Kathryn Hollis v. Lexington Insurance Company


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cv-00290-JCC-JFA. Copies to all parties and the district court. [1000046862]. Mailed to: Jacqueline Gass & Kimmel Schaefer (Schaefer Pyrotechnics). [16-1533]

Download PDF
Appeal: 16-1533 Doc: 42 Filed: 03/22/2017 Pg: 1 of 5 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-1533 KATHRYN T. HOLLIS; ANDRE D. HOLLIS; M.H., an infant, by and through his father and next friend, Andre D. Hollis, Plaintiffs - Appellants, v. LEXINGTON INSURANCE COMPANY; AXIS SURPLUS INSURANCE COMPANY, INC., d/b/a Axis, d/b/a Axis Insurance, d/b/a Axis Capital, d/b/a Axis U.S. Insurance; SCHAEFER PYROTECHNICS, INC.; KIMMEL R. SCHAEFER; JACQUELINE M. GASS, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:15-cv-00290-JCC-JFA) Submitted: March 3, 2017 Decided: March 22, 2017 Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Nathan D. Rozsa, Scott A. Surovell, SUROVELL ISAACS PETERSEN & LEVY PLC, Fairfax, Virginia, for Appellants. Paul D. Smolinsky, JACKSON & CAMPBELL, P.C., Washington, D.C., for Appellee Lexington Insurance Company. H. Robert Yates, III, O’HAGAN MEYER PLLC, Richmond, Virginia, for Appellee Axis Surplus Insurance Company, Inc. Appeal: 16-1533 Doc: 42 Filed: 03/22/2017 Pg: 2 of 5 Unpublished opinions are not binding precedent in this circuit. 2 Appeal: 16-1533 Doc: 42 Filed: 03/22/2017 Pg: 3 of 5 PER CURIAM: Kathryn Hollis and her two sons received injures from a fireworks explosion. The underlying state court action alleges that the fireworks company, its president, and another employee committed 19 breaches of duty that resulted in M.H.’s injuries. The issue in this declaratory judgment action is whether the underlying complaint alleges a single occurrence or 19 occurrences under the fireworks company’s applicable insurance policy with Lexington Insurance Company. The policy covers up to $1 million per occurrence and $2 million in the aggregate. In the present declaratory judgment action, the district court, ruling on cross-motions for summary judgment, found that the underlying complaint alleged one occurrence. We agree and thus affirm. We review a district court’s resolution of cross-motions for summary judgment de novo. 516, 523 (4th Cir. 2003). summary judgment when no Rossignol v. Voorhaar, 316 F.3d A district court may only award genuine dispute of material fact remains and the record shows that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). 3 Appeal: 16-1533 Doc: 42 Here, Filed: 03/22/2017 the district Pg: 4 of 5 court resolved favor of the insurer, Lexington. * the cross-motions in The dispute is subject to Pennsylvania law. In the liability insurance context, Pennsylvania applies a cause approach to defining occurrences. law Donegal Mut. Ins. Co. v. Baumhammers, 938 A.2d 286, 293 (Pa. 2007). Under the cause approach, Pennsylvania courts find a single occurrence if there “was but one proximate, uninterrupted, and continuing cause which resulted in all of the injuries and damage.” D’Auria v. Zurich Ins. Co., 507 A.2d 857, 860 (Pa. Super. Ct. 1986); see also Baumhammers, 938 A.2d at 294-95. Here, regardless of the number of alleged negligent acts or victims, the injuries have a single proximate cause — misfired firework that exploded near Kathryn and her sons. Baumhammers, 938 A.2d at 296. the See Because the injuries only have one cause, only one occurrence took place. Accordingly, we affirm the district court’s order resolving the cross-motions for summary judgment in Lexington’s favor. dispense with oral argument because * the facts and We legal The district court found the claim against the excess insurer, Axis, non-justiciable. The Hollises have not challenged that ruling on appeal. 4 Appeal: 16-1533 Doc: 42 contentions are Filed: 03/22/2017 adequately Pg: 5 of 5 presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 5

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?