Nationwide Property and Casualty Insurance Company et al v. O'NEILL et al
Filing
23
ORDER granting 14 Motion for Judgment on the PleadingsOrdered by U.S. District Judge Clay D. Land on 11/08/13 (bsh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
NATIONWIDE PROPERTY & CASUALTY
INSURANCE COMPANY and
NATIONWIDE AFFINITY INSURANCE
COMPANY,
*
*
*
Plaintiffs,
CASE NO. 3:13-cv-47 (CDL)
*
vs.
*
JOHN JOSEPH O’NEILL and JESSICA
MARIE O’NEILL,
*
Defendants.
*
O R D E R
“In-laws” do not always get along, but acrimony rarely
escalates
to
father-in-law.
the
point
that
a
daughter-in-law
sues
her
own
Even rarer are cases in federal court arising
from such disputes.
But thanks to the possible existence of
insurance coverage, this is one.
After a night on the town, John Joseph O’Neill and his
daughter-in-law, Jessica Marie O’Neill, got in an altercation in
the front seat of Mr. O’Neill’s pick-up truck upon leaving a
bar.
Jessica sued her father-in-law in state court for personal
injuries
she
allegedly
suffered.
In
that
action,
Jessica
alleges that Mr. O’Neill, while intoxicated, placed her in a
headlock, hit her on the head, choked her, and shoved her out of
his pick-up truck.
Mr. O’Neill is the insured on a homeowner policy issued by
Plaintiff
Nationwide
Property
&
Casualty
Insurance
Company
(“Nationwide P&C”) and on an auto policy issued by Plaintiff
Nationwide
covering
Affinity
his
Insurance
pick-up
Company
truck.
(“Nationwide
Both
insurers
Affinity”)
filed
this
declaratory judgment action seeking a ruling that their policies
do
not
cover
insurers
the
claims
therefore
have
asserted
no
duty
O’Neill for Jessica’s claims.
the
pleadings
in
the
action (ECF No. 14).
by
to
Jessica
indemnify
and
or
that
the
defend
Mr.
Plaintiffs moved for judgment on
presently
pending
declaratory
judgment
For the reasons explained in the remainder
of this Order, the Court grants Plaintiffs’ motion.
JUDGMENT ON THE PLEADINGS STANDARD
After
the
pleadings
are
closed,
a
party
may
move
for
judgment on the pleadings based solely upon materials contained
in those pleadings.
Fed. R. Civ. P. 12(c).
Judgment on the
pleadings is only appropriate if the pleadings, when construed
in
favor
of
the
non-movant,
establish
that
the
movant
is
entitled to judgment as a matter of law.
Douglas Asphalt Co. v.
Qore,
Cir.
Inc.,
541
F.3d
1269,
1273
(11th
2008).
In
the
present case, the two relevant insurance policies are attached
as exhibits to Plaintiffs’ Complaint and are incorporated by
reference as part of the Complaint.
that the
attached
Moreover, Defendants admit
policies are the applicable ones for this
2
action.
Therefore, the Court may consider those policies in
making its decision.
The complaint in the underlying state
court action has also been attached to the declaratory judgment
Complaint as an exhibit and is incorporated by reference into
the Plaintiffs’ pleadings.
Defendants do not dispute that the
attached state court complaint accurately states the claims for
which coverage is sought.
Therefore, the Court may consider
those factual allegations when ruling upon Plaintiffs’ motion
for judgment on the pleadings.1
In the following discussion, the
Court examines the claims that Jessica asserts in the underlying
1
Mr. O’Neill argues that in deciding the coverage question, the Court
must also consider his version of what happened and whether coverage
would exist if that version were true. While Mr. O’Neill’s argument
may have some theoretical appeal, it does not apply here. Under his
version of the facts, Mr. O’Neill essentially argues that he would
have no liability to Jessica. It follows that if he has no liability
to Jessica, there would be no duty to indemnify. Mr. O’Neill thus has
not alleged a set of facts which would allow him to prevail.
See
Palmer & Cay, Inc. v. Marsh & McLennan Cos., 404 F.3d 1297, 1303 (11th
Cir. 2005) (internal quotation marks omitted) (explaining that it is
appropriate to grant a motion for judgment on the pleadings when the
non-movant “can prove no set of facts which would allow it to
prevail”).
It is true that if a plaintiff’s factual allegations can
be construed in a manner that arguably provides coverage, then an
insurer has a duty to defend those claims even if the defendant may
ultimately prevail. See Elan Pharm. Research Corp. v. Emp’rs Ins. of
Wausau, 144 F.3d 1372, 1375 (11th Cir. 1998) (“[A]n insurer must
provide a defense against any complaint that, if successful, might
potentially or arguably fall within the policy’s coverage.”).
It is
also true that “[w]hen the complaint on its face shows no coverage,
but the insured notifies the insurer of factual contentions that would
place the claim within the policy coverage, . . . the insurer has an
obligation to give due consideration to its insured’s factual
contentions.”
Lawyers Title Ins. Corp. v. Stribling, 294 Ga. App.
382, 385, 670 S.E.2d 154, 157 (2008) (alterations in original)
(internal quotation marks omitted).
But Mr. O’Neill does not make
factual contentions that would place the claim within the policy
coverage. He simply argues that he did not do what Jessica alleges,
but he has not demonstrated how a jury could find in favor of Jessica
on her claims and there be insurance coverage for the claims.
3
state
court
insurance
action
policies
along
to
with
the
determine
provisions
whether
in
the
liability
two
coverage
exists for Mr. O’Neill for the claims asserted against him by
his daughter-in-law.
See Auto-Owners Ins. Co. v. State Farm
Fire & Cas. Co., 297 Ga. App. 751, 754, 678 S.E.2d 196, 199
(2009) (appropriate inquiry requires comparison of the complaint
allegations with policy provisions).
DISCUSSION
I.
Claims under the Homeowner Policy
A.
The Policy Coverage
Mr. O’Neill’s homeowner policy with Nationwide P&C provides
personal liability coverage for “damages an insured is legally
obligated to pay due to an occurrence resulting from negligent
personal acts . . . .”
ECF No. 1-4.
Compl. Ex. D, Homeowner Policy at G1,
“Occurrence” is defined in the policy as “bodily
injury . . . resulting from an accident . . . .”
Id.
The
policy does not define “accident,” but the plain meaning of that
term can easily be ascertained by use of the dictionary.
See W.
Pac. Mut. Ins. Co. v. Davies, 267 Ga. App. 675, 678, 601 S.E.2d
363,
367
(2004)
(“In
construing
a
contract
of
insurance
to
ascertain the intent of the parties, the court should give a
term or phrase in the contract its ordinary meaning or common
signification as defined by dictionaries, because they supply
the plain, ordinary, and popular sense unless the words are
4
terms of art.”)
“Accident” typically means “[a]n unintended and
unforeseen injurious occurrence[.]”
(9th
ed.
2009);
Dictionary
11
unplanned
event
exist
under
claims
must
see
(1993)
or
the
also
Webster’s
(defining
from
an
Third
accident
condition”).
Nationwide
arise
Black’s Law Dictionary 16
Jessica’s
injuries
P&C
homeowner
unintended
were
as
Therefore,
resulting from negligent personal acts.
that
New
the
and
International
“an
for
unforeseen
coverage
policy,
to
Jessica’s
unforeseen
event
Nationwide P&C contends
result
of
Mr.
O’Neill’s
intentional acts, and therefore, no coverage exists under the
terms of the policy.
argues
that
the
Compl. ¶¶ 28-29.
“intentional
exclusions apply here.
as
follows:
Medical
There
Payments
is
acts”
and
Compl. ¶¶ 30-31.
no
to
coverage
Others
for
for
Nationwide P&C also
“criminal
acts”
Those exclusions are
Personal
bodily
Liability
injury
or
“caused
intentionally by or at the direction of an insured, including
willful acts the result of which the insured knows or ought to
know
will
follow
from
the
insured’s
conduct”
or
for
bodily
injury “caused by or resulting from an act or omission of any
insured which are crimes pursuant to the Georgia Criminal Code.”
Homeowner Policy at H1.
The fundamental question is whether
Jessica alleges claims that arise from Mr. O’Neill’s negligent
unintentional conduct or whether the alleged conduct was clearly
of an intentional nature.
5
B.
Intentional Tort Claims
Jessica claims Mr. O’Neill caused her injuries by placing
her in a headlock, striking her in the head, choking her and
ultimately pushing her out of his stationary truck.
Compl. Ex.
A, Underlying Compl. ¶¶ 15-19, 28-29, 35, ECF No. 1-1.
Her
complaint alleges that he did so intentionally and that his
intent was “willful and malicious.”
Id. ¶¶ 28, 36, 38, 43.
She
asserts claims for assault, battery, intentional violent injury,
intentional attempt to inflict violent injury, and intentional
infliction of emotional distress.
neither accidental nor negligent.
These intentional acts are
They clearly fall outside of
any coverage provided by Mr. O’Neill’s homeowner policy, and
they
are
specifically
excluded
exclusion in the policy.
C.
the
“intentional
acts”
Homeowner Policy at H1.
“Negligence” Claims
Jessica
amounted
by
to
misconduct
alleges
that
negligence.
violates
the
conduct
of
She
asserts
that
several
criminal
constitutes negligence per se.
Mr.
O’Neill
his
statutes
also
intentional
and
thus
Significantly, the conduct that
supports her negligence per se claim is the same exact conduct
that gives rise to her intentional tort claims.
As previously
explained, that alleged conduct is clearly not covered under the
homeowner
policy.
The fact that the same exact intentional
misconduct may also constitute negligence does not change the
6
nature of the conduct for insurance coverage purposes.
As the
Georgia Supreme Court explained, “coverage need not be provided
even though negligence is asserted as a concurrent cause of the
harm suffered . . . because that harm clearly arose out of
conduct
that
was
exclusionary
within
clause.”
the
scope
Continental
of
Cas.
an
Co.
insurance
v.
policy
H.S.I.
Fin.
Servs., Inc., 266 Ga. 260, 262, 466 S.E.2d 4, 7 (1996).
It is
the alleged conduct that determines whether coverage exists, and
not the label placed on the cause of action.
previously
explained,
Mr.
O’Neill’s
For the reasons
alleged
intentional
malicious misconduct is not covered under the homeowner policy
whether
that
intentional
misconduct
gives
rise
to
causes
of
action for intentional torts or negligent ones.
In addition to her negligence per se claim, Jessica also
alleges
that
Mr.
O’Neill
was
negligent
when
he
“consumed
excessive amounts of alcohol with complete disregard for his
duty to act in a reasonable and prudent matter . . . when he
knew, or should have known, it would lead him to cause violent
acts.”
Underlying
Compl.
¶¶
56-57.
She
negligence “proximately caused” her injuries.
claims
that
Id. ¶ 58.
this
But as
explained by the Georgia Court of Appeals in Dynamic Cleaning
Service, Inc. v. First Financial Insurance Co., 208 Ga. App. 37,
38, 430 S.E.2d 33, 34 (1993), the Court in deciding an insurance
coverage issue cannot ignore the intentional misconduct that was
7
allegedly caused by the negligent conduct.
In Dynamic Cleaning,
an insurance policy excluded coverage for any claim based on
assault and battery.
A claim was brought against the insured
for negligently allowing an assault and battery to occur.
The
insured
contended
that
the
exclusion
should
not
because the complaint alleged a claim for negligence.
Id.
apply
Id.
The
court found that “[a]lthough the complaint alleges that [the
insured]
was
negligent
in
creating
the
circumstances
which
allowed the assault to occur, the injuries which give rise to
the cause of action arose out of and were clearly based on the
assault and battery.”
Id.
Thus, “the fact that [the insured]
may have negligently allowed the assault to occur d[id] not
negate the effect of the exclusion.”
O’Neill
were
negligent
in
creating
Id.
the
Here, even if Mr.
circumstances
which
allowed the intentional torts to occur—that is, he negligently
got drunk—the injuries giving rise to Jessica’s causes of action
arose
out
of
and
were
clearly
caused
by
the
intentional
misconduct that is not covered under the homeowner policy.
Finally, the Court finds Defendants’ reliance upon State
Farm Fire & Casualty Co. v. Morgan, 258 Ga. 276, 368 S.E.2d 509
(1988) misplaced.
Defendants rely on Morgan to support their
proposition that even though Jessica clearly alleges that her
injuries arose from intentional and malicious acts, a jury could
find
that
Mr.
O’Neill’s
intoxication
8
negated
his
intent.
Defendants’
exclusion
addition
argument
in
to
Morgan
the
ignores
differs
language
the
from
that
fact
the
that
the
exclusion
excludes
coverage
here.
coverage
for
In
bodily
injury that is “expected or intended by the insured,” Morgan,
258 Ga. at 276, 368 S.E.2d at 510, the policy here also excludes
bodily injury “caused by or resulting from an act or omission of
any insured which are crimes pursuant to the Georgia Criminal
Code.”
“the
Homeowner Policy at H1.
insured
lacks
the
This exclusion applies even if
mental
capacity
to
appreciate
the
criminal nature or wrongfulness of the act or omission or to
conform the insured’s conduct to the requirements of the law or
to form the necessary intent under the law.”
at H1.
Homeowner Policy
This exclusion also applies even if the bodily injury
“is of a different kind or degree than the insured knows or
ought
to
know
will
follow
from
the
insured’s
conduct”
and
“regardless of whether the insured is actually charged with, or
convicted of a crime.”
Id.
The Georgia courts have found
policies with this type of language to be distinguishable from
the policy in Morgan.
See Espanol v. Allstate Ins. Co., 268 Ga.
App. 336, 339, 601 S.E.2d 821, 823-24 (2004) (finding Morgan not
controlling and holding that voluntary intoxication did not make
intentional
injury
exclusion
inapplicable
because
policy
excluded coverage for intentional and criminal acts even if the
insured lacks the mental capacity to form the intent necessary
9
under the law).
this
broader
For some reason, the policy here only includes
exclusion
language
under
the
criminal
exclusion and not the intentional acts exclusion.
acts
Although the
intentional acts exclusion does exclude “willful acts the result
of which the insured knows or ought to know will follow from the
insured’s conduct,” the Court is not persuaded that the “ought
to
know”
Morgan.
language
Mr.
is
enough,
O’Neill
standing
presumably
alone,
could
to
argue
distinguish
that
his
intoxication deprived him of the ability of ascertaining what he
should have known.
issue
because
But the Court does not need to decide that
it
is
clear
constitute a criminal act.
that
Mr.
O’Neill’s
conduct
would
See e.g. O.C.G.A. §§ 16-5-20 (simple
assault); 16-5-23 (simple battery); 16-5-23.1 (battery); 16-5-24
(aggravated battery).
if
Mr.
Espanol,
O’Neill’s
268
This criminal act exclusion applies even
voluntary
Ga.
App.
intoxication
at
339,
601
affected
his
intent.
S.E.2d
at
823-24.
Accordingly, Morgan is inapposite, and no coverage exists under
Mr. O’Neill’s homeowner policy.
II.
Claims under the Auto Policy
In
addition
to
his
homeowner
policy,
Mr.
O’Neill
insured under an auto policy with Nationwide Affinity.
Ex. E, Auto Policy 1, ECF No. 1-5.
was
Compl.
That policy covers “damages
for which [Mr. O’Neill is] legally liable as a result of an
accident arising out of the: a) ownership; b) maintenance or
10
use; or c) loading or unloading” of his truck.
L1.
The
policy
excludes
coverage
for
Auto Policy at
loss
“[c]aused
intentionally by or at the direction of [Mr. O’Neill] . . .
including willful acts the result of which [he] knows or ought
to know will follow from [his] conduct.”
“[I]f
no
other
insurance
is
available,
Auto Policy at P5.
then
the
exclusion[]
. . . will apply only to amounts above the minimum limits of
financial responsibility required by the State of Georgia as of
the date of loss.”
Auto Policy at L5.
Plaintiffs contend that
there is no coverage under the auto policy because Jessica does
not allege damages as a result of an accident arising out of the
ownership,
maintenance,
or
use
of
Mr.
O’Neill’s
because Mr. O’Neill’s actions were intentional.
truck
Compl.
and
¶¶ 32-
35.
It is clear that Jessica’s claims do not arise from the
ownership, maintenance or use of Mr. O’Neill’s pickup truck.
For Jessica’s injuries to have resulted from the use of the
truck, “there must be such a causal connection as to render it
more likely that the injury ‘grew out’ of the use of the vehicle
. . . There must be more of a connection between the use of the
vehicle
and
the
resulting
injury
than
vehicle when the injury was sustained.”
mere
presence
in
the
See State Farm Mut.
Auto. Ins. Co. v. Myers, 316 Ga. App. 152, 153, 728 S.E.2d 787,
788 (2012) (internal quotation marks omitted) (finding sexual
11
assault committed inside vehicle did not arise out of “use” of
said vehicle); Payne v. Twiggs Cnty. Sch. Dist., 269 Ga. 361,
363,
496
S.E.2d
690,
692
(1998)
(finding
physical
attack
committed inside school bus did not arise out of “use” of bus
because bus was “only tangentially connected” to injuries as
“situs of the attack”).
“situs of the attack.”
Mr. O’Neill’s truck was merely the
Jessica’s claims clearly do not arise
from the “use” of the truck.
Moreover, the fact that the attack
culminated in Jessica being pushed out of the truck does not
constitute “use” of the truck for insurance coverage purposes.
“‘Use[,]’ while an admittedly elusive term, may be defined as
‘to employ for some purpose.’”
See Rustin v. State Farm Mut.
Auto. Ins. Co., 254 Ga. 494, 495, 330 S.E.2d 356, 358 (1985)
(quoting
The
American
Heritage
Dictionary
of
the
English
Language, 1980, Houghton Mifflin Co.) (finding employing car to
transport
insured
constitute
“use”
vehicle
to
injure
to
of
scene
car).
Jessica.
where
Mr.
he
shot
O’Neill
Rather,
it
did
was
victim
not
his
did
not
employ
the
own
alleged
intentional misconduct that caused Jessica’s injuries, including
any that resulted when she was shoved out of the truck.
The facts here are also distinguishable from those cases in
which
someone
suffered
an
injury
while
vehicle or a component of the vehicle.
actually
using
the
See Turner Transp. Co.
v. Warner, 168 Ga. App. 358, 359, 308 S.E.2d 845, 847 (1983)
12
(holding that an injury sustained while exiting a vehicle by way
of a ladder attached to the vehicle and intended for that use
was an accident “peculiar to the motor vehicle and intrinsically
related to the vehicle itself” such that it would be deemed to
have arisen from “use” of the vehicle for purposes of the former
Georgia “no-fault” statute).
Here, Jessica was not using the
vehicle or anything attached to the vehicle in any manner when
she
was
attacked
by
Mr.
O’Neill.
The
altercation
was
not
“peculiar to the vehicle” nor “intrinsically related to it.”
The truck was simply the location of the altercation and had
nothing but an incidental role in the injuries Jessica suffered.
Accordingly, no coverage exists under the auto policy.
CONCLUSION
Based
on
the
pleadings,
which
establish
the
undisputed
nature of Jessica’s claims asserted in the underlying lawsuit
and the provisions of the relevant insurance policies, it is
clear
that
coverage
for
Plaintiffs’
the
insurance
alleged
claims.
policies
do
Accordingly,
not
provide
Plaintiffs’
Motion for Judgment on the Pleadings (ECF No. 14) is granted.
Any recovery by Jessica will have to come from her father-inlaw’s pocket and not his insurance companies’.
IT IS SO ORDERED, this 8th day of November, 2013.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
13
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