Cohne v. Navigators Specialty Insurance Company
Filing
42
Judge William G. Young: ORDER entered. MEMORANDUM AND ORDER"For the foregoing reasons, this Court DENIES Cohnes motion for summary judgment, ECF No. 25 , and declares that Navigators has no duty to defend Cohne in either the Yianacopolus or th e Maltacea action. As the parties requested, this case will be administratively closed to await the outcome of those actions. At that time, any party may reopen this action should further proceedings appear necessary.SO ORDERED."(Sonnenberg, Elizabeth)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
)
Plaintiff,
)
)
v.
)
)
NAVIGATORS SPECIALTY INSURANCE
)
COMPANY,
)
)
Defendant.
)
___________________________________)
DAVID COHNE,
CIVIL ACTION
NO. 17-12540-WGY
YOUNG, D.J.
February 19, 2019
MEMORANDUM & ORDER
I. INTRODUCTION
David Cohne (“Cohne”) filed suit against Navigators
Specialty Insurance Company (“Navigators”) requesting a
declaratory judgment that Navigators has a duty to defend and to
indemnify him in two actions pending in the Massachusetts
Superior Court sitting in and for the County of Suffolk.
Removal, Ex. B, Pl.’s Compl., ECF No. 1-4.
Notice
Cohne also alleges
breach of contract, breach of the covenant of good faith and
fair dealing, and violation of Massachusetts General Laws
chapters 93A and/or 176D (“93A/176D”).
Id. at ¶¶ 23-40.
seeks summary judgment on Navigators’ duty to defend.
Cohne
Pl.’s
Mot. Summ. J. Count I (“Pl.’s Mot.”), ECF No. 25; Mem. Supp.
Pl.’s Mot. Summ. J. Count I, ECF No. 26 (“Pl.’s Mem.”).
For the reasons set forth below, this Court declares that
Navigators has no duty to defend, in essence ruling against
Cohne pursuant to Federal Rule of Civil Procedure 56(f)
(authorizing court to enter summary judgment against moving
party under proper circumstances).
A.
Procedural History
In November 2017, Cohne filed a complaint against
Navigators in the Massachusetts Superior Court sitting in and
for the County of Suffolk.
Pl.’s Compl.
action to this Court the following month.
No. 1.
Navigators removed the
Notice Removal, ECF
Cohne requests a declaratory judgment on Navigators’
duty to defend and to indemnify him and alleges that Navigators
breached its contract, breached the covenant of good faith and
fair dealing, and violated 93A/176D.
Pl.’s Compl. ¶¶ 23-40.
In February 2018, Cohne filed a motion for judgment on the
pleadings regarding Navigators’ duty to defend and the parties
fully briefed the issue.
Pl.’s Mot. J. Pleadings Count I, ECF
No. 10; Mem. Law Supp. Pl.’s Mot. J. Pleadings Count I, ECF No.
13; Opp’n Def. Pl.’s Mot. J. Pleadings, ECF No. 17; Reply Mem.
Supp. Pl.’s Mot. J. Pleadings Count I, ECF No. 18.
After a
motion hearing in March 2018, the Court denied the motion
without prejudice and administratively closed the case to await
the outcome of the underlying state tort cases.
Clerk’s Notes, ECF No. 20.
[2]
Electronic
On Cohne’s motion, the Court reopened the case in August
2018.
Pl.’s Mot. Re-Open Administratively Closed Case, ECF No.
22; Electronic Clerk’s Notes, ECF No. 24.
In September 2018,
Cohne filed a motion for summary judgment on Navigators’ duty to
defend, which the parties have now fully briefed.
Pl.’s Mot.;
Pl.’s Mem.; Opp’n Def. Pl.’s Mot. Summ. J. (“Def.’s Opp’n”), ECF
No. 34; Pl.’s Reply Mem. Supp. Mot. Summ. J. Count I (“Pl.’s
Reply”), ECF No. 36; Def.’s Sur-Reply Br. (“Def.’s Sur-Reply”),
ECF No. 39.
Cohne submitted a statement of undisputed facts,
Local Rule 56.1 Statement Undisputed Facts Supp. Pl.’s Mot.
Summ. J. Count I (“Pl.’s Statement Facts”), ECF No. 32, to which
Navigators responded, Defs.’ Resps. Pl.’s Rule 56.1 Statement
Facts (“Resp. Statement Facts”), ECF No. 35.
On November 29, 2018, this Court heard oral argument on
Cohne’s motion for summary judgment and took it under
advisement.
B.
See Electronic Clerk’s Notes, ECF No. 41.
Factual Background
On both August 10 and August 19, 2014, the Boston Ballroom
Corporation (“BBC”) employed Cohne as a bouncer at the Royale
Night Club (the “Club”) on Tremont Street in Boston,
Massachusetts.
Pl.’s Statement Facts ¶¶ 2-3; Resp. Statement
Facts ¶¶ 2-3; Pl.’s Mem., Ex. 2, Maltacea Compl. ¶¶ 9-10, ECF
No. 26-2.
Two lawsuits are pending in the Suffolk County
Superior Court against Cohne and BBC, one brought by Keith
[3]
Yianacopolus (“Yianacopolus“) and the other by James Maltacea
(“Maltacea”), for incidents occurring at and near the Club.
Pl.’s Statement Facts ¶¶ 1-4; Resp. Statement Facts ¶¶ 1-4.
Navigators insured BBC from July 2, 2014 through July 2, 2015
pursuant to policy number CE14CGL136160IC (the “Policy”).
Pl.’s
Statement Facts ¶ 18; Resp. Statement Facts ¶ 18.
The Yianacopolus Action
In November 2016, Yianacopolus sued Cohne and BBC.
Mem., Ex. 1, Yianacopolus Compl., ECF No. 26-1.
Pl.’s
He alleged that
in the early morning hours of August 19, 2014, outside the front
door of the Club, Cohne “suddenly,” “without any warning,” and
“without provocation” committed an assault and battery against
him.
Id. at ¶¶ 7-10.
“A short time later,” Yianacopolus
alleged, Cohne followed him “out onto the street and committed”
a second assault and battery against him, “using a baton as a
weapon.”
Id. at ¶ 11.
Yianacopolus alleged that Cohne was “at
all times . . . acting within the scope of his employment
duties” and “under the direction and control” of BBC.
Id. at ¶¶
12-13.
Yianacopolus brought both a negligence and a civil assault
and battery claim against Cohne.
Id. at ¶¶ 15-19, 26-30.
In
the negligence claim, Yianacopolus alleged that Cohne’s breach
of his duty to use reasonable care as a doorman caused
Yianacopolus’ injury.
Id. at ¶¶ 16-19.
[4]
Yianacopolus further
alleged that at all relevant times he “exercised reasonable care
for his own safety.”
Id. at ¶ 18.
In July 2018, Cohne’s attorneys deposed Yianacopolus.
Pl.’s Mem., Ex. 3, Yianacopolus Dep., ECF No. 26-3.
There,
Yianacopolus testified that he entered the Club at around eleven
o’clock p.m. on the night of the incident and consumed alcohol.
Id. at 37:10-24.
time” he left.
He stated that at some point “around closing
Id. at 51:7-8.
He testified that as he was
trying to re-enter the Club to speak with a woman whom he had
met earlier, id. at 53:3-19, 71:11-21, Cohne, who was working at
the door, id. at 58:8-18, “negligently used excessive force” by
“striking [him] in the face,” id. at 64:20-65:18.
During his deposition, Yianacopolus agreed that a bouncer
has an obligation to ensure the safety of patrons of the
establishment for which he works, id. at 65:19-66:8, and
clarified that the basis of his negligence claim is Cohne’s
failure to undertake safer alternatives to keep him out of the
club and his assessment that Cohne used force “above and beyond
what a bouncer should do in that situation,” id. at 67:8-20.
Yianacopolus was not able to provide specific examples of safer
alternatives, but suggested that verbal warnings, which he
claims Cohne failed to provide, would have been better than “his
fist.”
Id. at 66:15-70:8.
[5]
In May 2018, Cohne provided sworn answers to
interrogatories from BBC about the incident at the core of
Yianacopolus’ complaint.
Pl.’s Mem., Ex. 4, Cohne’s Answers
Interrogs. (“Cohne’s Answers”) 3, ECF No. 26-4.
Cohne stated
that Yianacopolus “appeared to be intoxicated” when “attempting
to enter the [C]lub by pushing his way through the inside
hallway.”
Id.
Cohne stated that he began by verbally telling
Yianacopolus not to enter, but Yianacopolus “proceeded to throw
his shoulder into [him] while making threatening remarks.”
Id.
Cohne claimed that he then “made physical contact” with
Yianacopolus in a continued effort to prevent him from going
inside, after which “Yianacopolus subsequently threw a punch at
[him].”
Id.
Cohne stated that at that point he “feared for
[his] own personal safety,” so he again “made physical contact
with [Yianacopolus].”
Id.
The Maltacea Action
In July 2017, Maltacea sued Cohne and BBC.
Maltacea Compl.
Maltacea alleged that on the early morning of August 10, 2014,
Cohne, while acting as a bouncer of the Club and “in the due
course of his employment . . . without provocation, right, or
reason, struck and beat [Maltacea] with a metal baton and caused
[him] severe physical injuries.”
Id. at ¶¶ 9-10.
Maltacea’s
complaint against Cohne includes one count of “Negligent and
Excessive Force,” which alleges that Cohne “negligently caused
[6]
and did cause a harmful contact with [Maltacea]’s person.”
Id.
at ¶¶ 27-31.
Navigators’ Policy
Two parts of the Policy relate to this case: the Commercial
General Liability Coverage Form CG 00 01 04 13 (“CGLC”), Pl.’s
Mem., Ex. 5, Navigators Policy 13-28, ECF No. 26-5, and the
Assault And Battery And Negligent Supervision Limitation
(“Limitation”), id. at 43-44.
The CGLC lays out the situations covered by the Policy.
Id. at 13-28.
In relevant part, the CGLC provides the
following:
1.
Insuring Agreement
a. We 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. We will have the right and duty
to defend the insured against any “suit” seeking
those damages. However, we will have no duty to
defend the insured against any “suit” seeking
damages for “bodily injury” or “property damage” to
which this insurance does not apply. . . .
b. This insurance applies to “bodily injury” and
“property damage” only if:
1) The “bodily injury” or “property damage”
is caused by an “occurrence” that takes place
in the “coverage territory”; . . .
2. Exclusions . . . This insurance policy does not apply
to:
a. “Bodily injury” or “property damage” expected
or intended from the standpoint of the insured.
This exclusion does not apply to “bodily injury”
[7]
resulting from the use of reasonable
protect persons or property.
force
to
Navigators Policy 13-14.
The CGLC defines an “occurrence” as “an accident, including
continuous or repeated exposure to substantially the same
general harmful conditions.”
Id. at 27.
The CGLC specifies
that “[t]hroughout this policy the words ‘you’ and ‘your’ refer
to the Named Insured shown in the Declarations, and any other
person or organization qualifying as a Named Insured under this
policy,” and “[t]he word ‘insured’ means any person or
organization qualifying as such under Section II - Who is An
Insured.”
Id. at 13.
In addition, the Common Policy
Declarations (“Declarations”) refer solely to BBC as a “Named
Insured.”
Id. at 3.
The Limitation is an endorsement that changes the general
rule in certain circumstances.
Id. at 43-44.
In relevant part,
the Limitation provides the following:
I.
Except as provided in item II below, this policy
does not apply to “bodily injury,” “property
damage,” or “personal and advertising injury”
arising from:
A. assault and/or battery committed or alleged to
have been committed by any person; or
B. physical
assault,
abuse,
molestation,
or
habitual neglect; or licentious, immoral, amoral
or other behavior that was committed or alleged
to have committed by any insured or by any person
for whom any insured is legally responsible; or
[8]
C. . . .
D. any act or omission connected directly or
indirectly with the prevention or suppression of
any act indicated in items A through C above
including the protection of persons or property,
whether caused by or at the instigation or
direction of any insured, an insured’s employee,
an insured’s patrons or guests, or volunteers
working for or on behalf of an insured, or any
other person.
This exclusion applies regardless of the legal
theory or basis upon which the insured is alleged
to be legally liable or responsible, in whole or in
part, for any Damages arising out of assault,
battery, physical abuse, and/or sexual abuse,
including but not limited to assertions of improper
or negligent hiring, employment or supervision,
failure to protect the other party, failure to
prevent the assault, battery, physical abuse and/or
sexual abuse, or failure to discharge the employee.
II.
Notwithstanding the foregoing, we shall pay up to
the following amounts you become obligated to pay
for all damages and claim expenses which result
from claims or “suits” based on allegations of any
of the acts or omissions in item I above.
$250,000
$250,000
any one claim or suit.
aggregate for the policy period.
Navigators Policy 43.
[9]
II.
ANALYSIS
Cohne contends that: (1) he is “an insured” under the
Policy; (2) the two underlying complaints state negligence
claims covered by the Policy; and (3) he qualifies as a “Named
Insured,” so even if the Policy would not ordinarily cover the
underlying allegations, they are covered by an exception in
Section II of the Limitation.
See Pl.’s Mem. 5-17.
Navigators
refutes each of these arguments and contends that they have no
duty to defend Cohne in either action.
Opp’n.
See generally Def.’s
The Court concludes that Navigators is correct, but
rests on somewhat different reasoning than that Navigators
advances.
A.
Standard of Review
A motion for summary judgment shall be granted when “there
is no genuine issue as to any material fact, and . . . the
moving party is entitled to judgment as a matter of law.”
Saunders v. Town of Hull, 874 F.3d 324, 326 (1st Cir. 2017)
(citing Fed. R. Civ. P. 56(c)).
A genuine issue of material
fact exists when the evidence is “sufficiently open-ended to
permit a rational factfinder to resolve the issue in favor of
either side.”
National Amusements, Inc. v. Town of Dedham, 43
F.3d 731, 735 (1st Cir. 1995).
A fact is material when it “has
the potential to change the outcome of the suit.”
Calero–Cerezo
v. United States Dep’t of Justice, 355 F.3d 6, 19 (1st Cir.
[10]
2004) (citing Parrilla-Burgos v. Hernandez-Rivera, 108 F.3d 445,
448 (1st Cir. 1997)).
The moving party has the initial burden to show an “absence
of evidence to support the nonmoving party’s case.”
Sands v.
Ridefilm Corp., 212 F.3d 657, 661 (1st Cir. 2000) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
When this
is accomplished, the burden of production shifts to the
nonmoving party to set forth specific facts to show that there
is a genuine issue for trial.
Quinones v. Houser Buick, 436
F.3d 284, 289 (1st Cir. 2006).
The Court must examine the
entire record in the light most favorable to the nonmoving party
and draw all reasonable inferences in her favor.
O’Connor v.
Steeves, 994 F.2d 905, 907 (1st Cir. 1993).
B.
The Yianacopolus Action 1
Cohne is an “Insured” under the Policy
Cohne is an “insured” under the Policy “only for acts
within the scope of [his] employment by [BBC] or while
The Yianacopolus action involved two alleged incidents,
one at the Club door and another outside in the street. See
supra section I.B.1. For the purpose of evaluating whether
Navigators has a duty to defend Cohne, the parties and this
Court focus only on the first incident. See Pl.’s Mem. 9;
Def.’s Opp’n 1. Pursuant to the “in for one, in for all” rule
in insurance law, “where an insurer is obligated to defend an
insured on one of the counts alleged against it, the insurer
must defend the insured on all counts, including those that are
not covered.” Mount Vernon Fire Ins. Co. v. Visionaid, Inc.,
477 Mass. 343, 351–52 (2017). Cohne’s own arguments give rise
to an inference that it is unlikely the second alleged incident
1
[11]
performing duties related to the conduct of [BBC].”
Policy 22.
Navigators
The parties dispute whether Cohne was acting within
the scope of his employment when he committed the alleged
misconduct.
See Pl.’s Mem. 6-7; Def.’s Opp’n 3.
Under Massachusetts law, an employee’s conduct falls within
the scope of his employment if it: (1) ”is of the kind he is
employed to perform”; (2) “occurs substantially within the
authorized time and space limits”; and (3) “is motivated, at
least in part, by a purpose to serve the employer.”
Wang Labs.,
Inc. v. Business Incentives, Inc., 398 Mass. 854, 859 (1986).
Regarding the first prong, “it is ordinarily the actual and
customary, rather than formally described, duties which
determine scope of employment.”
399 Mass. 585, 590 (1987).
Howard v. Town of Burlington,
When the employee’s conduct at issue
is a tort, “[t]he question is not whether the employee committed
a tort, but whether he was performing the kind of work he was
hired to perform when he allegedly committed the tort.”
Chase
v. United States Postal Serv., Civ. A. No. 12-11182-DPW, 2013 WL
5948373, at *15 (D. Mass. Nov. 4, 2013) (Woodlock, J.).
Here, the alleged assault was committed when Cohne was
performing his duty as a bouncer at the Club’s door to protect
the safety of its patrons, and thus the first Wang Labs. prong
(on the street) could give rise to a viable negligence claim.
See generally Pl.’s Mem.
[12]
is met.
See 398 Mass. at 859.
The second prong is also met
because the alleged assault occurred at the Club where Cohne was
employed, and during his shift.
See id.
As to the third prong, “[t]he fact that the predominant
motive of the agent is to benefit himself does not prevent the
act from coming within the scope of employment as long as the
act is otherwise within the purview of his authority.”
Id.
In
other words, this prong is not satisfied when the employee acted
only “from purely personal motives . . . in no way connected
with the employer’s interests.”
Pinshaw v. Metropolitan Dist.
Comm’n, 402 Mass. 687, 694 (1988) (quoting W. L. Prosser & W. P.
Keeton, Prosser & Keeton on the Law of Torts 506 (5th ed.
1984)).
Even if Cohne had harbored personal animus against
Yianacopolus when he resorted to force against him, a reasonable
factfinder would be hard-pressed to conclude that Cohne was not
motivated at least in part by a purpose to serve the Club when
he committed the alleged assault.
See Chase, 2013 WL 5948373,
at *16 (specifying that even if the employee who committed the
tort has been “concerned primarily with” his personal interest,
the third prong of the Wang Labs. test is met).
Thus, the third
prong is also met here.
The offensive nature of an intentional tort does not
necessarily place it outside of an employee’s scope of
[13]
employment.
See, e.g., McIntyre ex rel. Estate of McIntyre v.
United States, 545 F.3d 27, 38-47 (1st Cir. 2008) (upholding
district court’s determination that FBI agent acted within scope
of his employment when he revealed informant’s name to another
FBI source (a gang leader), leading to informant’s murder);
Mangino v. United States, Civ. A. No. 05-12251-GAO, 2006 WL
2033196, at *3 (D. Mass. July 19, 2006) (O’Toole, J.) (rejecting
argument that doctor’s alleged fraud was outside scope of his
employment because he was not hired to commit fraud, and
observing that Massachusetts law recognizes employer liability
for employees’ negligence and intentional torts).
For an assault to be within the scope of employment, there
is an additional required showing that “the employee’s assault
was in response to . . . conduct which was presently interfering
with the employee’s ability to successfully perform his duties.”
Miller v. Federated Dep’t Stores, Inc., 364 Mass. 340, 350
(1973).
Assaults in this context “constitute acts committed
within the scope of employment, in that they stem from and
directly relate to the frustration of the ability to perform on
the assignments for which the employee is presently
responsible.”
Id.
[14]
Here, the alleged assault 2 occurred when Yianacopolus
demanded entry into the Club.
Pl.’s Statement Facts ¶¶ 15-17;
Resp. Statement Facts ¶¶ 15-17.
Yianacopolus’ demand interfered
with Cohne’s ability to perform his duty to protect the Club and
prevent unauthorized access.
See Pl.’s Mem. 10.
was in direct response to this interference.
Cohne’s action
Pl.’s Statement
Facts ¶¶ 15-17; Resp. Statement Facts ¶¶ 15-17.
Therefore,
Cohne acted within the scope of his employment when committing
the alleged assault.
See Commonwealth v. Jerez, 390 Mass. 456,
461–63 (1983) (holding employee’s alleged intentional tort in
response to interference with his exercise of his functions fell
within his scope of employment).
Navigators’ argument that Cohne’s assault was not related
to BBC’s business is unavailing.
Navigators directs the Court’s
attention to Dilenno v. 25th Hour Inc., Civ. A. No. 92-3063-RPP,
1994 WL 3413, at *1 (S.D.N.Y. Jan. 5, 1994).
Def.’s Opp’n 3.
In this case, a New York district court upheld a jury finding
that a bouncer’s battery against a would-be patron was outside
the scope of his employment.
Dilenno, 1994 WL 3413, at *1.
Because an employee’s conduct requires an additional
showing to be within the scope of employment if it was
intentional, see Miller, 364 Mass. at 350-51 (holding that
employee’s assault is only in scope of employment if it was in
response to “conduct which was presently interfering with the
employee’s ability to perform his duties successfully”), the
Court assumes without deciding that Cohne assaulted
Yianacopolus.
2
[15]
Multiple factors not present here led the court to conclude that
the jury verdict was reasonable, including that the bouncer had
“been provoked by plaintiff’s actions and racist remarks and
that he was a considerable distance away from the entrance” of
the club when the assault occurred.
Id.
In the Yianacopolus action, Cohne is an “insured” under the
Policy because he acted within the scope of his employment when
committing the first alleged assault.
Applicability of the Policy to the Claims in the
Underlying Yianacopolus Complaint
a.
The Standard Governing Duty to Defend
Under Massachusetts law, “[t]he legal standards governing
an insurer’s duty to defend are slightly different than those
conventionally applied to a motion for summary judgment.”
Metropolitan Prop. & Cas. Ins. Co. v. Devlin, 95 F. Supp. 3d
278, 281 (D. Mass. 2015) (Saris, J.).
A court ought hold on
summary judgment that an insurer has a duty to defend an insured
if “the allegations in the third-party complaint are reasonably
susceptible of an interpretation that they state or adumbrate a
claim covered by the policy terms.”
Trustees of Tufts Univ. v.
Commercial Union Ins. Co., 415 Mass. 844, 847 (1993).
“The duty
to defend is determined based on the facts alleged in the
complaint, and on facts known or readily knowable by the insurer
that may aid in its interpretation of the allegations in the
[16]
complaint.”
Ferreira v. Chrysler Grp. LLC, 468 Mass. 336,
342(2014) (quoting Metropolitan Prop. & Cas. Ins. Co. v.
Morrison, 460 Mass. 352, 357(2011)).
A duty to defend attaches
when the underlying complaint shows, “through general
allegations, a possibility that the liability claim falls within
the insurance coverage.”
Mass. 194, 201 (2010).
Billings v. Commerce Ins. Co., 458
It is not necessary “that the facts
alleged in the complaint specifically and unequivocally make out
a claim within the coverage.”
Id.
An insurer has no obligation to defend “when the
allegations in the underlying complaint lie expressly outside
the policy coverage and its purpose.”
Herbert A. Sullivan, Inc.
v. Utica Mut. Ins. Co., 439 Mass. 387, 395-96 (2003) (internal
citations and quotations omitted) (citing Timpson v.
Transamerica Ins. Co., 41 Mass. App. Ct. 344, 347 (1996)).
b.
Consideration of Extrinsic Evidence
As a threshold matter, this Court must determine whether to
consider evidence extrinsic to the underlying complaint because
Cohne’s argument that Yianacopolus provoked him relies on
Cohne’s Answers to Navigators’ interrogatories.
Pl.’s Mem. 8-9.
Navigators urges the Court not to consider this extrinsic
evidence, contending that it impermissibly contradicts the
Yianacopolus complaint.
Def.’s Sur-reply 2-3.
disagrees.
[17]
This Court
The Yianacopolus complaint brings both a negligence and an
assault and battery claim against Cohne.
15-19, 26-30.
Yianacopolus Compl. ¶¶
The complaint alleges that outside the front door
of the Club, Cohne committed an assault and battery against
Yianacopolus, which was “undertaken suddenly,” “without any
warning,” and “without provocation.”
Id. at ¶¶ 5, 7-10.
Yianacopolus’ deposition testimony supplements these facts,
alleging that Cohne “negligently used excessive force” by
“striking [Yianacopolus] in the face” when trying to keep him
out, and clarifies that the basis of his negligence claim is
Cohne’s failure to undertake safer alternatives to keep him out
of the club.
Yianacopolus Dep. 64:20-69:21.
Cohne’s answers, however, tell a different story.
Cohne
stated that it was Yianacopolus who first threw his shoulder
into Cohne and made threatening remarks.
Cohne’s Answers 3.
Cohne stated that Yianacopolus then threw punches at him before
Cohne “made physical contact” with Yianacopolus to prevent him
from entering the Club and in fear for his personal safety.
Id.
These allegations contradict the Yianacopolus complaint, which
allege that the plaintiff did not provoke Cohne.
Yianacopolus
Compl. ¶ 10.
Massachusetts courts may use extrinsic facts to aid their
interpretation of underlying complaints, but “not as independent
factual predicates for a duty to defend.”
[18]
Open Software Found.,
Inc. v. United States Fid. & Guar. Co., 307 F.3d 11, 15 (1st
Cir. 2002) (interpreting Massachusetts law).
Extrinsic facts
are used to “add substance and meaning to skeletal claims only
adumbrated in the complaint.”
Id. at 16.
Courts are aware of
the risk that extrinsic facts could be “misused by insureds
seeking to transform a skeletal claim in the underlying
complaint into an allegation arguably covered by the liability
policy but unrelated to an actual claim in the complaint.”
Id.
An insured may not, “in the absence of a complaint that requires
coverage, force its insurer to defend the insured by simply
telling the insurer facts which would create coverage.”
Boston
Symphony Orchestra, Inc. v. Commercial Union Ins. Co., 406 Mass.
7, 15 (1989).
Cohne, relying substantially on House of Clean, Inc. v. St.
Paul Fire & Marine Ins. Co., 705 F. Supp. 2d 102 (D. Mass. 2010)
(Gorton, J.), argues that the Court ought consider the answers
because they “add substance and meaning to [the] complaint’s
skeletal allegations.”
Pl.’s Reply 4.
In House of Clean, the
insurance policy excluded the discharge of pollutants in routine
business activities but provided an exception to cover those
pollutants that discharged in a “sudden and accidental” way.
705 F. Supp. 2d at 106 (internal citations and quotations
omitted).
The underlying complaint alleged that the insured
released contaminants but did not contain any details showing
[19]
the release could have been sudden and accidental.
09.
Id. at 107-
The court in that case rejected the insurance company’s
contention that the court ought not consider evidence that
pollution was sudden and accidental because it came only in the
form of “the biased affidavits of” the insured.
Id. at 108.
Acknowledging that the insured’s affidavit “must be carefully
scrutinized for bias,” the court held that such extrinsic facts
added substance to the underlying claims and created a factual
dispute as to whether the release was “sudden and accidental.”
Id. at 109.
Navigators attempts to distinguish House of Clean
by arguing that the additional information in that case
supplemented the underlying plaintiff’s complaint, while here
the answers contradict Yianacopolus’ version of the facts.
Def.’s Sur-reply 2-3.
House of Clean, Inc. is analogous to the case at bar.
Although “an insurer must give consideration to facts outside
the complaint [only] when it considers the allegations in the
complaint to determine if coverage exists,” Boston Symphony
Orchestra, 406 Mass. at *15, this Court identifies no law
explicitly prohibiting consideration of extrinsic evidence when
such evidence contradicts facts alleged in the underlying
complaint, and Navigators does not proffer any precedent that
draws this technical distinction.
Just as there is a risk that
an insured could easily create coverage by simply denying the
[20]
allegations in the complaint and coming up with a contradictory
narrative, as Navigators argues, Def.’s Sur-Reply 2, there is
also a risk that the underlying plaintiffs could exclude
information that is “potentially detrimental to their claims,
such as an admission that [Yianacopolus] provoked Cohne,” Pl.’s
Reply 5.
It would be unduly preferential to Navigators for this
Court to give no consideration to Cohne’s Answers.
“[U]ntil
there is an unalterable determination as to the nature of the
underlying claim, any declaration of rights concerning the
insurer’s duty to defend cannot be conclusive.”
Lumbermens Mut.
Cas. Co. v. Belleville Indus., Inc., 407 Mass. 675, 686 (1990).
Therefore, this Court exercises its discretion to consider the
extrinsic evidence that Yianacopolus attacked Cohne before Cohne
resorted to force.
That said, at this stage, the Court is in no position to
weigh the evidence as to provocation.
See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986) (“[A]t the summary
judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.”).
As a result,
whether Yianacopolus provoked Cohne remains a fact under genuine
dispute.
Nonetheless, this fact is not material to the Court’s
[21]
determination on Navigators’ duty to defend because, regardless
of provocation, at least one of the Policy’s exclusions apply.
c.
General Applicability of the Policy
The CGLC section of the Policy provides liability coverage
for an “occurrence,” which is an “accident.”
13, 27.
Navigators Policy
“Accident,” by definition, “implies the unexpected.”
Smartfoods, Inc. v. Northbrook Prop. & Cas. Co., 35 Mass. App.
Ct. 239, 242 (1993).
Massachusetts courts construe the word
“accident” broadly in the insurance context.
See Quincy Mut.
Fire Ins. Co. v. Abernathy, 393 Mass. 81, 84 (1984) (noting that
“the resulting injury which ensues from the volitional act of an
insured is still an ‘accident’ within the meaning of an
insurance policy if the insured does not specifically intend to
cause the resulting harm or is not substantially certain that
such harm will occur”).
In other words, the “occurrence”
provision excludes from coverage harm caused by the insured if
the insured intended not only the harm-causing act, but the harm
itself.
See id.
The Policy itself corroborates this interpretation, as the
CGLC specifies that it does not apply to bodily injury “expected
or intended from the standpoint of the insured.”
Policy 14.
Navigators
Nonetheless, the CGLC carves out an exception to
this general exclusionary rule, stating that “[t]his exclusion
[22]
does not apply to ‘bodily injury’ resulting from the use of
reasonable force to protect persons or property.”
d.
Id.
Applicability of the Limitations
The Policy’s Limitation section further expands the scope
of those injuries excluded from the Policy’s coverage.
The
Limitation states that the Policy neither applies to injuries
arising from assault and battery committed “by any person,” nor
to acts connected with the prevention or suppression of assault
or battery, even when such acts are intended to protect persons
or property.
Id. at 43.
The First Circuit acknowledges that:
[A]n endorsement or rider attached to an insurance
policy becomes and forms a part of the contract; that
the policy and the endorsement or rider shall be
construed together; and that where the provisions in the
body of the policy and those in the endorsement or rider
are in irreconcilable conflict the provisions contained
in the endorsement or rider will prevail over those
contained in the body of the policy.
National Union Fire Ins. Co. v. Lumbermens Mut. Cas. Co., 385
F.3d 47, 55 (1st Cir. 2004) (internal citations and quotations
omitted).
Here, the Limitation is attached to the Policy and is
intended to modify the CGLC.
See Navigators Policy 43 (“This
endorsement modifies insurance provided under the following:
Commercial General Liability Coverage Part”).
Thus, the
Limitation supersedes the CGLC when the provisions conflict.
[23]
e.
Applying the Policy to Yianacopolus’ Claims
This Court first assumes that Yianacopolus initially
attacked Cohne before Cohne responded with force.
At first
glance, it appears that this provocation renders Cohne’s conduct
eligible for coverage under the Policy.
See id. at 14 (carving
out injuries “resulting from the use of reasonable force to
protect persons or property” from bodily injury exclusion).
The
Limitation, however, squarely excludes coverage for injuries
arising from Cohne’s conduct, because there is little doubt that
Yianacopolus’ alleged provocation was an assault.
See id. at 43
(excluding from coverage “any act . . . connected directly or
indirectly with the prevention or suppression of” an assault).
Although the Limitation renders the reasonable force
exception in the CGLC meaningless in this case, this Court gives
priority to the plain meaning of the Policy.
See Certain
Interested Underwriters at Lloyd’s v. Stolberg, 680 F.3d 61, 69
(1st Cir. 2012) (“Massachusetts law dictates that we follow the
plain language of the policy, even though some terms may be
rendered redundant or superfluous in particular instances.”);
see also Ardente v. Standard Fire Ins. Co., 744 F.3d 815, 819
(1st Cir. 2014) (“[The] label [‘redundancy’] surely is not a
fatal one when it comes to insurance contracts . . . where
redundancies abound.”) (alterations in original) (quoting TMW
Enters. v. Federal Ins. Co., 619 F.3d 574, 577 (6th Cir. 2010)).
[24]
This is particularly so when a redundancy does not render one
provision completely frivolous.
Underwriters, 680 F.3d at 67-68.
Certain Interested
Here, there still exist
imaginable circumstances where the use of reasonable force to
protect persons or property would not relate to the prevention
or suppression of the intentional acts listed in items A through
C of Limitation’s section I, see Navigators Policy 43, such as
during natural disasters.
Moreover, although the Limitation has a broader scope of
exclusion than those that exclude only injuries resulting from
assault and battery, the Policy still covers plenty of negligent
conduct, and the Policy is not void as a matter of public
policy.
See Surabian Realty Co. v. NGM Ins. Co., 462 Mass. 715,
723 (2012) (“A policy is not illusory simply because it contains
a broad exclusion, so long as it provides coverage for some
acts.”); Bagley v. Monticello Ins. Co., 430 Mass. 454, 459
(1999) (“[W]here there were other instances in which coverage
would still be provided under the policy,” the policy was not
illusory even when, “as a practical matter, application of the
provision resulted in very limited coverage.”) (citing Smart v.
Safety Ins. Co., 419 Mass. 144, 147-48 (1994)).
As a result,
the Policy does not cover Cohne’s use of force in response to
Yianacopolus’ alleged physical provocation.
[25]
Accordingly, if
Yianacopolus provoked Cohne, Navigators does not have a duty to
defend.
If Yianacopolus did not provoke Cohne, this Court’s
conclusion on Navigators’ duty to defend stands.
Section I,
item A of the Limitation excludes from coverage injuries arising
from assault and battery committed “by any person.”
Policy 43.
Navigators
Section I further notes that “[t]his exclusion
applies regardless of the legal theory or basis upon which the
insured is alleged to be legally liable or responsible, [i]n
whole or in part, for any Damages arising out of assault [and]
battery.”
Id.
Massachusetts courts read the phrase “arising
out of” expansively, interpreting it as falling “somewhere
between proximate and ‘but for’ causation -- an intermediate
causation standard.”
Brazas Sporting Arms, Inc. v. American
Empire Surplus Lines Ins. Co., 220 F.3d 1, 7 (1st Cir. 2000);
see also Bagley, 430 Mass. at 457 (specifying that phrase
“arising out of” incorporates “a greater range of causation than
that encompassed by proximate cause under tort law” and
“suggest[s] a causation more analogous to ‘but for’ causation”).
Moreover, it is well-established in Massachusetts that
“[i]t is the source from which the [underlying] plaintiff’s
personal injury originates rather than the specific theories of
liability alleged in the complaint which determines the
insurer’s duty to defend.”
Bagley, 430 Mass. at 458 (emphasis
[26]
in original) (quoting New England Mut. Life Ins. Co. v. Liberty
Mut. Ins. Co., 40 Mass. App. Ct. 722, 727 (1996)).
Thus, the
key inquiry, assuming no provocation, is whether Yianacopolus’
negligence claim against Cohne has an independent factual basis.
Cohne, relying mainly on Preferred Mut. Ins. Co. v. Gamache
(“Gamache”), 42 Mass. App. Ct. 194 (1997) (vacating summary
judgment for insurer because ambiguity in policy’s intentional
act exclusion meant claimant’s allegations were reasonably
susceptible of an interpretation covered by the policy), argues
that Yianacopolus’ negligence claim is reasonably susceptible of
an interpretation covered by the Policy because his intent to
injure Yianacopolus is disputed.
Pl.’s Mem. 7-9.
Cohne argues
that negligence liability arises precisely because of the nature
of his employment as a bouncer and, consequently, a denial of
coverage “would be inconsistent with the reasonable expectations
of the parties and would render the coverage afforded to Cohne
illusory.”
Id. at 9-10.
Navigators emphasizes that in Gamache,
the insured’s intent to cause harm was disputed, see 42 Mass.
App. Ct. at 201, while here, the Court can infer Cohne’s intent
as matter of law.
Def.’s Opp’n 4.
Navigators is correct that
this distinction is dispositive.
Assuming now that there was no provocation, the relevant
factual basis is that Cohne committed an assault and battery
outside the Club door -- “suddenly,” “without any warning,” and
[27]
“without provocation” -- against Yianacopolus, Yianacopolus
Compl. ¶¶ 9-10, and Cohne “negligently used excessive force” by
“striking [Yianacopolus] in the face,” Yianacopolus Dep. 58, 6165.
These allegations describe only intentional acts of assault
and battery and could not give rise to negligence liability.
Although Cohne contends that his intent to harm is disputed,
“[t]he act of striking another in the face is one which we
recognize as an act so certain to cause a particular kind of
harm that we can say a person who performed the act intended the
resulting harm, and his statement to the contrary does nothing
to refute that rule of law.”
Worcester Ins. Co. v. Fells Acres
Day Sch., Inc., 408 Mass. 393, 400 (1990); see also Liberty Mut.
Fire Ins. Co. v. Casey, 91 Mass. App. Ct. 243, 246–47 (2017)
(noting that “[i]ntent to injure has been inferred as a matter
of law in only a few” situations and recognizing striking
someone in the face as one such situation).
Thus, the Court
infers, as matter of law, that the harm here is intentional.
Using the word “negligently” to modify “used excessive
force” does not render intentional conduct negligent.
Lewis v.
City of St. Petersburg, 260 F.3d 1260, 1263 (11th Cir. 2001)
(“[I]t is not possible to have a cause of action for ‘negligent’
use of excessive force because there is no such thing as the
‘negligent’ commission of an ‘intentional’ tort.”) (internal
citation omitted); see also District of Columbia v. Chinn, 839
[28]
A.2d 701, 707 (D.C. 2003) (stating that for an unwanted touching
“which escalates in an unbroken manner into excessive force, the
cause of action is a battery alone”); City of Miami v. Sanders,
672 So. 2d 46, 47 (Fla. Dist. Ct. App. 1996) (“If excessive
force is used in an arrest, the ordinarily protected use of
force by a police officer is transformed into a battery.”).
Therefore, all the harms derive from Cohne’s assault and
battery; Yianacopolus’ negligence claim does not have an
independent factual basis.
See Doe v. Liberty Mut. Ins. Co.,
423 Mass. 366, 371 (1996) (holding that there is no duty to
defend for a “negligence claim which is premised on the same
acts which are contended to be the basis of an intentional
sexual misconduct claim”); United Nat’l Ins. Co. v. Parish, 48
Mass. App. Ct. 67, 70(1999) (“[W]ithout the underlying assault
and battery, there would have been no personal injuries and,
therefore, no basis for a suit against the insured for
negligence.”); New England Mut. Life Ins. Co., 40 Mass. App. Ct.
722, 727 (1996) (determining that there is no duty to defend
against a negligence claim when there would have been no
injuries without the underlying illegal acts omitted from
coverage by exclusionary clause).
Cohne references Gamache to show how a dispute over intent
to harm can give rise to a duty to defend.
Pl.’s Mem. 7-8.
This reference is inapposite because, in Gamache, the insured
[29]
was intoxicated and thus his “mental capacity to form the
requisite intent [was] a disputed material issue.”
Mass. App. Ct. at 201.
Gamache, 42
Here, the Court may infer Cohne’s intent
to harm as matter of law.
Although the Massachusetts Appeals
Court noted in Gamache that “[i]nferring intent to injure as
matter of law” is only recognized in a few enumerated
situations, id. at 200, it has clarified in a more recent case,
Casey, that striking another in the face belongs on this list,
91 Mass. App. Ct. at 246-48.
As a result, even assuming no provocation, Yianacopolus’
negligence claim derives from Cohne’s assault and battery and
lacks an independent factual basis.
This claim is thus barred
from coverage by item A of the Limitation’s section I.
In sum, the parties’ factual dispute as to provocation is
immaterial because the Policy’s Limitation excludes
Yianacopolus’ claims against Cohne in either instance.
Cohne Is Not a “Named Insured” under Section II
of the Limitation
Cohne further attempts to rely on section II of the
endorsement as an exception.
See Pl.’s Mem. 15-17.
This
section states that Navigators will pay up to $250,000 that “you
become obligated to pay for all damages and claim expenses which
result from claims or ‘suits’ based on allegations of any of the
acts or omissions” in section I.
Navigators Policy 43 (emphasis
[30]
added).
Section I includes assault, battery, and acts or
omissions connected with the protection of persons or property,
types of conduct normally excluded from the Policy’s coverage.
Id.
The CGLC provides that “[t]hroughout this policy the words
‘you’ and ‘your’ refer to the Named Insured shown in the
Declarations, and any other person or organization qualifying as
a Named Insured under this policy.”
Id. at 13.
Cohne seeks to
bring the underlying complaint back under the coverage of the
Policy by arguing there is ambiguity in the contract and that he
ought qualify as a “Named Insured.”
Pl.’s Mem. 10-17; Def.’s
Opp’n 7-11.
In Massachusetts, “contract interpretation is a question of
law for the court unless the contract is ambiguous.”
v. Anapol, 387 F.3d 21, 26 (1st Cir. 2004).
Nicolaci
Under Massachusetts
law, contract “[l]anguage is only ambiguous ‘if it is
susceptible of more than one meaning and reasonably intelligent
persons would differ as to which meaning is the proper one.’”
Barclays Bank PLC v. Poynter, 710 F.3d 16, 21 (1st Cir. 2013)
(quoting Lass v. Bank of America, N.A., 695 F.3d 129, 134 (1st
Cir. 2012)).
“Ambiguity is not created merely because the
litigants disagree about the meaning of a contract.”
Farmers
Ins. Exch. v. RNK, Inc., 632 F.3d 777, 783 (1st Cir. 2011)
(quoting Nicolaci, 387 F.3d at 26).
When contracts are free
from ambiguity, they are “interpreted according to their plain
[31]
terms” and a court construes “all words according to their usual
and ordinary sense.”
Poynter, 710 F.3d at 21 (internal
citations and quotations omitted).
Here, there is no ambiguity in the language of the
Limitation.
The Policy clearly defines “you” as referring to
both “Named Insured shown in the Declarations” and “any other
person or organization qualifying as a Named Insured under the
policy.”
Navigators Policy 13.
At the outset of the Policy,
the Declarations clearly define BBC as a “Named Insured.”
at 3.
Id.
There is no other provision in the policy that provides
for entities other than BBC to qualify as a “Named Insured.”
See generally id. at 1-54.
The fact that the Declarations name
only BBC signifies that “you” refers only to BBC.
Courts in this and other jurisdictions have found ambiguity
as to whether endorsements that add coverage for an “additional
insured” qualify the “additional insured” as a Named Insured.
See, e.g., Marathon Ashland Pipe Line LLC v. Maryland Cas. Co.,
243 F.3d 1232, 1241-42 (10th Cir. 2001); Wyner v. North Am.
Specialty Ins. Co., 78 F.3d 752, 755-57 (1st Cir. 1996).
This
Court has identified no instances in this circuit in which a
court has found an insurance policy ambiguous because it defined
the term “you” to refer to both the Named Insured and any other
person or organization qualifying as a Named Insured without
specifying additional entities that would so qualify.
[32]
Indeed,
courts in a number of cases have found no ambiguity where a
Policy refers to “you” just as here, not defining “Named
Insured,” and not qualifying any entity as a “Named Insured”
besides the one listed in the Declarations.
Millers Mut. Ins. Co. v. Asoyia, Inc.,
See Michigan
No. 3:11-00006-CFB, 2013
WL 11616466, at *11 (S.D. Iowa Nov. 6, 2013) (“‘Named Insured’
is a term of art specific to the policy, wholly separate from
‘insureds’ of classes (e.g., employees) that are covered by
virtue of their relationship to the Named Insured.”), aff’d, 793
F.3d 872 (8th Cir. 2015); Chet Morrison Contractors, LLC v. One
Beacon Am. Ins. Co., 132 F. Supp. 3d 825, 831 (E.D. La. 2015)
(“Although ‘named insured’ is not further defined in the
contract, the term’s meaning is abundantly clear: the Policy’s
declarations page lists Offshore Marine Contractors as the only
named insured on the Policy.”); EMC Ins. Cos. v. Mid-Continent
Cas. Co., 884 F. Supp. 2d 1147, 1156–57 (D. Colo. 2012)
(determining that “Named Insured” “clearly and unambiguously”
refers to the Named Insured shown in the declarations when “no
other provision in the policy, nor any other endorsement or
amendment, speaks to qualifying as a ‘Named Insured” or adds a
‘Named Insured.’”)).
Since there is no ambiguity in the text of
the Navigators Policy, this Court reads “you” to refer only to
BBC.
[33]
This construction is the most consistent with other Policy
provisions.
For example, the CGLC provides in section II, “WHO
IS AN INSURED,” that “your ‘volunteer workers’ . . . or your
‘employees’” could count as an insured for “acts within the
scope of their employment by you.”
Navigators Policy 21-22.
Such provisions only cohere when “you” excludes employees like
Cohne.
Also, section I of the CGLC provides that Navigators
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.”
added).
Id. at 13 (emphasis
The fact that “the insured” is used in this provision,
rather than “you” as in section II of the Limitation, suggests
that “the insured” and “you” are distinct.
Compare id. 21-22
with id. at 13.
Cohne argues that “you” includes him because the word
“Limitation” indicates it “only reduces the policy limits and
does not preclude all coverage for the enumerated claims.”
Pl.’s Mem. 11-13.
This argument lacks support.
All the cases
Cohne cites on this point are from other jurisdictions and
relate to policies with provisions specifying that the
limitations merely set an upper cap for their coverage of
certain claims.
See Gemini Ins. Co. v. Earth Treks, Inc., 260
F. Supp. 3d 467, 483-85 (D. Md. 2017) (“Sexual Abuse and
Molestation” endorsement applied to claims against insured but
[34]
limited coverage to $100,000), aff’d, 728 F. App’x 182 (4th Cir.
2018); First Mercury Ins. Co. v. Sudderth, 72 F. Supp. 3d 1328,
1331 (N.D. Ga. 2014) (“Assault and Battery Endorsement” set
coverage limitation of $100,000 for all insured entities for
claims for bodily injury or property damage arising out of
assault or battery); North E. Ins. Co. v. Masonmar, Inc., Civ.
A. No. 1:13-364 AWI SAB, 2014 WL 1247604, at *1 (E.D. Cal. Mar.
25, 2014) (“Assault and Battery Limitation” to Commercial
General Liability Policy limited coverage to $100,000 for all
insureds for claims resulting from assault and battery);
American Safety Indem. Co. v. Loganzo, 967 N.Y.S.2d 417, 418
(App. Div. 2013) (granting declaratory judgment for insurer that
assault and battery endorsement’s $100,000 limitation applied to
battery claims against insured bar).
Cohne’s argument that excluding him from definition of
“you” would lead to an unreasonable result and render coverage
for him illusory is also unavailing because the Policy still
covers negligence claims against him.
See Surabian Realty, 462
Mass. at 722.
Consequently, Cohne is not a “Named Insured” and section II
of the Limitation does not bring the underlying allegations
under the Policy’s coverage.
Navigators does not owe Cohne a
duty to defend in the Yianacopolus action.
[35]
C.
The Maltacea Action
Maltacea alleges, and Cohne does not contest, that Cohne
“without provocation, right, or reason, struck and beat
[Maltacea] with a metal baton and caused [him] severe physical
injuries.”
Maltacea Compl. ¶¶ 9-10; see generally Pl.’s Mem.
The analysis here is similar to that in the Yianacopolus action.
First, there are insufficient facts for this Court to
determine whether Cohne is an “insured.”
Although the facts on
which the parties agree seem to satisfy the first and second
Wang Labs. prongs, as the incident occurred at the Club during
Cohne’s shift, see Maltacea Compl. ¶¶ 9-10, the parties have
supplied insufficient information for the Court to determine
whether the facts also satisfy the third Wang Labs. prong and
the Miller requirement.
As the Court cannot conclude as matter
of law that Cohne’s actions toward Maltacea were within the
scope of his employment, this Court declines to grant summary
judgment for Cohne regarding Navigators’ duty to defend in this
action.
Second, even if Cohne was within the scope of his
employment for the Maltacea incident, the Maltacea allegations
are excluded by item A of the Limitation’s section I.
Although
Maltacea brought a negligence claim against Cohne, the facts
alleged point to an assault, see Maltacea Compl. ¶¶ 9-10.
Following the same rationale as detailed in the corresponding
[36]
part of the analysis of the Yianacopolus action, there is no
independent factual basis for the negligence claim.
Third, following the Court’s reasoning as to the
Yianacopolus action, Cohne does not qualify as a “Named
Insured,” so Section II of the Limitation does not bring
Maltacea’s allegations back under the Policy’s coverage.
In sum, Navigators does not owe a duty to defend Cohne in
the Maltacea action.
III. CONCLUSION
For the foregoing reasons, this Court DENIES Cohne’s motion
for summary judgment, ECF No. 25, and declares that Navigators
has no duty to defend Cohne in either the Yianacopolus or the
Maltacea action.
As the parties requested, this case will be
administratively closed to await the outcome of those actions.
At that time, any party may reopen this action should further
proceedings appear necessary.
SO ORDERED.
/s/ William G. Young
WILLIAM G. YOUNG
DISTRICT JUDGE
[37]
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