August 27, 2011. (Doc. 4). Ross E. Zumwalt, M.D. of the Office of the Medical Investigator supervised Threadgill's autopsy and determined the manner of death was non-accidental homicide. (Deposition of Ross Zumwalt, M.D. at 4-5, Doc. 70-2). Dr. Zumwalt based this determination on the totality of the information surrounding the case, including circumstantial evidence, police reports, investigation reports, medical findings, and subsequent investigation. (Id.) In reaching the conclusion that the homicide was non-accidental,, Dr. Zumwalt found it significant that Threadgill was shot several times and sustained fatal wounds. (Id.)
Dr. Zumwalt testified that Threadgill sustained four gunshot wounds that were likely caused by three bullets. (Zumwalt Dep. at 7-8). The first shot hit the lateral aspect of the right forearm at fairly close range. (Zumwalt Dep. at 8). This bullet exited the other side of the forearm and re-entered the right upper chest and neck. (Id. at 8, 11-13). The second shot was not fired at close range and hit the left chest. (Id.) The third shot was to the back of the head. (Id. at 8). Dr. Zumwalt opined that the gunshot wound to the right arm and chest occurred when Threadgill's arm was extended, and the shot to the head occurred after the shot to the arm. (Id. at 8-9). The bullet to the head fractured Threadgill's skull and was recovered from his neck. (Id. at 10).
On September 17, 2011, a Bernalillo County Grand Jury issued an Indictment charging Hancock with one count of murder in the first degree (willful and deliberate), in violation of N.M.STAT. ANN. § 30-02-01(A)(1), one count of shooting at or from a motor vehicle (great bodily harm), in violation of N.M. STAT. ANN. § 30-03-08(B), and one count of tampering with evidence (highest crime a capital, first or second degree felony) in violation of N.M. STAT. ANN. § 30-22-05. (Doc. 4; Doc. 70-1). Hancock remains detained and awaits trial. See State of New Mexico v. Thomas I. Hancock, D-202-CR-201104244, Second Judicial District, Bernalillo County, New Mexico. Trial is set for October 24, 2014. (Id.)
USAA Casualty Insurance Company ("USAA") issued a homeowners' insurance policy to Pamela and Andrew Bosma with limits of $500,000.00 covering the period from June 11, 2011 to June 11, 2012. (Doc. 4). As Hancock lived with Ms. Bosma at the time of the incident, he qualifies as an insured under the homeowners' insurance policy. (Id.) Garrison Property and Casualty Insurance Company ("Garrison"), a wholly owned subsidiary of USAA, issued an automobile insurance policy to Hancock with liability limits of $25,000 per person and $50,000 per accident covering the period from July 18, 2011 to January 18, 2012. (Id.)
On September 21, 2012, the Estate demanded payment from Plaintiffs for the policy limits of both policies for damages arising from the wrongful death of Threadgill. (Id.) On October 15, 2012, Plaintiffs filed the instant suit in this Court under the federal Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, and the New Mexico Declaratory Judgment Act, N.M. STAT. ANN. §§ 44-6-1, et seq., seeking a declaration that the insurance policies do not cover damages arising out of the death of Threadgill.
The homeowners' policy provides personal liability coverage for claims or suits "broughtagainst any 'insured' for 'damages' because of 'bodily injury' . . . or 'personal injury' . . . caused by an 'occurrence' . . . ." (Doc. 4-1 at 31). The homeowners' policy defines "occurrence" as "[a]n accident . . . which results . . . in 'bodily injury'. . . ." (Id. at 8). The automobile policy provides liability coverage for "'bodily injury' for which any covered person becomes legally liable because of an auto accident." (Doc. 4-2 at 30). The policies do not define the word "accident."
The New Mexico Supreme Court has held that, when the word 'accident' is not defined in an insurance policy, 'the word must be interpreted in its usual, ordinary and popular sense.' " Vihstadt v. Travelers Ins. Co., 709 P.2d 187, 188 (N.M. 1985) (quoting Watson v. Western Cas. & Sur. Co., 382 P.2d 723, 725 (N.M. 1963)). In Vihstadt, the New Mexico Supreme Court discussed possible definitions of the word "accident," including: (1) "'an unlooked for mishap, or an untoward event which is not expected or designed,'" id. (quoting Webb v. New...
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