Westfield Ins. Co. v. Hill

• Decision Date: 12 May 2011
• Docket Number: Cause No. 2:10–CV–123–TLS.
• Citation: 790 F.Supp.2d 855
• Parties: WESTFIELD INSURANCE COMPANY, Plaintiff,v.Robert H. HILL, et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

790 F.Supp.2d 855

WESTFIELD INSURANCE COMPANY, Plaintiff,

v.Robert H. HILL, et al., Defendants.

Cause No. 2:10–CV–123–TLS.

United States District Court, N.D. Indiana.

May 12, 2011.

Freedom V. Miller, Mark R. Smith, Smith Fisher Maas & Howard P.C., Indianapolis, IN, for Plaintiff.

John M. Rhame, III, Peter L. Boyles, Rhame & Elwood, Portage, IN, Doug A. Bernacchi, Attorney at Law, Michigan City, IN, for Defendants.

OPINION AND ORDER

THERESA L. SPRINGMANN, District Judge.

On March 17, 2010, Westfield Insurance Company filed a Complaint for Declaratory Judgment [ECF No. 1] against Defendants Robert Hill, Mildred Hill (the Hills), and Jane Roe, individually and as the Next Friend and Legal Guardian of John Doe, a minor. Westfield filed this declaratory action after the Hills requested that it defend and indemnify them pursuant to an insurance policy that Westfield issued to the Hills for a property located in LaPorte County, Indiana. The Hills had been sued by John Doe by his Next Friend and Legal Guardian Jane Roe in LaPorte Superior Court (the Lawsuit). The Lawsuit alleges that the Hills' negligent failure to supervise, inspect, and maintain their lake home property in a safe condition during social events at the property caused Doe and Roe to sustain injuries when Mark Comford, an individual attending these social events, sexually molested Doe.

Westfield is not a named party in the Lawsuit, but is currently defending the Hills pursuant to a full and complete reservation of rights. In a Motion for Summary Judgment Against Defendants [ECF No. 34], filed on January 4, 2011, Westfield requests that this Court declare that it has no duty under the insurance policy to defend the Hills or to indemnify the Hills against the Lawsuit. In response, the Hills maintain that Westfield has an obligation to defend and indemnify them against the Lawsuit because Roe makes an allegation that an assault and battery occurred on their property, that the Hills were unaware of Comford's history or actions, and they purchased insurance for protection from unknown and unforeseen events that could take place on their property. Roe, in a separate brief in response to Westfield's Motion for Summary Judgment, also argues that the Westfield policy provides coverage.

SUMMARY JUDGMENT STANDARD

The Federal Rules of Civil Procedure state that a “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). The motion should be granted so long as no rational fact finder could return a verdict in favor of the party opposing the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505; Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir.1994). The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also N.D. Ind. L.R. 56.1(a) (stating that the movant must provide a “Statement of Material Facts” that identifies the facts that the moving party contends are not genuinely disputed). In response, the nonmoving party cannot rest on bare pleadings alone but must use the evidentiary tools listed in Rule 56 to designate specific material facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir.2000); N.D. Ind. L.R. 56.1(b) (directing that a response in opposition to a motion for summary judgment must include “a section labeled ‘Statement of Genuine Disputes' that identifies the material facts that the party contends are genuinely disputed so as to make a trial necessary”). Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, the court must construe all facts in a light most favorable to the nonmoving party, view all reasonable inferences in that party's favor, see Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir.2000), and avoid “the temptation to decide which party's version of the facts is more likely true,” Shepherd v. Slater Steels Corp., 168 F.3d 998, 1009 (7th Cir.1999). See also Payne v. Pauley, 337 F.3d 767, 770 (7th Cir.2003) (noting the often stated proposition that “summary judgment cannot be used to resolve swearing contests between litigants”). A material fact must be outcome determinative under the governing law. Insolia, 216 F.3d at 598–99. “Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute.” Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir.2008).

STATEMENT OF FACTS

The facts of this case are undisputed. Although the Hills and Roe state in opposition to summary judgment that they have no knowledge of certain facts cited by Westfield, and therefore deny them, they do not “cit[e] to particular parts of materials in the record” in support of any claim that a fact is genuinely disputed, nor do they show that the materials cited by Westfield “do not establish the absence or presence of a genuine dispute, or that [Westfield] cannot produce admissible evidence to support the fact[s].” Fed.R.Civ.P. 56(c)(1). Accordingly, the Defendants have not pointed to admissible evidence in the summary judgment record that creates a genuine issue of material fact, and the Court may consider the facts cited by Westfield “undisputed for purposes of the motion.” Fed.R.Civ.P. 56(e)(2). The remaining question, then, is whether the undisputed facts presented by Westfield entitle it to judgment as a matter of law. See Fed.R.Civ.P. 56(e)(3).

A. The Underlying Lawsuit

The claims of John Doe by his Next Friend and Legal Guardian Jane Roe against the Hills are set forth in the Fourth Amended Complaint at Law (the Complaint), which was filed in La Porte Superior Court No. 1.¹ The Complaint alleges that Comford sexually molested Doe on numerous occasions from 2003 until July 2007 at various locations, including at the Hills' lake home in Rolling Prairie. Roe alleges that this molestation caused injury to Doe and emotional distress to both Doe and to Roe herself. Doe was invited to the lake home for both church and non-church related events, and Roe allowed Doe to go to the home believing that the Hills would supervise their property. In a claim Roe labels as “Premises Liability,” she alleges that “[s]olely as a result of the failure of the Defendants to properly supervise and manage their property, their failure to warn John Doe and his guardian of the risks of molestation by Mark Comford, John Doe suffered from intentional infliction of emotional duress.” (Fourth Am. Comp. ¶ 8, ECF No. 48–1.) In a claim for “Negligence” Roe asserts that the Hills failed to properly supervise and provide Doe a safe environment free from sexual molestation, the potential for which they actually or should have recognized as likely to cause serious physical and emotional harm. (Fourth Am. Compl. ¶ 12.a.) The Complaint also makes a separate claim for “Assault and Battery” on grounds that solely as a result of the Hills' failure to properly supervise and manage their home and failure to warn of the risks of assault and battery by Comford, Doe suffered from the intentional infliction of emotional duress when Comford attacked Doe intending to and committing harmful and offensive contact to several parts of his body. (Fourth Am. Compl. ¶ 18.) Roe alleges that because Comford's acts were done intentionally, with malicious intent to injury, and with absolute disregard for Doe's health, safety, and welfare, punitive damages should be awarded.

B. The Insurance Policy

At the time of the events giving rise to the Lawsuit, the Hills had a homeowners insurance policy with Westfield, which had been renewed annually (the Policies). The July 2003 through July 2006 Policies contained personal liability coverage for any claim or suit “brought against an insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies.” (Aff. of Stephen P. St. Clair, ECF No. 35). ² The July 2006 through 2009 renewals similarly provided personal liability coverage for a claim or suit brought against an insured for damages “because of bodily injury or property damage caused by an occurrence.” The Policies define “bodily injury” as “bodily harm, sickness or disease, including required care, loss of services and death that results.” The Policies define property damage as “physical injury to, destruction of, or loss of use of tangible property.”

The Policies contain an exclusion of coverage for personal liability and medical payments for bodily injury “[a]rising out of sexual molestation, corporal punishment or physical or mental abuse.”

DISCUSSION

A federal court sitting in diversity applies state substantive law and federal procedural law. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Camp v. TNT Logistics Corp., 553 F.3d 502, 505 (7th Cir.2009). The parties agree that the substantive law applicable to this case is the law of the State of Indiana. Camp, 553 F.3d at 505 (noting that because none of the parties raised a choice of law issue, the substantive law of the forum state applied). The court's duty is to apply Indiana law as it believes the highest court of the state would apply it if the issue were presently before that tribunal. State Farm Mut. Auto. Ins. Co. v. Pate, 275 F.3d 666, 669 (7th Cir.2001). “When the state Supreme Court has not decided the issue, the rulings of the state intermediate appellate courts must be accorded great weight,...