Jane Doe v. Ravinder Sharma, et al

Filing

UNPUBLISHED OPINION FILED. [10-60264 Affirmed ] Judge: TMR , Judge: JLD , Judge: EBC Mandate pull date is 11/19/2010 [10-60264]

Jane Doe v. Ravinder ase: 10-60264 C Sharma, et al

Document: 00511278812 Page: 1 Date Filed: 10/29/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 29, 2010 N o . 10-60264 S u m m a r y Calendar Lyle W. Cayce Clerk

J A N E DOE, PlaintiffSAppellant v. C O L O N Y INSURANCE CO., individually and a member of Colony Member A r g o n a u t Group; COLONY NATIONAL INSURANCE COMPANY, in d iv id u a lly and a member of Colony Member Argonaut Group; COLONY S P E C I A L T Y INSURANCE COMPANY, individually and a member of Colony M e m b e r Argonaut Group; COLONY MANAGEMENT SERVICES, I N C O R P O R A T E D , individually and a member of Colony Member Argonaut G r o u p ; COLONY MEMBER ARGONAUT GROUP, D e fe n d a n t s S A p p e lle e s

A p p e a l from the United States District Court for the Southern District of Mississippi U S D C No. 3:07-CV-172

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* J a n e Doe ("Doe") filed this action seeking a declaration that Colony I n s u r a n c e Co., Colony National Insurance Co., Colony Specialty Insurance Co.,

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 10-60264 Document: 00511278812 Page: 2 Date Filed: 10/29/2010

Colony Management Services, Inc., and Colony Member Argonaut Group (collectively, "Colony") are required to defend their policyholders against and i n d e m n ify for claims brought by Doe in a separate action in Mississippi state c o u r t. The district court concluded that no coverage existed for Doe's claims and g r a n t e d Colony's motion for summary judgment. We AFFIRM. F A C T S AND PROCEEDINGS T h is appeal arises out of the 2006 kidnaping and rape of Jane Doe 1 by P a t r ic k Cox at the Sunrise Food Mart ("Sunrise") in Jackson, Mississippi. In N o v e m b e r 2006, Doe was standing outside at Sunrise, pumping gas into her t r u c k . Cox approached her, told her not to scream or he would "blow her brains o u t," and directed her to get into the back of her truck. He took her keys out of h e r hand. She complied with his instruction to lie down in the cab of the truck. She never saw a gun, but Cox told her that he had one. Cox drove away from the g a s station with Doe in the cab. He stopped several miles later, wrapped the c o r d of a cell phone charger around Doe's throat, and sexually assaulted her. Cox was ultimately convicted of kidnaping, carjacking, and rape. He received a sentence of seventy-three years' imprisonment. I n 2006, Sunrise and its owners, Ravinder Kumar Sharma and Suman S h a r m a (collectively, "Sharma"), had insurance coverage under a commercial g e n e r a l liability policy ("Policy") issued by Colony. Doe filed suit in Mississippi sta te court against Cox, Sunrise, and Sharma, alleging¯in relevant

p a r t¯ n e g lig e n c e and premises liability claims arising out of the harm that Cox in flic t e d on her. She then filed a declaratory judgment action in Mississippi s t a t e court against Colony. Colony removed the case to federal court and moved

Because the Plaintiff was a victim of sexual assault, she has used the pseudonym "Jane Doe."

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for summary judgment, arguing that the Assault and Battery Exclusion in the P o lic y barred all of the claims and damages. The district court granted the m o t io n , applying Mississippi law, and concluding that the kidnaping of Doe was a forcible crime that arose from an assault and battery and was therefore not c o v e r e d by the Policy. Doe appealed to this court. S T A N D A R D OF REVIEW W e review the district court's decision to grant a motion for summary ju d g m e n t de novo, "applying the same standards as the district court." Cooper v . Hewlett-Packard Co., 592 F.3d 645, 651 (5th Cir. 2009). Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials [], and a n y affidavits show that there is no genuine issue as to any material fact and t h a t the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). D IS C U S S IO N T h e Policy covers, in relevant part, "bodily injuries" occurring at Sunrise. It excludes from coverage, also in relevant part, "damages or expenses due to `b o d ily injury' . . . arising out of or resulting from: (1) Assault and Battery c o m m it t e d by any person; (2) The failure to suppress or prevent assault and b a tt e r y by any person; (3) The failure to provide an environment safe from a s s a u lt and battery or failure to warn of the dangers of the environment which c o u ld contribute to assault and battery" ("Assault and Battery Exclusion"). D o e argues that the Assault and Battery Exclusion does not bar coverage u n d e r the Policy for all of her claims against Sunrise and Sharma. She submits t h a t , under Mississippi law, a harm caused by both a covered and an uncovered p e r il is compensable if the covered peril "contributed significantly" to the harm. She asserts that the kidnaping was a covered peril that contributed significantly t o her damages. The kidnaping is covered, she submits, because it was a

s e p a r a t e event accomplished solely by inveiglement and unaccompanied by force, 3

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such that it did not "aris[e] out of or result[]ing from [an] Assault and Battery" a n d does not fall within the Assault and Battery Exclusion. I t is clear that the kidnaping and Doe's resulting bodily injuries "arose out o f or resulted from" an assault and battery by Cox. While Doe notes that it is p o s s ib le for a kidnaping in Mississippi to occur without the use of force, the facts o f this kidnaping show that it involved force. The undisputed facts do not s u p p o r t Doe's new theory that Cox merely inveigled her into driving away with h im . Doe alleges that Cox advanced toward her at the gas pump, threatened to s h o o t her if she screamed, grabbed her keys out of her hand, instructed her to g e t the cab or he would kill her, climbed into the truck behind her, and drove off w it h the gas pump still in the truck. Outside of Cox's threats to kill her and his p h y s ic a l acts of advancing toward her, climbing over her, and grabbing the keys fr o m her, his claims to have a gun and his repeated threats to use it on her also c o n s t it u t e a seizure of Doe by force. See Ulmver v. State, 406 So. 2d 828, 829 (M is s . 1981) (holding that threat of a gun was an use of force, even where d e fe n d a n t did not actually possess one). Because Cox used obvious force, he did n o t accomplish her kidnaping by mere inveiglement. "Inveigling has no

c o m p o n e n t of force, but only of coaxing. One does not forcibly inveigle." Myers v . State, 770 So. 2d 542, 544 (Miss. Ct. App. 2000); see also Brewer v. State, 459 S o . 2d 293, 296S97 (Miss. 1984) (restating the elements of Miss. Code Ann. § 9 7 -3 -5 3 as requiring "the state [to] prove that a person . . . either (1) forcibly s e iz e d and confined another person, or (2) inveigled or kidnapped another person (3 ) with intent") (emphasis in original). We recognize that exclusionary clauses in insurance policies "are liberally c o n s t r u e d in favor of the insured and strictly construed against the insurer." Burton v. Choctaw, 720 So. 2d 1, 8 (Miss. 1997); accord QBE Ins. Corp. v. Brown

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& Mitchell, Inc., 591 F.3d 439, 443 (5th Cir. 2009). Even strictly construed, the la n g u a g e of the Assault and Battery Exclusion broadly excludes liability for b o d ily injury that arises out of or results from an assault and battery. Doe's a lle g e d injuries all "arose out of" the assault and battery that occurred at S u n r is e . Her claims fall within the exclusion, relieving Colony of any duty to d e fe n d Sunrise and Sharma against or indemnify them for these claims. The c a s e s cited by plaintiff from other jurisdictions are consistent with the Court's c o n c lu s io n s in this case. C O N C L U S IO N F o r the reasons set forth above, we AFFIRM the district court's grant of s u m m a r y judgment in favor of Colony.

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