Travelers Home and Marine Insurance Company et al v. Wilson et al
OPINION AND ORDER granting Plaintiff's 17 motion for default judgment; and granting Plaintiff's 25 motion for summary judgment. Plaintiffs owe Wilson no duty to defend or indemnify Wilson as to the claims against him in the underlying action. Judgment will be entered accordingly. Signed by Judge Susan Webber Wright on 9/22/2016. (ljb)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
THE TRAVELERS HOME AND MARINE
INSURANCE COMPANY and THE
AUTOMOBILE INSURANCE COMPANY
OF HARTFORD, CONNECTICUT,
EDGAR L. WILSON and PATRICIA
RODDY on Behalf of the Estate of Dale
Levon Metcalf, Deceased,
No. 4:15CV00532 SWW
Opinion and Order
Plaintiffs, Travelers Home and Marine Insurance Company (“Travelers”) and the
Automobile Insurance Company of Hartford, Connecticut (“Automobile”), bring this action for
declaratory judgment against Edgar L. Wilson (“Wilson”) and Patricia Roddy (Roddy”) on behalf
of the Estate of Dale Levon Metcalf. Plaintiffs seek a determination that policies of insurance
they issued to Wilson afford him no coverage with respect to claims made against Wilson by
Roddy in underlying litigation in state court. The matter is before the Court on Plaintiffs’ motion
for summary judgment. Defendant Roddy responded in opposition to Plaintiffs’ motion and
Plaintiffs filed a reply to Roddy’s response. For the reasons that follow, the Court grants
Plaintiffs’ motion for summary judgment.
The undisputed facts are as follows.1 Travelers issued homeowners policy number
984555151 633 1 to Edgar Wilson and Janet S. Wilson beginning in 2009. The policy insured a
dwelling located at 7 Apache Circle, Lonoke, Arkansas. The relevant policy period is April 1,
2012 to April 1, 2013. Mr. Wilson paid a premium for and the policy provided personal liability
coverage pursuant to certain terms, limitations, exclusions, and conditions set forth in the policy.
Automobile issued a personal liability umbrella of security policy number 932779781 311 to
Edgar Wilson and Janet S. Wilson beginning in 2009. The relevant policy period is April 1, 2012
to April 1, 2013. Mr. Wilson paid a premium for and the policy provided personal excess liability
coverage pursuant to certain terms, limitations, exclusions, and conditions set forth in the policy.
In approximately 1999, Edgar and Janet Wilson purchased a liquor store in DeValls Bluff,
Arkansas. Sometime after 1999, but before the shooting at issue, the Wilsons transferred some of
their holdings in the liquor store to a corporation known as Edgar L. Wilson Enterprises, Inc.,
which they owned. The corporation did business as Happy Times Liquor. Official records for
the subject property in 2012 list the record owners as Edgar L. Wilson and Janet S. Wilson.
Edgar L. Wilson Enterprises, Inc. d/b/a Happy Times Liquor was separately insured by Hartford
Casualty Insurance Company (“Hartford”) under a business liability policy. Mr. Wilson not only
owned the corporation that owned the liquor store but also was an employee of the liquor store.
On the night of September 14, 2012, Wilson and Brenda Dolphin were working at the
liquor store. Dale Levon Metcalf came on the liquor store’s premises. Mr. Wilson knew Metcalf
from previous encounters with him in connection with the liquor store. According to Wilson,
The background is taken from Plaintiffs’s Statement of Undisputed Facts which were all admitted
by Defendant Roddy. See Separate Def. Roddy’s Resp. to Statement of Undisputed Facts (ECF No. 32).
there had been several incidents between the two where Metcalf had cursed Wilson or threatened
his employees. Mr. Wilson had never know Metcalf to carry a gun or knife.
On the night at issue, Wilson took Dolphin outside the liquor store to point Metcalf out to
her. Ms. Dolphin claimed not to know Metcalf. While outside, on the liquor store premises,
Metcalf and Wilson engaged in a verbal argument. At some point, Wilson pulled a .25 caliber
pistol from his pocket and shot Metcalf. The record reflects that Wilson had a concealed carry
permit and was trained in the use of a weapon. Mr. Metcalf died at the scene.
More than one eyewitness to the shooting says Metcalf turned to leave when Wilson
charged him, shooting him in the back of the head. Wilson said Metcalf charged him and he shot
him in self defense. Mr. Wilson claims he thought Metcalf had a weapon but admits he never
saw a weapon. No weapon was ever recovered.
Dr. Steven Erickson, deputy medical examiner, a physician and forensic pathologist,
testified the bullet Wilson fired entered Metcalf’s head right in front of his left ear and traveled
left to right, stopping just beneath the skin of his right temple. Stippling on Metcalf’s skin at the
entrance wound indicated Wilson fired the gun at close range to Metcalf. Dr. Erickson estimated
the distance to have been three to four feet, which he described as a “can’t miss distance.” He
could not say from his examination how Metcalf’s body was positioned, whether forward- or
rear-facing, when Wilson shot him. Dr. Erickson said either was possible.
Mr. Wilson was charged with murder in the first degree. Following a two-day jury trial,
he was found guilty of second degree murder. The jury rejected his claim of self-defense. Mr.
Wilson was sentenced to fifteen years in the Arkansas Department of Correction. He did not
appeal and the time to appeal has run.
Mr. Metcalf’s estate, by and through Roddy, filed a wrongful death lawsuit on March 12,
2013, against Wilson and Edgar L. Wilson, Inc. In the complaint, Roddy alleges Metcalf was a
customer of Edgar L. Wilson, Inc. d/b/a/ Happy Times Liquor Store, at the time of the shooting.
Ms. Roddy alleges Wilson’s acts were intentional.
Mr. Wilson requested coverage under his personal and business policies. Plaintiffs are
providing a defense to Wilson under a reservation of rights. Hartford is defending Wilson and his
corporation under a reservation of rights also. On August 26, 2015, Plaintiffs filed this action
seeking a determination of whether Wilson’s personal policies with them provide coverage to him
for the shooting of Metcalf. Plaintiffs named Wilson and Roddy, on behalf of Metcalf’s estate, as
defendants. Mr. Wilson was served but has never appeared or answered. Plaintiffs filed a motion
for default judgment against him. They now seek summary judgment.
Standard of Review
A court should enter summary judgment if the evidence, viewed in the light most
favorable to the nonmoving party, demonstrates that there is no genuine dispute as to any material
act and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see
also Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 249-50 (1986). A genuine dispute of material
fact exists only if the evidence is sufficient to allow a jury to return a verdict for the nonmoving
party. Anderson, 477 U.S. at 249.
In diversity cases, the federal courts look to the law of the forum state when interpreting
the provisions of an insurance contract. Shelter Ins. Cos. v. Hildreth, 255 F.3d 921, 925 (8th Cir.
2001). If the language of the policy is ambiguous, courts will construe the policy liberally in
favor of the insured and strictly against the insurer. Elam v. First Unum Life Ins. Co., 57 S.W.3d
165, 169 (Ark. 2001). “Language is ambiguous if there is doubt or uncertainty as to its meaning
and it is fairly susceptible to more than one reasonable interpretation.” Id. Whether language of
the policy is ambiguous is ordinarily a question of law to be decided by the court. Castaneda v.
Progressive Classic Ins. Co., 166 S.W.3d 556, 561 (Ark. 2004).
The homeowners policy Travelers issued to Wilson and his wife insures a dwelling in
Lonoke, Arkansas. Under Section II - Liability Coverages, Coverage E - Personal Liability, the
If a claim is made or a suit is brought against an ‘insured’ for damages because of
‘bodily injury’ . . . caused by an ‘occurrence’ to which this coverage applies, we
Pay up to our limit of liability for the damages for which an ‘insured’ is
legally liable . . . and
Provide a defense at our expense by counsel of our choice, even if the suit
is groundless, false or fraudulent[.]
Pls.’ Mot. Summ.J., Ex. A (ECF No, 25-1) at 000026.
The homeowners policy defines “insured,” in relevant part, as “a. you and residents of
your household who are: (1) Your relatives; or (2) Other persons under the age of 21 and in the
care of any person named above.” Ex. A at 000011. “Bodily injury” is defined as “bodily harm,
sickness, or disease, including required care, loss of services, and death that results.” Ex. A at
000010. The homeowners policy defines “occurrence” as “an accident, including continuous or
repeated exposure to substantially the same general harmful conditions, which results during the
policy period, in: a. ‘bodily injury’[.]” Ex. A at 000012.
As to exclusions from coverage, the homeowners policy provides:
Section II - Exclusions, A. Coverage E - Personal Liability and Coverage F Medical Payments to Others.
Coverages E and F do not apply to ‘bodily injury’ . . .:
1. Which is expected or intended by an ‘insured’ even if the resulting ‘bodily
injury’ . . .:
a. Is of a different kind, quality or degree than initially expected or intended; or
b. Is sustained by a different person, entity, real or personal property, than initially
expected or intended.
However, this exclusion A.1 does not apply to ‘bodily injury’ resulting from the
use of reasonable force by an ‘insured’ to protect persons or property.
2. Arising out of or in connection with a ‘business’ conducted from an ‘insured
location’ or engaged in by an ‘insured’, whether or not the ‘business’ is owned or
operated by an ‘insured’ or employs an ‘insured.’
4. Arising out of a premises:
a. Owned by an ‘insured’;
b. Rented to an ‘insured’; or
c. Rented to others by an ‘insured’;
that is not an ‘insured location’;
Ex. A at 000028. The homeowners policy defines “business” as:
a. A trade, profession or occupation engaged in on a full-time, part-time or
occasional basis; or
b. Any other activity engaged in for money or other compensation, except the following:
(1) Volunteer activities for which no money is received other than
payment for expenses incurred to perform the activity;
(2) Providing home day care services for which no compensation is
received, other than the mutual exchange of such services; or
(3) Providing home day care services to a relative of an ‘insured’.
Ex. A at 000010. “Insured location” is defined as:
a. The ‘residence premises”,
b. The part of other premises, other structures and grounds used by you as a
(1) Which is shown in the Declarations; or
(2) Which is acquired by you during the policy period for your use
as a residence.
c. Any premises used by you in connection with a premises described in a. and b.
d. Any part of a premises:
(1) Not owned by an ‘insured’, and
(2) Where an ‘insured’ is temporarily residing;
e. Vacant land, other than farm land, owned by or rented to an ‘insured’;
f. Land owned or rented to an ‘insured’ on which a one or two family dwelling is
being built as a residence for an ‘insured’;
g. Individual or family cemetery plots or burial vaults of an ‘insured’;
h. Any part of a premises occasionally rented to an ‘insured’ for other than
I. Any premises owned by you and rented to others for use as a residence by not more
than four families, if shown in the Declarations as an ADDITIONAL RESIDENCE
RENTED TO OTHERS; or
j. Any other structure on the ‘residence premises’ rented to others as a private residence
for which a limit of liability is shown in the Declarations for STRUCTURES
RENTED TO OTHERS.
Ex. A at 000011-000012.
The personal liability umbrella of security policy issued by Automobile provides that the
insurer “will pay damages for which an ‘insured’ becomes legally liable due to ‘bodily injury’ . . .
caused by an ‘occurrence.’ This coverage applies only to damages in excess of the ‘retained
limit’.” Pls.’ Mot. for Summ. J., Ex. B at 000055. The umbrella policy defines ‘insured’ as “1)
You[.]” Ex. B at 000055. “‘Bodily injury’” means bodily harm, sickness or disease. It includes
required care, loss of services, death and mental anguish that results.” Ex. B at 000055. The
policy defines “occurrence” as “ a. An accident, including continuous or repeated exposure to
substantially the same general conditions, that results in ‘bodily injury’ . . . during the policy
period.” Ex. B at 000056.
The umbrella policy issued by Automobile contains certain exclusions when “an ‘insured’
becomes legally liable due to ‘bodily injury’ . . . caused by an ‘occurrence’[.]” Ex. B at 000055.
The relevant provisions are:
This insurance does not apply:
To ‘bodily injury’ . . . arising out of an act which is expected or intended
by an ‘insured’ to cause ‘bodily injury’[.] This exclusion applies even if
the ‘bodily injury’ . . . :
a. Is of a different kind, quality or degree than expected or
b. Is sustained by a different person or entity than expected or intended.
However, this exclusion does not apply to:
a. ‘Bodily injury’ resulting from the use of reasonable force by an
‘insured’ to protect persons or property[.]
To ‘bodily injury’ . . . arising out of ‘business’ pursuits or
‘business’ property of any ‘insured[.]’
Ex. B at 000057. The umbrella policy defines “business” as a “trade, profession or occupation.”
Ex. B at 000055.
Plaintiffs argue they are entitled to summary judgment because based on the allegations of
the underlying complaint there is no possibility of coverage. They also argue defendants are
barred by the doctrine of collateral estoppel from arguing coverage exists or is excluded to
Wilson. Lastly, they allege there is no coverage or coverage is excluded under the policies. In
response, Roddy argues collateral estoppel does not exclude Wilson from coverage and that there
is a genuine issue of material fact as to whether Wilson acted in self-defense and whether the
shooting is an “occurrence.”
As a general matter, the duty to defend is determined by comparing the allegations in the
underlying complaint to the scope of the coverage provided by the insurance policy. Insurance
Co. of North Am. v. Forrest City Country Club, 819 S.W.2d 296 (Ark. 1991). Under Arkansas
law, the duty to defend is broader than the duty to indemnify, and it arises when there is a
possibility that the injury or damage may fall within the policy coverage. Murphy Oil USA Inc. v.
Unigard Security Ins. Co., 61 S.W.3d 807, 812-13 (Ark. 2001). In testing the pleadings to
determine if they state a claim within the liability policy coverage, a court must resolve any doubt
in favor of the insured. Id . at 814. Courts are not, however, required by the rules of contractual
construction to stretch their imaginations to create coverage where none exists. Pate v. U.S. Fid.
& Guar. Co., 685 S.W.2d 530, 532 (Ark. 1985).
The underlying complaint alleges that Wilson, acting as an employee of the liquor store,
intentionally shot Metcalf who was a customer of the liquor store. The policies only cover an
“occurrence,” which is defined as an “accident.” An “accident” is defined as “an event that takes
place without one’s foresight or expectation - an event that proceeds from an unknown cause, or
is an unusual effect of a known cause, and therefore not expected.” Continental Ins. Co. v.
Hodges, 534 S.W.2d 764, 765 (Ark. 1976)(internal citation and quotation omitted). See also
United States Fid. & Guar. Co. v. Continental Cas. Co., 120 S.W.3d 556 (Ark. 2003); Essex Ins.
Co. v. Holder, 261 S.W.3d 456 (Ark. 2007). The complaint alleges Wilson’s actions were
intentional. Plaintiffs argue there is no possibility that his act of shooting Metcalf could have
been an accident.
Plaintiffs also assert the doctrine of collateral estoppel bars defendants from relitigating
whether Wilson expected or intended to injure Metcalf. Issue preclusion or collateral estoppel
bars relitigation of the same issue in a subsequent case when four elements are met: (1) the issue
sought to be precluded must be the same as that involved in the prior litigation; (2) the issue
sought to be precluded must have been actually litigated in the prior action; (3) the issue sought to
be precluded must have been determined by a valid and final judgment; and (4) the determination
in the prior action must have been essential to the prior judgment.” Powell v. Lane, 289 S.W.3d
440, 444 (Ark. 2008). In Zinger v. Terrell, 985 S.W.2d 737 (Ark. 1999), the Arkansas Supreme
Court held that a prior criminal conviction for murder acts as a bar to relitigating the same issue
for the same defendant in a civil court action. Zinger was convicted of first-degree murder of her
mother. Zinger was a beneficiary on her mother’s life insurance policies, and the court held that
she was collaterally estopped from relitigating her guilt in a later civil proceeding to inherit or
take her mother’s property. The Arkansas Supreme Court said: “We are convinced that the time
has come to overrule our case law and join the prevailing view that a prior criminal conviction for
murder acts as a bar to relitigating the same issue for the same defendant in civil court.” 985
S.W.2d at 741. See also Bradley Ventures, Inc. v. Farm Bureau Mut. Ins. Co., 264 S.W.3d 485
(Ark. 2007) (Zinger created narrow exception for a murder conviction).
Mr. Wilson was found guilty of second degree murder. A person is guilty of second
degree murder if he “knowingly causes the death of another under circumstances manifesting
extreme indifference to the value of human life; or With the purpose of causing serious physical
injury to another person, the person causes the death of any person.” Ark. Code Ann. §5-10-103
A person acts knowingly with respect to:
The person’s conduct or the attendant circumstances when he or
she is aware that his or her conduct is of that nature or that the
attendant circumstances exist; or
A result of the person’s conduct when he or she is aware that it is
practically certain that his or her conduct will cause the result.
The Court finds that based on the allegations of the complaint, plaintiffs have no duty to
defend or indemnify Wilson. The Court additionally finds the doctrine of collateral estoppel bars
defendants from relitigating the issue of whether there was an “occurrence” or whether Wilson
expected or intended Metcalf’s bodily injury. “Knowingly” causing bodily injury is the same as
expecting or intending it. The jury’s criminal verdict forecloses a finding of coverage under the
Ms. Roddy claims there is a genuine issue of fact as to whether Wilson acted in selfdefense. The policies contain exceptions for use of reasonable force to protect persons or
property. The jury rejected Wilson’s claim of self-defense. Collateral estoppel precludes
defendants from relitigating whether Wilson used reasonable force to protect himself.
Even if the allegations of the complaint or collateral estoppel are not determinative of
coverage, the Court finds that the plain language of the policies establish there is no coverage.
There is no evidence of an “occurrence.” Even if there were an “occurrence,” there are
exclusions that abrogate coverage in this situation. Coverage is excluded under the homeowners
policy for “bodily injury” expected or intended by an “insured.” Mr. Wilson shot and killed
Metcalf. Mr. Wilson had a concealed carry permit, he carried a .25 caliber handgun, was trained
to use it, and shot Metcalf at close range. He expected or intended bodily harm to Metcalf. See
Fireman’s Ins. Co. v. Smith, 683 S.W.2d 234, 237 (Ark. App. 1985)( “The intent to inflict injury
can be inferred from the very character of the act. Any reasonable person would expect or intend
serious injury to be inflicted by shooting another at point blank range with a .38 caliber pistol.
Reasonable minds could not conclude otherwise”).
Coverage is also excluded under the homeowners policy for “bodily injury” arising out of
or in connection with a “business” conducted from an “insured location” or engaged in by an
“insured,” whether or not the “business” is owned or operated by an “insured” or employs an
“insured.” “Business” is defined under the homeowners policy as “ a. A trade, profession or
occupation engaged in on a full-time, part-time or occasional basis; or b. Any other activity
engaged in for money or other compensation, except the following: (1) Volunteer activities for
which no money is received other than payment for expenses incurred to perform the activity; (2)
Providing home day care services for which no compensation is received, other than the mutual
exchange of such services; or (3) Providing home day care services to a relative of an ‘insured’.”
The evidence is undisputed that Wilson was working at the liquor store at the time of the
shooting and that work constituted a “business” as defined by the policy. Mr. Metcalf’s death
arose out of or in connection with the business engaged in by Wilson. The undisputed facts are
that Wilson was pointing out Metcalf to Dolphin as someone with whom Wilson had issues in
connection with the liquor store.
The homeowners policy also excludes coverage for “bodily injury” arising out of premises
owned by an “insured” that is not an “insured location.” The liquor store property, which Wilson
owned, was not an “insured location” because it was not Wilson’s residence premises. It also
does not meet any of the other definitions of “insured location.” Mr. Metcalf’s shooting arose out
of the liquor store. He and Wilson were arguing about Metcalf being on the liquor store property
when Wilson shot Metcalf.
Lastly, Plaintiffs argue that if there is no coverage under the homeowners policy, there
should be no coverage under the umbrella policy. Like the homeowners policy, the personal
umbrella of security policy defines “occurrence” as an “accident.” Further, even if there were an
“occurrence” under the umbrella policy, the exclusions for expected or intended “bodily injury”
and for “bodily injury” arising out of “business” pursuits or “business “ property of the “insured”
would negate coverage. Ms. Roddy raises an argument that the definition of “occurrence” in the
umbrella policy includes “[a]n offense . . . committed during the policy period, that results in
“personal injury.’” Pls.’ Mot. Summ. J., Ex. B at 000056. “‘Personal injury’ means an injury
caused by any of the following offenses committed during the policy period: a. False arrest,
detention or imprisonment, or malicious prosecution[.]’” Id. Ms. Roddy points to testimony that
Metcalf was attempting to leave the liquor store premises when Wilson shot him and that could be
considered an offense of detention.
There is no allegation that Wilson detained Metcalf. Even if the definition of “personal
injury” were applicable, exclusions apply. Further, the umbrella policy coverage applies “only to
damages in excess of the ‘retained limit.’” Id. at 000055. “‘Retained limit’ means the greater of:
a. The total limits of any other insurance that applies to the ‘occurrence’ which is available to an
‘insured;’ or b. The applicable deductible amount shown in the ‘Declarations’”. Id. at 000056.
Because there are no genuine issues of material fact in dispute as to the duty to defend or
indemnify Wilson under the policies of insurance provided by Travelers and Automobile, the
Court finds summary judgment should be granted in their favor.
Also pending before the Court is Plaintiffs’ motion for default judgment against Wilson.
In its motion, Plaintiffs state Wilson, who is incarcerated and was properly served, failed to
answer or otherwise respond to the complaint. Plaintiffs sought and received a Clerk’s Default.
The Court finds Plaintiffs have satisfied the requirements for securing a default judgment against
Wilson. See Fed.R.Civ.P. 55(b)(2). The Court therefore will grant the motion for default
IT IS THEREFORE ORDERED that Plaintiffs’ motion for summary judgment [ECF No.
25] is granted. Plaintiffs’ motion for default judgment [ECF No. 17] is granted. Plaintiffs owe
Wilson no duty to defend or indemnify Wilson as to the claims against him in the underlying
action. Judgment will be entered accordingly.
DATED this 22nd day of September, 2016.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE
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