v. Dorsey et al

Filing 43

ORDER AND REASONS denying 26 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 7/19/2011. (caa, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SHYRL BAGNERIS, ET AL

CIVIL ACTION

VERSUS

NO. 10-3357

CHRISTOPHER DORSEY, ET AL

SECTION “F”
ORDER & REASONS

Before the Court is the defendant Empire Fire & Marine
Insurance Company’s motion for summary judgment.

Because it is

premature, the motion is DENIED without prejudice.
Background
Gabriel Hart allegedly entered Shyrl and John Bagneris’s land
to direct a music video for the rap artist B.G.

The Bagnerises

have sued Hart, along with B.G. (under his real name Christopher
Dorsey), Taj Lewis, Chopper City Records, LLC, Entertainment One
U.S. LP, and Empire.

Among the their claims are trespass to land,

intrusion on seclusion, misappropriation, unjust enrichment, and
violations of the Lanham Act.

Entertainment One has also filed

cross-claims against Empire, Hart, and Lewis and third party claims
against Southern Icon Films of Atlanta, LLC.
Empire, which issued a liability insurance policy to Gabriel
Hart extending from October 8 to 13, 2009 (presumably the time
period over which the rap video was shot), moves for summary
judgment.

Empire asserts that any claim for benefits under the

policy are outside the scope of the plan’s coverage.

1

The plan

provides

coverage

for

bodily

injury

and

property

damage

but

excludes coverage for certain expected or intended injuries.1
Law & Analysis
Although it is true “a party may file a motion for summary
judgment

at

any

time

until

30

days

after

the

close

of

all

discovery,” FED. R. CIV. P. 56(b) (emphasis added), in practice,
summary judgment motions often implicate disputed issues of fact
which can only be resolved after some discovery takes place.
is such a case.

This

Whether coverage under Empire’s policy extends to

some of the defendants’ actions on the Bagnerises’ property depends
on clarification of the facts of what actually took place on their
property.

The facts necessary to resolve Empire’s motion are not

yet before the Court with any specificity and likely will not be
clear until key defendants have been served and some discovery has
taken place.

Empire’s motion is premature, and it is DENIED

without prejudice.2

1

The policy defines “bodily injury” as “bodily injury,
sickness or disease sustained by a person, including death
resulting from any of these at any time” and “property damage” as
“[p]hysical injury to tangible property, including all resulting
loss of use of that property.”
2

Also implicated are the interesting questions of what
constitute “bodily injury” and “property damage” within the
policy terms. See Preau v. St. Paul Fire & Marine Ins. Co., No.
10-30816, 2011 WL 2475835, at *2-*3 (5th Cir. June 23, 2011).
2

New Orleans, Louisiana, July 19, 2011.

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

3