Greer et al v. Cincinnati Insurance Company, The et al

Filing 94

MEMORANDUM OPINION AND ORDER. Signed by Magistrate Judge Gray M Borden on 7/15/21. (MRR, )

FILED
2021 Jul-15 PM 04:29
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SUZANNA F. GREER, et al.,
Plaintiffs,
v.
THE CINCINNATI INSURANCE
COMPANY, et al.,
Defendants.

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Case No. 2:19-cv-60-GMB

MEMORANDUM OPINION AND ORDER
The instant complaint arises out of a tragic event. Terry Greer, who at the
time served as the Senior Pastor of Gardendale-Mt. Vernon Methodist Church, shot
and killed his wife, Lisa Greer, and shot and injured their teenaged daughter,
Suzanna Greer.

The road to the complaint involved a state-court criminal

proceeding and a state-court civil proceeding that resulted in consent judgments
against Terry Greer in the amount of $3.5 million for Suzanna Greer and $3 million
for the Estate of Lisa Greer (“The Estate”). As explained in detail below, the central
issue before this court is whether Defendants The Cincinnati Insurance Company
(“Cincinnati”) and GuideOne Mutual Insurance Company (“GuideOne”) must
provide coverage to Terry Greer for the consent judgments entered against him.
Doc. 1-1. For the following reasons, the court concludes that Cincinnati and
GuideOne are not liable for the consent judgments as a matter of law.

I. PROCEDURAL HISTORY
On November 29, 2018, Suzanna Greer and the Estate filed a civil complaint
against Cincinnati and GuideOne in the Circuit Court of Jefferson County, Alabama.
Doc. 1-1. The complaint alleges that the two insurance companies “should have
insured Terry Greer for [his] negligent acts” (Doc. 1-1 at 4), but had denied coverage.
Doc. 1-1 at 5. The complaint asserts a claim for breach of contract and claims under
Alabama Code §§ 27-23-1 and 27-23-2 against both defendants. Doc. 1-1 at 6–8.
On January 10, 2019, the defendants jointly removed the case to this court, answered,
and filed counterclaims for declaratory relief. Docs. 1, 4, 10, 13, 20, 32 & 41.
Before the court are two motions for summary judgment and two motions to
strike. Cincinnati filed the first motion seeking summary judgment on the plaintiffs’
claims1 (Doc. 59), along with a brief (Doc. 59-1) and supporting evidence (Docs.
60–65 & 71). On the same day, GuideOne filed its motion for summary judgment
on the plaintiffs’ claims2 (Doc. 66), along with a brief (Doc. 67) and evidence (Docs.
68–70) in support. The plaintiffs filed a response (Doc. 76) and evidence (Doc. 77)

1

The court construes this motion also to be seeking summary judgment on Cincinnati’s First
Amended Counterclaim for declaratory relief. Doc. 41 at 20–65. Resolution of the motion for
summary judgment necessarily resolves Cincinnati’s request for a declaration that it “has no duty
to defend and/or indemnify Plaintiffs for any damages, judgment, or settlements that Plaintiffs
seek to recover in this action under all the policies of insurance issued by [Cincinnati] to
Gardendale Mt. Vernon United Methodist Church . . . [and/or] the North Alabama Conference of
the United Methodist Church.” Doc. 41 at 65.
2
As with Cincinnati’s motion for summary judgment, the court construes GuideOne’s motion to
be seeking summary judgment on its Amended Counterclaim for declaratory relief. Docs. 4 & 13.
2

in opposition to both motions, and the defendants separately filed replies (Docs. 83
& 85) in support of summary judgment. Additionally, the defendants jointly filed
two motions to strike. The first motion (Doc. 84) asks the court to strike the affidavit
of Terry Greer (Doc 77-3) filed in opposition to summary judgment. The plaintiffs
filed a brief (Doc. 87) in opposition to the motion and the defendants jointly filed a
reply (Doc. 88) in support of the motion. The defendants jointly filed another motion
to strike (Doc. 89) the second affidavit of Terry Greer (Doc. 87-2), which the
plaintiffs submitted as an attachment to their response in opposition to the first
motion to strike. The plaintiffs opposed the motion (Doc. 91), and the defendants
filed a reply brief (Doc. 92). The four motions are ripe for review.
II. STANDARD OF REVIEW
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). “The purpose of summary judgment is to
separate real, genuine issues from those which are formal or pretended.” Tippens v.
Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986). “Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude
the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute of material fact is genuine only if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. at 248.
3

The moving party “always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, which it believes demonstrate the absence of a genuine
[dispute] of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(internal quotation marks omitted). In responding to a properly supported motion
for summary judgment, the nonmoving party “must do more than simply show that
there is some metaphysical doubt as to the material fact.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Indeed, the nonmovant
must “go beyond the pleadings” and submit admissible evidence demonstrating
“specific facts showing that there is a genuine [dispute] for trial.” Celotex, 477 U.S.
at 324 (internal quotation marks omitted). If the evidence is “merely colorable, or
is not significantly probative, summary judgment may be granted.” Anderson, 477
U.S. at 249 (citations omitted).
When a district court considers a motion for summary judgment, it “must view
all the evidence and all factual inferences reasonably drawn from the evidence in the
light most favorable to the nonmoving party, and must resolve all reasonable doubts
about the facts in favor of the nonmovant.” Rioux v. City of Atlanta, Ga., 520 F.3d
1269, 1274 (11th Cir. 2008) (citation and internal quotation marks omitted). The
court’s role is not to “weigh the evidence and determine the truth of the matter but
4

to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
“If a reasonable fact finder evaluating the evidence could draw more than one
inference from the facts, and if that inference introduces a genuine issue of material
fact, then the court should not grant summary judgment.” Allen v. Bd. of Pub. Ed.
for Bibb County, 495 F.3d 1306, 1315 (11th Cir. 2007) (citation omitted).
Importantly, if the nonmovant “fails to adduce evidence which would be sufficient
. . . to support a jury finding for [the nonmovant], summary judgment may be
granted.” Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1370
(11th Cir. 1997) (citation omitted).
III. STATEMENT OF RELEVANT FACTS
A.

The Insurance Policies
There are multiple insurance policies at issue in this case. As relevant here,

Cincinnati issued a Commercial General Liability policy and a Commercial
Umbrella Policy to Gardendale-Mt. Vernon United Methodist Church with effective
dates of coverage from December 10, 2011 to December 10, 2014. Docs. 64 & 65.
Under these policies, Cincinnati is obligated to pay “those sums that the Insured
becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property
damage’ to which this insurance applies.” Doc. 64-2 at 1. Gardendale-Mt. Vernon
Methodist Church is the named insured on the Cincinnati policies (Doc. 64-1 at 2),
but there are individuals who also may qualify as an insured. Under the Commercial
5

General Liability Policy, an “insured” includes “‘employees,’ other than . . . your
‘executive officers’ . . . but only for acts within the scope of their employment by
you or while performing duties related to the conduct of your business.” Doc. 64-2
at 11–12. Additionally included as insureds are “church members, but only with
respect to their liability for your activities or activities they perform on your behalf.”
Doc. 64-2 at 25. Finally, the policy covers any “[t]rustee, official or member of the
board of governors of the church” and any “members of the clergy” but covers these
groups “only with respect to their duties as such.” Doc. 64-2 at 25. Similarly, the
Commercial Umbrella Policy defines an insured as “[a]ny employee . . . while acting
within the scope of their duties as such.” Doc. 65-1 at 15.
GuideOne also issued insurance policies containing commercial general
liability and commercial umbrella coverages to the North Alabama Conference of
the United Methodist Church (“the Conference”). Docs. 70-3 to 70-6. Much like the
Cincinnati policies, the GuideOne Commercial General Liability policy states that
GuideOne “will pay those sums that the insured becomes legally obligated to pay as
‘damages’ because of ‘bodily injury’ or ‘property damage’ to which this insurance
applies.” Doc. 67 at 13. Similarly, the Umbrella Policy provides that GuideOne
“will pay on behalf of the insured the ‘ultimate net loss’ in excess of the ‘retained
limit’ because of ‘bodily injury’ or ‘property damage’ to which this insurance
applies.” Doc. 70-6 at 30. The policies again define who may be an insured. As
6

relevant here, an “insured” under the GuideOne policies include “‘employees’ . . .
but only for acts within the scope of their employment . . . or while performing duties
related to the conduct of your business.” Doc. 67 at 14 & 16. Additional insureds
include “members, but only with respect to their liability for your activities or
activities they perform on your behalf, at your direction and within the scope of their
duties,” as well as “any trustee or official; member of the board, council, deaconry,
or vestry; ‘minister’ . . . but only with respect to their duties as such.” Doc. 67 at 14
& 16.
B.

Facts Underlying the Complaint
Terry Greer was ordained as a minister in the United Methodist Church in

1980 and he enjoyed a good reputation among his congregants and other clergy. Doc.
68-10 at 4; Doc. 68-7 at 8. At all times relevant to the instant case, Terry was the
Senior Pastor at Gardendale-Mt. Vernon Methodist Church. Doc. 68-1 at 3. He
remains a credentialed minister with the United Methodist Church. Doc. 68-10 at 4.
The general duties of a senior pastor are to be “responsible for the word and
order of the local church.” Doc. 71-1 at 8–9. In other words, he or she “is responsible
to proclaim the word on a regular basis from the pulpit” and “responsible to make
certain that the local church is ordered and functioning according to the laws, or the

7

guidelines laid out within the Book of Discipline3 and governed by the appropriate
leadership positions.” Doc. 71-1 at 9. More simply, the senior pastor is “involved in
pastoral case and preaching and teaching and leading spiritual matters of the
church.” Doc. 69-8 at 6–7. The senior pastor also “[m]akes[s] certain that the
administrative work and order of the church is being cared for through the various
committees and/or employees of the local church.” Doc. 71-1 at 9. He or she handles
the church’s outreach and mission and ensures that safe sanctuary 4 and other church
policies are followed and training is provided on those policies. Doc. 71-1 at 9–10.
The senior pastor also ensures that the physical premises of the church are safe for
occupancy and handicapped accessible. Doc. 71-1 at 10.
Terry and his family lived in a home on what is known as the church’s
parsonage, a property owned by Gardendale-Mt. Vernon Methodist Church. Doc.
71-1 at 10–11. The Book of Discipline states that the parsonage “is to be mutually
respected by the pastor’s family as property of the church and by the church as a
place of privacy for the pastor’s family.” Doc. 62-8 at 24.
1.

Events Leading to the Shooting

At some point in 2012, the Conference began an investigation into allegations

3

The Book of Discipline contains the social principles, constitution, and governing rules for the
United Methodist Church. Doc. 71-1 at 8.
4
Safe sanctuary policies relate to the “care for children, youth, and vulnerable adults.” Doc. 71-1
at 9–10.
8

of financial improprieties at Terry Greer’s former church and plagiarism of sermons
at Gardendale-Mt. Vernon Methodist church. Doc. 71-1 at 11; Doc. 68-7 at 9 & 15–
16. On October 12, 2017, Terry met to discuss these allegations with Conference
officials, including Ron Shultz, the Conference’s Assistant Bishop and thenSuperintendent of the South District Council, and Bob Alford, the Central District
Superintendent and Terry’s supervisor. Doc. 68-7 at 34; Doc. 71-1 at 6 & 13–14.
Although the Conference officials concluded that Terry should undergo
psychological

testing

and

counseling, they

did

not

communicate

this

recommendation to Terry at the meeting.5 Doc. 68-7 at 36.
Leaving the meeting, Terry was involved in a single vehicle accident when he
crashed his car into a culvert. Doc. 71-1 at 15; Doc. 68-7 at 36. While driving, Terry
testified that he experienced cardiac symptoms similar to a previous heart attack,
causing him to black out. Doc. 68-10 at 22. Terry suffered multiple injuries,
including a fractured lumbar spine, a brain bleed, and burns to his face. Doc. 68-10
at 22. He remained in the hospital for four days (Doc. 68-10 at 22), then returned
home for a “self-imposed or accidental leave of absence” (Doc. 71-1 at 18) during
which he did not go inside the church building, provide any guidance or counseling,
or preach. Doc. 60-10 at 29. He told the church community that he did not want

5

In fact, they never communicated this recommendation to Terry. Doc. 68-7 at 36.
9

visitors at his home during this time. Doc. 68-10 at 91.
A few days after returning home from the hospital, on October 22, 2012, Terry
fell from the back porch of the parsonage, fractured his skull, and sustained a
subarachnoid hemorrhage. Doc. 68-1 at 9; Doc. 68-10 at 27.

He was again

hospitalized, this time for longer than a week. Doc. 68-1 at 9. After returning home
from this hospital visit, Terry attempted to resume his work at the church. Although
he was frail, he preached the community service on Thanksgiving Day in 2012. Doc.
68-10 at 30. The following day, Terry went to the church for part of the day and met
with the staff to discuss Christmas bonuses. Doc. 68-10 at 37. Terry intended to
return to his full duties as senior pastor toward the end of December 2012, but he
became ill. Doc. 60-1 at 40. Because of his inability to resume his duties, the
Conference assigned others to take care of the “day-in and day-out tasks that senior
ministers would be responsible for,” such as preaching, hospital and nursing home
visitation, and meeting with various committees. Doc. 71-1 at 98.
As the weeks passed, Terry became more ill and depressed. On December 19,
2012, he voluntarily admitted himself to Brookwood Hospital in Birmingham,
Alabama, to seek counseling for depression and thoughts of self-harm. Doc. 68-10
at 49–50 & 87. He was discharged the next day with a prescription for sleeping pills
to help with insomnia. Doc. 60-10 at 87. Terry continued to seek help with his
depression from a psychiatrist at Brookwood, who prescribed an antidepressant.
10

Doc. 68-10 at 49–50, 86 & 119.
Between December 20, 2012, and January 10, 2013, Terry remembers being
“in a fog” and that his “thinking was very unclear.” Doc. 68-10 at 88. He was not
working, and he was depressed and feeling down. Doc. 68-10 at 89. He still was not
receiving any visits from church members during this time. Doc. 68-10 at 91. He
did not even want to leave the house. Doc. 61-2 at 19 & 56.
Around New Year’s Day, Suzanna found a suicide note Terry had written to
his wife Lisa on December 28, 2012. Doc. 61-4 at 3. The note began by stating,
“My depressed mind can have no more.” Doc. 61-4 at 3. The note gave detailed
information on insurance, cremation, how to access the safety deposit box, and the
like. Doc. 61-4 at 3. The note ended by stating, “I am so sorry and I love you both.
Please forgive me.” Doc. 61-4 at 3. The note did not indicate that Suzanna or Lisa
were in danger.
On January 9, 2013, Terry emailed his supervisor, Bob Alford, to tell him that
he had “been in a severe depression” since his October car accident and to ask for
help. Doc. 69-6 at 2. The same day, he wrote another suicide note, this one addressed
to both Lisa and Suzanna. Doc. 69-7 at 2–4. This note also gave instructions about
financial and other practical matters such as selling vehicles and using a shorter
obituary because it would be less expensive. Doc. 69-7 at 2–4.

11

2.

Events of January 10, 2013

Terry received a response from his email to Alford on the next day, January
10, 2013. Alford told Terry that Alford would meet with the Gardendale-Mt. Vernon
Parish Staff Relations Committee as soon as possible to discuss the needs for
leadership in the church. Doc. 68-10 at 40. Terry considered this email to be a
“chastisement,” and he interpreted it as an indication that he would be terminated.
Doc. 68-10 at 40. The email “threw [Terry] over the edge,” and he did not have “a
reasonable thought after about probably around 1 o’clock.” Doc. 68-10 at 40. Terry
testified that he does not have any memories from this point forward relating to the
incident. Doc. 68-10 at 41.
Terry began to act strangely on the morning of January 10, 2013. Doc. 68-4
at 5. For instance, he asked Lisa that morning, “What if we all just drive up to heaven
today?” Doc. 68-4 at 5. Later that afternoon, he told Suzanna he had a present for
Lisa hidden under his jacket but would not let her see what it was. Doc. 69-1 at 44;
Doc. 68-4 at 6. A short time later, Terry removed the jacket and revealed a .22
caliber pistol. Doc. 69-1 at 45; Doc. 68-4 at 6. Lisa and Suzanna tried to get him to
put down the gun, but he refused and instead shot Lisa. Doc. 68-4 at 6. Lisa ran
toward the living room and Suzanna ran toward the master bathroom. While
Suzanna was running, Terry shot her twice. Doc. 68-4 at 6. Suzanna barricaded
herself in the bathroom closet and heard more shots. Doc. 68-4 at 6; Doc. 69-1 at 45.
12

At this point, Terry shot Lisa and fatally wounded her. Doc. 69-1 at 45. He then
came to the bathroom closet and tried to get inside. Doc. 68-4 at 6. Terry got his
hand inside the door, shot several more times, and eventually forced open the closet
door. Doc. 68-4 at 6. Suzanna wrestled the gun away from her father, ran to a
neighbor’s house, and called the police. Doc. 68-4 at 6–7; Doc. 69-1 at 45.
After Suzanna left, Terry stabbed himself numerous times with a knife. Doc.
68-4 at 7. When the police arrived, the officer found Terry in the master bathroom
with a large knife protruding from his chest. Doc. 68-4 at 7. When the officer asked
him what happened, Terry said “he went crazy” and admitted that “he had stabbed
himself.” Doc. 68-4 at 7. Terry attempted to take the officer’s gun from him, but
was unsuccessful. Doc. 68-4 at 7.
Lisa died the next day due to the injuries she sustained from the gunshot
wounds to her head, neck, and hand. Doc. 68-4 at 8. Suzanna was treated at the
hospital for gunshot wounds to her breast and her right arm, but released the day of
the shooting. Doc. 68-4 at 8; Doc. 69-1 at 49. Terry stabbed himself eight times in
the chest and had to undergo surgery to repair the damage. Doc. 68-4 at 8–9. He
was hospitalized for one month and then transferred to the Jefferson County Jail.
Doc. 38-4 at 9.
On May 13, 2013, the Probate Court of Jefferson County, Alabama,
determined that Terry is an incapacitated person and appointed both a Guardian Ad
13

Litem and Conservator for him. Doc. 61-3 at 2–3.
C.

Criminal Proceedings
On June 21, 2013, a grand jury in Jefferson County, Alabama, returned an

indictment against Terry Greer for the murder of Lisa Greer and the attempted
murder of Suzanna Greer. Doc. 60-3 at 2–3. During the criminal proceedings, Terry
was evaluated by at least three mental health professionals. All three doctors
essentially agreed that Terry suffered from dementia and serious depression, and had
sustained a possible head injury from his fall off the porch “that contributed in kind
of an awful storm to cause him not to know what he was doing was wrong at the
time.” Doc. 68-4 at 51.
On May 28, 2014, the Circuit Court of Jefferson County, Criminal Division,
conducted a non-jury proceeding related to the indictment. Doc. 68-4.

The

prosecution and Terry agreed on a stipulation of facts regarding the events of January
10, 2013. Doc. 68-4 at 4–9. Dr. Glen King, a forensic psychologist, testified at the
hearing that Terry suffered from severe depression and cardiovascular dementia at
the time of the incident, causing him not to understand that what he was doing was
wrong. Doc. 68-4 at 49. Dr. King further testified that Greer suffered from a
“psychotic feature” or delusion at the time of the shootings. Doc. 68-4 at 49–50.
Following the hearing, the judge found Terry “not guilty by reason of mental disease
or defect and [determined] that he was unable to appreciate the nature and quality of
14

the wrongfulness of his acts at the time of the offense.” Doc. 60-2 at 52–53. The
court ordered him to be committed to the custody of the Alabama Department of
Mental Health. Doc. 60-2 at 58–59.
D.

State-Court Civil Action
On January 9, 2015, Suzanna and the Estate filed a wrongful death and

personal injury lawsuit in the Circuit Court of Jefferson County against Terry Greer,
the Conference, certain employees and affiliated entities of the Conference, and
various fictitious defendants (the “underlying lawsuit”). Docs. 60-5 & 60-6. On
January 15, 2015, the Guardian Ad Litem for Terry requested that Cincinnati provide
a defense for Terry in the underlying lawsuit. Doc. 62-7 at 4–6. Cincinnati refused
to provide coverage because it concluded that he was not an insured relative to the
attacks on his family. Doc. 62-7 at 7–8. GuideOne also denied Terry’s request for
coverage under its policies. Doc. 70-7.
The Estate and Suzanna settled their claims with Terry. Doc. 60-7 at 4–9.
Specifically, Terry assigned all rights he had under the Cincinnati and GuideOne
insurance policies to the Estate and Suzanna and agreed to the entry of consent
judgments against him in the amount of $3 million in favor of the Estate and $3.5
million in favor of Suzanna. Doc. 60-7 at 4–9. The Estate and Suzanna agreed not
to seek collection from Terry and to pursue collection “solely from any available
insurance coverage.” Doc. 60-7 at 5. On April 14, 2016, the Circuit Court entered a
15

consent pro tanto judgment order under seal. Doc. 60-8. The Estate and Suzanna
eventually resolved the claims asserted against the Conference and the individual
defendants through confidential settlements. Doc. 68-2.
IV. DISCUSSION
The threshold question before the court is whether the Cincinnati and
GuideOne policies cover Terry Greer for the events leading to the state-court
lawsuit. The answer to this question turns on whether Terry was an insured party
under the policies. For the following reasons, the court concludes that Terry was not
insured under any of the policies at the time he killed Lisa and attempted to kill
Suzanna. 6
Under Alabama law, the insured bears the burden of establishing coverage by
demonstrating that a claim falls within the policy’s insuring agreement. See St. Farm
Fire & Cas. Co. v. Shady Grove Baptist Church, 838 So. 2d 1039, 1043 (Ala. 2002).
Whether as the assignees of Terry’s rights under the consent judgment in the
underlying state-court action or as judgment creditors under Alabama Code § 27-231, the Estate and Suzanna must establish that Terry’s claims for defense and
indemnity fall within Cincinnati’s coverage of the Gardendale-Mt. Vernon
Methodist Church and GuideOne’s coverage of the Conference. See Maness v. Ala.

6

Because of this conclusion, the court does not address the other arguments advanced by the
defendants in favor of summary judgment.
16

Farm Bureau Mut. Cas. Ins. Co., 416 So. 2d 979, 981–82 (Ala. 1982).
All of the policies incorporate similar definitions of “insured.” As explained
in more detail above, the policies limit the definition of an insured to provide
coverage only when those persons are acting “within the scope of their
employment,” “performing duties related to the conduct of your business,” or acting
“with respect to their duties.” Doc. 64-2 at 11–12 & 25; Doc. 65-4 at 15; Doc. 61 at
14 & 16. While the exact language varies according to the policy, all are unified by
the principle that coverage extends only to actions taken within the scope of
employment.
Under Alabama law, “if an employee is engaged to perform a certain service,
whatever he does to that end, or in furtherance of the employment, is deemed by law
to be an act done within the scope of the employment.” Nelson v. Johnson, 88 So.
2d 358, 361 (1956). As long as the evidence establishes that the act was “incident
to carrying out the duties assigned by his master,” the act is within the scope of
employment even though the master “did not authorize the agent to resort to . . .
improper or unlawful means . . . [that were] unknown to his master or even contrary
to his express directions.” Solmica of the Gulf Coast, Inc. v. Braggs, 232 So. 2d 638,
642 (Ala. 1970). In scope-of-employment determinations, “the dispositive question
is whether the employee was engaged in an act that he was hired to perform or in
conduct that conferred a benefit on his employer.” Hulbert v. State Farm Mut. Auto.
17

Ins. Co., 723 So. 2d 22, 24 (Ala. 1998). If, on the other hand, the employee is not
performing acts he has been hired to do, but is “impelled by motives that are wholly
personal,” his actions fall outside the scope of his employment. Solmica, 232 So. 2d
at 642–43. Even willful wrongs can fall within the scope of the actor’s employment
because “the motive behind the act does not [cause it to fall outside the
employment’s scope] unless it can be shown that the servant acted from wholly
personal motives having no relation to the business of the master.” Plaisance v.
Yelder, 408 So. 2d 136, 137 (Ala. Civ. App. 1981) (citations omitted); see also Doe
v. Swift, 570 So. 2d 1209, 1213 (Ala. 1990) (holding that the “conduct of the
employee . . . must not be impelled by motives that are wholly personal, or to gratify
his own feelings or resentment, but should be in promotion of the business of his
employment”) (internal quotations and emphasis omitted).
The plaintiffs here have failed to meet their burden to establish that Terry
Greer was acting within the scope of his employment during the shooting. There is
no evidence in the record tending to prove that Terry’s actions were incident to or in
furtherance of the duties assigned to him by the Gardendale-Mt. Vernon Methodist
Church or the Conference unless the court were somehow to shoehorn domestic
violence into his duties to provide pastoral case, preach, and lead the spiritual and
administrative matters of the church. That conclusion would be a bridge too far
when there is no rational connection between his work in the church and his violent
18

attack on his family members.
In an attempt to avoid this conclusion, the plaintiffs argue that Terry was
performing his duties as pastor in the weeks leading up to the shootings and that he
was negligent in the performance of his administrative safety duties by keeping a
gun in the parsonage. Doc. 76 at 39–42. While creative, these arguments miss the
mark. Whether Terry performed some of his duties between October 2012 and
January 2013 or was negligent in performing other duties is immaterial to the inquiry
before the court.7 Instead, the relevant inquiry is whether “the servant acted from
wholly personal motives having no relation to the business of the master” or “the
wrong was committed while the servant was executing the duties assigned to him.”
Plaisance, 408 So. 2d at 137. The court considers the wrong or the action giving
rise to liability—not the actions that took place a few months or weeks beforehand,
or even earlier that morning.
The court disagrees with the plaintiffs’ contention that a potential insured’s

7

Because of this conclusion, the defendants’ motions to strike (Docs. 84 & 89) are moot. The
motions address two affidavits from Terry offering various information regarding the weeks and
days before the shooting and the day of the shooting. Docs. 77-3 & 87-2. In their motions to strike,
the defendants highlight myriad problems with the affidavits, including Terry’s legal incapacity,
deficits in his competency to testify to the matters stated, and contradictions between his affidavit
testimony and his prior deposition testimony. Docs. 84 & 89. Additionally, both affidavits were
prepared after the discovery deadline and in direct response to the motions for summary judgment.
While the court has reservations about the admissibility of the affidavits, it does not reach this
question because the affidavits are immaterial to the ultimate conclusion that Terry’s actions were
not covered by the relevant insurance policies.
19

motivation necessarily presents a jury question. Doc. 76 at 42. The plaintiffs
highlight language from the Alabama Court of Civil Appeals stating that “[w]hether
the servant was actuated solely by personal motives or by the interests of his
employer is a question for the jury,” Plaisance, 408 So. 2d at 137 (citation omitted),
but they ignore the qualification in the next sentence: “This is so if there is any
evidence having a tendency either directly or by reasonable inference to show that
the wrong was committed while the servant was executing the duties assigned to
him.” Id. Here, there is no such evidence. Likewise, the court rejects the plaintiffs’
contention that the state criminal court’s adjudication of Terry as not guilty by reason
of insanity precludes a finding that he operated out of personal motives in shooting
his family. Doc. 76 at 43. Leaving aside the asymmetry of the legal standards, the
critical question is whether any of the circumstances surrounding the shooting could
lead a reasonable juror to conclude that Terry was serving his employer’s interests
when he shot his wife and daughter. A post hoc finding about his mental capacity
at the time does not change those circumstances in any meaningful way.
Finally, the plaintiffs’ comparison of this case to the facts in Plaisance, 408
So. 2d at 136, is misplaced. Doc. 76 at 47–50. In that case, Plaisance sued Yelder,
a ready-mix concrete driver, alleging assault and battery. Id. Before the collision,
Plaisance and Yelder had a heated interaction while leaving a jobsite in their
vehicles. Id. After Yelder hit Plaisance’s car with his concrete truck, Plaisance
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walked towards Yelder, who was still sitting in the driver’s seat of his work truck.
Id. As Plaisance approached, Yelder stabbed him in the face with a screwdriver. Id.
Plaisance then pulled Yelder from his truck and the fight continued on the street. Id.
The Alabama Court of Civil Appeals concluded that a jury question existed
as to whether Yelder was acting within the scope of his employment at the time of
the assault. Id. at 138. The court explained that
in cases where a servant’s deviation from the master’s business is slight
and not unusual, the court may determine, as a matter of law, that the
servant was still executing the master’s business. On the other hand,
with a very marked and unusual deviation, the court may determine that
the servant is not on his master’s business at all. Cases falling between
these two extremes must be regarded as involving merely a question of
fact to be left to the jury.
Id. at 138. The court found that this case fell between the two extremes, noting that
“the assault grew out of . . . the operation of the respective vehicles” and “there [wa]s
evidence that the difficulty began while Yelder was still in the cab of his employer’s
truck.” Id. at 138.
In contrast, Terry’s actions on January 10, 2013, can only be described as a
“marked and unusual deviation” from his employment as a minister. There is no
evidence that the shooting grew out of Terry’s work as a minister in any way. Terry
did not lash out at his family because they were keeping him from his work for the
church. He was not engaged in pastoral care. He was not speaking from the pulpit
or even managing the administrative affairs of the church when he took up a gun
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against his wife and daughter. No one at the church assigned him the task of shooting
his family members. There is no good faith argument that Terry’s domestic violence
served the church’s interests. With such a clean break, no reasonable jury could find
that Terry was acting within the line and scope of his employment as a minister when
he tried to kill his daughter and did kill his wife.
For these reasons, the court concludes that Terry is not an insured under any
of the policies at issue. Summary judgment is due to be granted in favor of
Cincinnati and GuideOne on the plaintiffs’ claims and on the counterclaims for
declaratory judgment.
V. CONCLUSION
For these reasons, it is ORDERED that:
1.

Defendant The Cincinnati Life Insurance Company’s Motion for

Summary Judgment (Doc. 59) is GRANTED;
2.

Defendant GuideOne Mutual Insurance Company’s Motion for

Summary Judgment (Doc. 66) is GRANTED; and
3.

Defendants’ Joint Motions to Strike (Docs. 84 & 89) are MOOT.

A separate order will be entered.

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DONE and ORDERED on July 15, 2021.

_________________________________
GRAY M. BORDEN
UNITED STATES MAGISTRATE JUDGE

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