LIBERTY MUTUAL FIRE INSURANCE COMPANY v. THOMAS et al
Filing
46
ENTRY granting Plaintiff's 26 Motion for Partial Summary Judgment (see Entry). Signed by Judge Richard L. Young on 4/23/2012. (PG)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
)
)
)
) Case No. 1:10-cv-1335-RLY-DKL
)
)
)
)
)
)
LIBERTY MUTUAL FIRE
INSURANCE COMPANY,
Plaintiff,
vs.
AARON THOMAS and ITEARICES
LINCEY as personal representative of
the Estate of Shawn Reed,
Defendants.
ENTRY GRANTING PARTIAL SUMMARY JUDGMENT
On April 21, 2009, Detective Jeffrey Patterson of the Indianapolis Metropolitan
Police Department was dispatched to the Family Video store at 30th and Georgetown
Road to investigate a shooting. When he arrived, he found the lifeless body of Shawn
Reed lying in the parking lot approximately 20 feet away from a Nissan Pathfinder SUV
which belonged to Aaron Thomas. The SUV had both front doors open, its lights on and
significant damage to its interior. Reed had been shot three times, a glancing wound to
his side and two shots into his back. Thomas had also suffered a gun shot wound and was
transported to Methodist Hospital. Thomas admitted shooting Reed, but claimed Reed
had shot him first when Thomas resisted being robbed by Reed. Thomas claimed to have
wrestled the gun away from Reed, as the two of them fought and rolled out of his SUV
and into the Family Video parking lot.
1
According to Thomas,1 in addition to his employment with the Indianapolis Fire
Department, he owns a business in the adult entertainment field. After encountering Reed
earlier that evening, he had asked Reed if he wanted to make some money participating in
a pornographic video/photo shoot at Thomas’s studio. Reed initially agreed to
participate, but after arriving at the studio he declined to engage in the activity and asked
to be dropped off at an apartment in the Speedway section of the Indianapolis
metropolitan area. Thomas agreed to give him a ride and transported Reed down 30th
Street in accordance with his directions. Reed was quiet and Thomas began to get a little
suspicious of him when he asked Reed the name of the apartment complex where he
wanted to go, but Reed did not know.
Thomas eventually stopped his SUV along the side of the road near an apartment
complex Reed was directing him toward. He told Reed he was not going any further, he
had driven him beyond where he had picked Reed up earlier in the evening and he should
just get out and walk the rest of the way. Reed did not leave and immediately became
very agitated and started yelling at Thomas, asserting that Thomas should take him to the
apartments. Thomas became more suspicious and concerned after Reed continued his
rage and refused to leave the vehicle, so he swung his SUV around and headed back in
the opposite direction on 30th Street until he reached the Family Video store, where
1
Because of Reed’s death, the only version of the circumstances leading up to the
shooting is the version told by Thomas in his deposition.
2
Thomas pulled into the parking lot in front of the store and demanded that Reed leave the
vehicle. Reed said nothing and would not leave the vehicle, so Thomas reached for his
cell phone to call the police. As he pulled his phone to him, Thomas saw a gun being
pointed at his head and when he jerked back the gun went off.
Thomas was shot in the shoulder and he claims he immediately wrapped his hands
around Reed’s hands and the gun in an effort to get the gun away from Reed. During the
struggle the transmission was shifted into neutral and the SUV began drifting through the
parking area toward the lot’s edge; meanwhile, Thomas failed in his effort to dislodge the
gun from Reed’s control. When the SUV stopped, Reed had control of the gun and
Thomas asked him what he wanted. Reed told Thomas he wanted all of his money and
Thomas emptied his pockets and gave Reed what cash he had. Reed then demanded the
vehicle as well, and while Thomas was telling Reed that he could have whatever he
wanted, Thomas saw another opportunity to go for the gun, which he did, lunging at
Reed.
Thomas describes what happened next as a “huge altercation” within the front
seats of the SUV, resulting in heavy damage to the interior and a cracked windshield. As
Thomas began to gain some advantage in the struggle over the gun, the door on the
passenger side of the SUV came open and the two rolled out of the vehicle and onto the
ground, still grappling over control of the handgun. Thomas gained enough control of the
gun to start pulling the trigger and he fired the gun until it stopped firing. Thomas did not
3
know exactly where the muzzle of the gun was pointed, how many shots were fired or
where the bullets were landing, until Reed moved away a couple of steps and turned to
look at Thomas. Thomas states that at that point he could tell by the look on Reed’s face
that Reed had been hit by a gunshot. Reed then fell to the ground. He had been shot
three times, a glancing wound to his side and two shots in his back. Thomas maintains
that the only intent he had with regard to his actions, after being shot, was to make sure he
was not shot again. He claims to have had no specific intent to shoot Reed in order to
alleviate the threat to his life, his intent was simply to make sure the gun could not shoot
him another time.
After Reed fell to the ground, Thomas noticed his own breathing was becoming
shallow and labored as he went down to his knees. He found his cell phone on the ground
and called 911. Witnesses at the video store had called the police as well after hearing a
shot, locking the store doors and running to the back of the store. Thomas kept
possession of the gun until the police arrived. Thomas was hospitalized for close to a
week but has recovered from his wound. Detective Patterson investigated the scene,
interviewed Aaron Thomas and others who had witnessed parts of the incident. At the
conclusion of his investigation, Patterson and a representative from the prosecutor’s
office concluded that Thomas had shot Reed in self-defense. No charges were brought
against Thomas.
On January 9, 2009, Shawn Reed’s mother, Itearices Lincey, filed a wrongful
4
death lawsuit in state court, on behalf of herself and Reed’s estate. She named as
defendants, the City of Indianapolis, the Indianapolis Fire Department and Aaron
Thomas. The lawsuit before this court was filed by Liberty Mutual Fire Insurance
Company (“Liberty Mutual”), which insured Thomas’s condominium and SUV through
two separate policies. Liberty Mutual seeks a declaratory judgment that neither of its
policies provide coverage to Aaron Thomas for the claims brought against him by
Itearices Lincey and that it has no obligation to defend him against the wrongful death
lawsuit. Liberty Mutual has moved for summary judgment with respect to the lack of
coverage provided under the automobile policy only.
I.
SUMMARY JUDGMENT STANDARD
The construction of an insurance policy and the determination of the rights and
obligations thereunder are questions of law which may be disposed of on summary
judgment. Amerisure, Inc. v. Wurster Constr. Co., 818 N.E.2d 998, 1001 (Ind.App.2004),
clarified on reh’g on other grounds, 822 N.E.2d 1115 (2005). The court will grant
summary judgment under Federal Rule of Civil Procedure 56 if a party presents evidence
that demonstrates the absence of a genuine issue of material fact. See Fed.R.Civ.P. 56;
Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The party seeking summary
judgment may rely on “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,” to show an absence of a genuine
issue of material fact. Celotex Corp., 477 U.S. at 324. If “the evidence is such that a
5
reasonable jury could return a verdict for the nonmoving party,” then a genuine issue of
material fact exists and the motion for summary judgment will be denied. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court views the facts in the light most
favorable to non-movants, drawing all reasonable inferences in their favor. Keeton v.
Morningstar, Inc., 667 F.3d 877, 884 (7th Cir. 2012).
II. CRITICAL POLICY PROVISIONS
Liberty Mutual’s automobile liability policy provides that it will “. . .pay damages
for . . . bodily injury . . . for which any insured becomes legally responsible because of an
auto accident.” There is no question that Aaron Thomas is an insured. The policy also
provides that Liberty Mutual will defend the insured against such claims, but that it “. . .
has no duty to defend any suit or settle any claim for bodily injury... not covered under
this policy.” An exclusion in the policy negates coverage “. . . for any insured . . . who
intentionally causes bodily injury. . . .”
III.
DISCUSSION
Reed’s death was the result of his being shot while both he and Thomas were
outside the SUV. Liberty Mutual contends that any liability which Thomas may have to
Lincey is not “because of an auto accident” and the use or ownership of the SUV was not
a predominate cause of Reed’s mortal injuries. Lincey and Thomas maintain that the
SUV was clearly intricately involved in the circumstances: the physical altercation
6
started in the SUV; Reed and Thomas were falling out of the vehicle when Thomas
gained control of the gun and began firing it; and, the SUV itself was allegedly an item
sought by Reed as a part of his robbery attempt. Consequently, Defendants argue that the
“use” of the vehicle was at issue and a question of fact precludes summary judgment.
The court disagrees with the Defendants.
Indiana law requires the court to interpret a contract, including an insurance
contract, giving all language its plain and ordinary meaning. Commercial Union Ins. v.
Moore, 663 N.E.2d 179, 180 (Ind.App. 1996). If there is no ambiguity in the language, a
court applies the policy language to the undisputed facts. Id. Further, an ambiguity does
not exist simply because the two sides to a dispute seek a different interpretation. State
Farm Mut. Auto. Ins. Co. v. Spotten, 610 N.E.2d 299, 300 (Ind.App. 1993).
In this instance, the policy clearly limits the insurer’s obligation to pay for personal
injury damages to a circumstance where Thomas has been found liable for the same
because of an “auto accident.” That is simply not the circumstance in this case. Damages
are being sought in the wrongful death lawsuit because Thomas shot Reed, and if Thomas
is found liable it will not be because of an “auto accident,” but because the fact-finder
determines that Thomas acted intentionally or in some manner other than to protect
himself.
Even if the wrongful death lawsuit resulted in a determination that Thomas was
7
liable for negligently shooting Reed, “[t]he accident did not arise out of the use of the
truck.” See generally Indiana Lumbermens Mut. Ins. Co. v. Statesman Ins. Co., 291
N.E.2d 897, 898 (Ind. 1973). For an auto accident to have caused Reed’s death, the
efficient and predominating cause of the accident must arise out of the use of the
automobile. Id. at 899. Here the proximate cause of Reed’s mortal wounds was not the
use of the SUV.
Defendants have not referred the court to any recorded cases where “auto
accident” has been interpreted to include an act that occurred entirely outside the vehicle,
as is the circumstance of this case with regard to Thomas’s firing of the shots that claimed
Reed’s life. In fact, the only case law cited by Defendants were decisions that examined
the issue of “intent” and found that whether an act was intentional or not was a question
of fact. While there may be an “intentional acts exclusion” in the automobile policy, that
is not the basis upon which summary judgment is being sought or granted. Thomas’s
intent is immaterial if the injuries did not occur because of an “auto accident.”
Accordingly, Plaintiff’s Motion For Partial Summary Judgment is granted and the court
finds that the automobile liability insurance policy issued by Liberty Mutual provides no
coverage to Thomas and the insurer is not obligated to defend Thomas on the basis of the
provisions of that policy.
8
IV.
CONCLUSION
For the reasons explicated in this entry, Plaintiff’s Motion For Partial Summary
Judgment (Docket # 26) is GRANTED.
SO ORDERED this 23rd day of April 2012.
__________________________________
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana
Electronic Copies to:
David Austin Cox
BAYLIFF, HARRIGAN CORD & MAUGANS, P.C.
dave.cox@bhcmlaw.com
Mark D. Gerth
KIGHTLINGER & GRAY
mgerth@k-glaw.com
Mark A. Hurt
hurtlawoffice@hotmail.com
Mitchell M. Pote
LAW OFFICE OF MITCHELL M. POTE
mitchell.pote@gmail.com
9
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?