The Travelers Indemnity Company et al v. Forrest County et al
Filing
530
AMENDED Memorandum Opinion and Order Replacing Order 525 that was entered Friday, July 8, 2016. The Court grants in part and denies in part Scottsdale Insurance Company's 420 Motion for Summary Judgment; the Court denies the Bivens Parties' 428 Motion for Partial Summary Judgment; and the Court denies as moot Scottsdale's 477 Motion to Strike. Signed by District Judge Keith Starrett on July 11, 2016 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
THE TRAVELERS INDEMNITY
COMPANY, et al.
V.
PLAINTIFFS
CIVIL ACTION NO. 2:14-CV-22-KS-MTP
FORREST COUNTY, et al.
DEFENDANTS
AMENDED MEMORANDUM OPINION AND ORDER
For the reasons below, the Court grants in part and denies in part Scottsdale
Insurance Company’s Motion for Summary Judgment [420], denies the Bivens Parties’
Motion for Partial Summary Judgment [428] as to Scottsdale’s duty to defend, and
denies as moot Scottsdale’s Motion to Strike [477].
I. BACKGROUND
This is a liability insurance coverage case arising from a civil rights lawsuit. The
Court previously discussed the case’s background. See Travelers v. Forrest County, No.
2:14-CV-22-KS-MTP, 2016 U.S. Dist. LEXIS 18288, at *6-*9 (S.D. Miss. Feb. 16, 2016);
Bivens v. Forrest County, No. 2:13-CV-8-KS-MTP, 2015 U.S. Dist. LEXIS 40602, at *3*10 (S.D. Miss. Mar. 30, 2015). On February 16, 2016, the Court granted [370] motions
for judgment on the pleadings filed by Zurich Specialties London Limited (“ZSLL”),
Gemini Insurance Company, and Steadfast Insurance Company. See Travelers, 2016
U.S. Dist. LEXIS 18288 at *31-*32. The Court ruled that the Bivens Plaintiffs1 had not
1
The Court will refer to the underlying plaintiffs – Defendants/CounterPlaintiffs Bivens, Ruffin, Dixon, Smith, and Strong – as the Bivens Plaintiffs. The
Court will refer to the underlying defendants – Defendants/Counter-Plaintiffs
Forrest County, City of Hattiesburg, Howell, Walters, Hopstein, Hart, Martin,
alleged any specific wrongful acts or omissions during the applicable policy periods,
and that ZSLL, Gemini, and Steadfast had no duty to defend or indemnify the Bivens
Defendants against the Bivens Plaintiffs’ claims.
The parties then filed numerous dispositive motions [258, 344, 346, 349, 351,
353, 354, 355, 359, 361, 363, 365], each addressing an insurer’s duty to defend and/or
indemnify the Bivens Defendants against the Bivens Plaintiffs’ claims. On April 20,
2016, the Bivens Plaintiffs filed a Third Amended Complaint. See Third Amended
Complaint, Bivens v. Forrest County, No. 2:13-CV-8-KS-MTP (S.D. Miss. Apr. 20,
2016), ECF No. 307. Anticipating that the parties would need to address the Bivens
Plaintiffs’ new allegations, the Court denied [401] all pending dispositive motions
without prejudice, and set a new motions deadline. Once again, the parties filed
numerous dispositive motions [402, 404, 406, 408, 410, 412, 414, 416, 418, 420, 422,
424, 426, 428, 430, 432, 434, 437].
The Bivens Plaintiffs and Defendants filed a Motion for Reconsideration [424]
of the Court’s order [370] granting the motions for judgment on the pleadings. On June
22, 2016, the Court granted [502] the motion for reconsideration in part and denied it
in part. See Travelers Ind. Co. v. Forrest County, No. 2:14-CV-22-KS-MTP, 2016 U.S.
Dist. LEXIS 81206 (S.D. Miss. June 22, 2016). Specifically, the Court granted the
motion with respect to its previous ruling that ZSLL had no duty to defend or
Brown, Taylor, Erwin, Moulds, James, and Clark – as the Bivens Defendants. The
Court may also refer to the Bivens Plaintiffs and Defendants collectively as the
Bivens Parties.
2
indemnify the Bivens Defendants in the underlying case, but the Court denied the
motion in all other respects. Id. at *17. The Court held that the Bivens Plaintiffs had
alleged specific omissions and/or breaches of duty by the Bivens Defendants during the
ZSLL policy periods, id. at *14-*16, but that they had not alleged any specific wrongful
acts during the Gemini and Steadfast policy periods. Id. at *13. For these same
reasons, the Court granted [504] the Motions for Summary Judgment [410, 414] filed
by Steadfast and Gemini on June 23, 2016. See Travelers Ind. Co. v. Forrest County,
No. 2:14-CV-22-KS-MTP, 2016 U.S. Dist. LEXIS 81826 (S.D. Miss. June 23, 2016).
On June 29, 2016, the Court granted in part and denied in part [515] the Motion
for Summary Judgment [418] filed by The Travelers Indemnity Company, The
Travelers Indemnity Company of America, United States Fidelity & Guaranty
Company, and St. Paul Fire and Marine Insurance Company (collectively, “Travelers”),
and it granted the Bivens Parties’ Motion for Partial Summary Judgment [432] as to
Travelers. Travelers Ind. Co. v. Forrest County, No. 2:14-CV-22-KS-MTP, 2016 U.S.
Dist. LEXIS 84534 (S.D. Miss. June 29, 2016). Specifically, the Court held that
Travelers had no duty to defend or indemnify the Bivens Defendants under a variety
of general liability policies issued to Forrest County and the City of Hattiesburg, but
that it did have a duty to defend the Bivens Defendants under a law enforcement
liability policy issued to the Forrest County Board of Supervisors. Id. at *22.
On June 30, 2016, the Court granted in part and denied in part [516] Sirius
America Insurance Company’s Motion for Summary Judgment [402] and granted in
part and denied in part the Bivens Parties’ Motion for Partial Summary Judgment
3
[422] as to Sirius America. Travelers Ind. Co. v. Forrest County, No. 2:14-CV-22-KSMTP, 2016 U.S. Dist. LEXIS 85399 (S.D. Miss. June 30, 2016). Specifically, the Court
held that Sirius America has a duty to defend the Bivens Defendants under a law
enforcement liability policy effective from November 13, 1984, to November 13, 1985,
but that it has no duty to defend or indemnify under a policy effective from October 7,
1984, to November 13, 1984. Id. at *11. The Court additionally held that Sirius
America has no duty to defend or indemnify any of the claims against the Bivens
Defendants Larry James, Jim Erwin, and Arlon Moulds. Id. at *14.
On July 1, 2016, the Court granted in part and denied in part Great American
E&S Insurance Company’s Motion for Summary Judgment [404] and denied the Bivens
Parties’ Motion for Partial Summary Judgment as to Great American. Travelers
Indem. Co. v. Forrest County, No. 2:14-CV-22-KS-MTP, 2016 U.S. Dist. LEXIS 86108
(S.D. Miss. July 1, 2016). Specifically, the Court found that Great American has no
duty to defend the Bivens Defendants in the underlying case, but the Court could not
determine whether it has a duty to indemnify under several law enforcement liability
policies issued to the Forrest County Sheriff’s Department from November 13, 1996,
to November 13, 2000. Id. at *19-*20. The Court now considers ZSLL’s Motion for
Summary Judgment [416].
On July 7, 2010, the Court granted in part and denied in part Zurich Specialties
London Limited’s Motion for Summary Judgment [416]. Travelers Indem. Co. v. Forrest
County, No. 2:14-CV-22, 2016 U.S. Dist. LEXIS 88095 (S.D. Miss. July 7, 2016).
Specifically, the Court granted the motion insofar as it found that ZSLL had no duty
4
to defend or indemnify the Bivens Defendants against any claims asserted by the
Bivens Plaintiffs arising from wrongful actions or omissions committed by the following
individual Bivens Defendants: Gene Walters, Joe Hopstein, Henry Brown, Terry
Martin, Larry James, Jim Erwin, and Arlon Moulds. Id. at *20-*21. The Court also
granted the motion with respect to ZSLL’s duty to defend and/or indemnify the Bivens
Defendants under a ZSLL policy effective from November 13, 2001, to November 13,
2002. Id. at *10. The Court denied the motion in all other respects. Id. at *22.
The Court now considers Scottsdale Insurance Company’s Motion for Summary
Judgment [420] and the Bivens Parties’ Motion for Partial Summary Judgment [428]
as to Scottsdale.
II. STANDARD OF REVIEW
Rule 56 provides that “[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); see also Sierra Club, Inc.
v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010). “An issue is
material if its resolution could affect the outcome of the action.” Sierra Club, Inc., 627
F.3d at 138. “An issue is ‘genuine’ if the evidence is sufficient for a reasonable jury to
return a verdict for the nonmoving party.” Cuadra v. Houston Indep. Sch. Dist., 626
F.3d 808, 812 (5th Cir. 2010).
The Court is not permitted to make credibility determinations or weigh the
evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). When deciding
whether a genuine fact issue exists, “the court must view the facts and the inference
5
to be drawn therefrom in the light most favorable to the nonmoving party.” Sierra
Club, Inc., 627 F.3d at 138. However, “[c]onclusional allegations and denials,
speculation, improbable inferences, unsubstantiated assertions, and legalistic
argumentation do not adequately substitute for specific facts showing a genuine issue
for trial.” Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).
III. SCOTTSDALE’S MOTION FOR SUMMARY JUDGMENT [420]
Scottsdale issued three liability policies relevant to this case. First, it issued two
Public Officials & Employees Legal Liability Policies: policy No. PO520479, issued to
Forrest County, effective from February 7, 1985, to February 7, 1986;2 and policy No.
PO620361, issued to the Forrest County Board of Supervisors, effective from February
7, 1986, to February 7, 1987.3 Scottsdale also issued a Comprehensive Law
Enforcement Liability Policy to the Forrest County Sheriff’s Department, Policy No.
PL502554, effective from November 13, 1985, to November 13, 1986.4 Scottsdale argues
that none of these policies require it to defend or indemnify the Bivens Defendants
against the Bivens Plaintiffs’ claims.
“Under Mississippi law, an insurer’s duties to defend and indemnify its insured
are distinct and separable duties requiring the use of different standards.” Estate of
2
Exhibit F to Motion for Summary Judgment, Travelers v. Forrest County,
No. 2:14-CV-22-KS-MTP (S.D. Miss. May 9, 2016), ECF No. 420-6.
3
Exhibit G to Motion for Summary Judgment, Travelers v. Forrest County,
No. 2:14-CV-22-KS-MTP (S.D. Miss. May 9, 2016), ECF No. 420-7.
4
Exhibit H to Motion for Summary Judgment, Travelers v. Forrest County,
No. 2:14-CV-22-KS-MTP (S.D. Miss. May 9, 2016), ECF No. 420-8.
6
Bradley v. Royal Surplus Lines Ins. Co., 647 F.3d 524, 529 (5th Cir. 2011). To
determine whether an insurance company has a duty to defend its policyholder against
suit, the Court looks “at the facts alleged in the complaint, together with the policy.”
Auto. Ins. Co. of Hartford v. Lipscomb, 75 So. 3d 557, 559 (Miss. 2011). “[A]n insurer’s
duty to defend is triggered when the allegations of the complaint reasonably bring a
claim within the coverage of its policy.” Carl E. Woodward, LLC v. Acceptance Indem.
Ins. Co., 749 F.3d 395, 398 (5th Cir. 2014) (quoting Baker Donelson Bearman &
Caldwell, P.C. v. Muirhead, 920 So. 2d 440, 451 (Miss. 2006)) (punctuation omitted).
There is no duty to defend if “the alleged conduct falls outside the policy’s coverage,”
but if the insurer “becomes aware that the true facts, if established, present a claim
against the insured which potentially would be covered under the policy, the insurer
must provide a defense until it appears that the facts upon which liability is predicated
fall outside the policy’s coverage.” Lipscomb, 75 So. 3d at 559.
“Unlike the duty to defend, which can be determined at the beginning of the
lawsuit, an insurer’s duty to indemnify generally cannot be ascertained until the
completion of the litigation, when liability is established, if at all.” Bradley, 647 F.3d
at 531. “This is because, unlike the duty to defend, which turns on the pleadings and
the policy, the duty to indemnify turns on the actual facts giving rise to liability in the
underlying suit, and whether any damages caused by the insured and later proven at
trial are covered by the policy.” Id. Typically, though, “if there is no duty to defend,
there can be no duty to indemnify.” Evanston Ins. Co. v. Neshoba Cnty. Fair Ass’n, 442
F. Supp. 344, 346 n. 1 (S.D. Miss. 2006).
7
The Court’s ultimate goal in applying an insurance policy is to “render a fair
reading and interpretation of the policy by examining its express language and
applying the ordinary and popular meaning to any undefined terms.” Corban v. United
Servs. Auto. Ass’n, 20 So. 3d 601, 609 (Miss. 2009). “In Mississippi, insurance policies
are contracts, and as such, they are to be enforced according to their provisions.” Id.
First, where an insurance policy is plain and unambiguous, a court must
construe that instrument, like other contracts, exactly as written. Second,
it reads the policy as a whole, thereby giving effect to all provisions.
Third, it must read an insurance policy more strongly against the party
drafting the policy and most favorably to the policy holder. Fourth, where
it deems the terms of an insurance policy ambiguous or doubtful, it must
interpret them most favorably to the insured and against the insurer.
Fifth, when an insurance policy is subject to two equally reasonable
interpretations, a court must adopt the one giving the greater indemnity
to the insured. Sixth, where it discerns no practical difficulty in making
the language of an insurance policy free from doubt, it must read any
doubtful provision against the insurer. Seventh, it must interpret terms
of insurance policies, particularly exclusion clauses, favorably to the
insured wherever reasonably possible. Finally, although ambiguities of
an insurance policy are construed against the insurer, a court must
refrain from altering or changing a policy where terms are unambiguous,
despite resulting hardship on the insured.
Nationwide Mut. Ins. Co. v. Lake Caroline, Inc., 515 F.3d 414, 419 (5th Cir. 2008); see
also Corban, 20 So. 3d at 609; Guidant Mut. Ins. Co. v. Indem. Ins. Co. of N. Am., 13
So. 3d 1270, 1281 (Miss. 2009); United States Fid. & Guar. Co. v. Martin, 998 So. 2d
956, 963 (Miss. 2008).
A.
Public Officials & Employees Legal Liability Policies [420-6, 420-7]
The Public Officials & Employees policies are identical in all relevant parts.
They provide that the “Company will pay on behalf of the INSURED all sums which
the INSURED shall become legally obligated to pay as damages as a result of claims
8
first made during the period of this policy, against the INSURED by reason of any
WRONGFUL ACT, rendered in discharge of PUBLIC ENTITY duties.” Exhibit F [4206] at 6; Exhibit G [420-7] at 6. Therefore, the Public Officials & Employee policies are
“claims made” policies, providing coverage “only for claims made during the policy
period . . . regardless of when the covered act or omission occurred.” Matador Petroleum
Corp. v. St. Paul Surplus Lines Ins. Co., 174 F.3d 653, 658 n. 2 (5th Cir. 1999).
It is undisputed that the Bivens Plaintiffs first asserted their claims against the
Bivens Defendants almost three decades after the Public Officials & Employees policy
periods expired. See Complaint, Bivens v. Forrest County, No. 2:13-CV-8-KS-MTP (S.D.
Miss. Jan. 16, 2013). Therefore, the Public Officials & Employees Liability Policies
issued by Scottsdale – Policy No. PO520479, effective from February 7, 1985, to
February 7, 1986; and Policy No. PO620361, effective from February 7, 1986, to
February 7, 1987 – provide no coverage for the Bivens Plaintiffs’ claims against Bivens
Defendants. Scottsdale has no duty to defend or indemnify the Bivens Defendants
under either policy.
B.
Comprehensive Law Enforcement Liability Policy [420-8]
The Law Enforcement Liability (“LEL”) policy provides, in relevant part:
The Company will pay on behalf of the INSURED all sums which the
INSURED shall become legally obligated to pay as damages because of
WRONGFUL ACT(S) which result in:
A)
B)
C)
PERSONAL INJURY
BODILY INJURY
PROPERTY DAMAGE
caused by an OCCURRENCE and arising out of the performance of the
9
INSURED’s duties to provide law enforcement and/or other
departmentally approved activities as declared in the Application, . . . and
all operations necessary and incidental thereto.
Exhibit H [420-8] at 5. Scottsdale also has “the right and duty to defend any suit
against the INSURED seeking damages on account of such PERSONAL INJURY,
BODILY INJURY, or PROPERTY DAMAGE even if any of the allegations of the suit
are groundless, false, or fraudulent . . . .” Id.
The policy defines a “wrongful act” as “any actual or alleged act, error, omission,
neglect or breach of duty by the INSURED.” Id. at 6. The policy defines “bodily injury”
as “bodily injury, sickness or disease . . . which occurs during the policy period . . . .” Id.
Finally, the definition of “personal injury” includes “assault and battery,”
“discrimination,” “false arrest, detention or imprisonment,” “humiliation or mental
distress,” and the “violation of civil rights” protected under state and federal law. Id.
However, the “personal injury” must, like a “bodily injury,” be “committed during the
policy period.” Id.
In summary, Scottsdale generally agreed to defend and indemnify the Forrest
County Sheriff’s Department against claims of bodily injury, false arrest or
imprisonment, humiliation or mental distress, and the violation of civil rights protected
under state and federal law, as long as the injury occurs during the policy period and
was caused by a wrongful act by the insured. Therefore, the policy is an “occurrence”
policy,5 and the trigger for coverage is the injury sustained by the claimant.
5
See Matador Petroleum, 174 F.3d at 658 n. 2.
10
Here, the Bivens Plaintiffs alleged injuries that occurred during the LEL policy
period caused by wrongful acts committed by the Bivens Defendants during their
performance of law enforcement activities. Specifically, they alleged that Bivens,
Dixon, and Ruffin were falsely imprisoned from November 13, 1985, to November 13,
1986. The Bivens Plaintiffs also alleged that these injuries were caused by wrongful
acts committed by the Bivens Defendants during the performance of law enforcement
activities – specifically, the acts surrounding the investigation, prosecution, and parole
of Bivens, Dixon, and Ruffin in 1979 and 1980, as described in Bivens, 2015 U.S. Dist.
LEXIS 40602 at *3-*10. Therefore, the Court finds that the facts alleged by the Bivens
Plaintiffs state a claim that falls within the general coverage provision of the
Scottsdale LEL Policy No. PL502554, effective from November 13, 1985, to November
13, 1986.
Scottsdale contends that the Bivens Plaintiffs alleged no “personal injury”
during the policy period because the violations of their civil rights occurred in 19791980. However, the policy’s definition of “personal injury” includes “false arrest,
detention or imprisonment,” and it is beyond dispute that Bivens, Dixon, and Ruffin
were imprisoned from 1985-1986. To the extent Scottsdale presents the same
arguments as other insurers regarding multiple triggers, coverage triggers at the time
of indictment, and continuing triggers, the Court rejects those arguments for the same
reasons provided in previous opinions. See, e.g. Travelers, 2016 U.S. Dist. LEXIS 85399
at *43-*44; Travelers, 2016 U.S. Dist. LEXIS 84534 at *17-*20.
1.
Untimely Notice
11
The Scottsdale LEL policy contains the following provision:
4.
INSURED’S DUTIES IN THE EVENT OF OCCURRENCE,
CLAIM OR SUIT.
(a)
In the event of an OCCURRENCE, written notice
containing particulars sufficient to identify the INSURED
and also reasonably obtainable information with respect to
the time, place and circumstances thereof, and the names
and addresses of the injured and of available witnesses,
shall be given by or for the INSURED to the Company or
any of its authorized agents as soon as practicable.
(b)
If claim is made or suit is brought against the INSURED,
the INSURED shall immediately forward to the Company
every demand, notice, summons or other process received by
him or his representative.
***
5.
ACTION AGAINST COMPANY. No action shall lie against the
Company unless, as a condition precedent thereto, there shall have
been full compliance with all of the terms of this policy . . . .
Exhibit H [420-8] at 7. Scottsdale argues that the Bivens Defendants failed to provide
timely notice as required by this provision, and, therefore, they are barred from
recovering under the policy.
“The purpose of notice provisions in insurance policies is to give the insurance
company the chance to settle or litigate claims for which it ultimately might be liable.”
Ingalls Shipbuilding v. Fed. Ins. Co., 410 F.3d 214, 227 (5th Cir. 2005). “Under
Mississippi law, delay in giving notice is excusable under certain circumstances, but
such delay must have occurred without fault or negligence on the part of the insured.”
Bolivar County Bd. of Supervisors v. Forum Ins. Co., 779 F.2d 1081, 1085 (5th Cir.
1986). “[W]here an insurance policy requires notice as a condition precedent to
12
coverage, coverage may still be allowed unless the insurer suffered prejudice due to
delay; that prejudice is a question of fact.” Jackson v. State Farm Mut. Auto. Ins. Co.,
880 So. 2d 336, 341 (Miss. 2004).6 Likewise, “the question whether an insured in an
action on a policy indemnifying him from liability . . . gave timely notice . . . is a
question of fact to be determined by the jury . . . .” Lawler v. Government Employees
Ins. Co., 569 So. 2d 1151, 1153 (Miss. 1990).
According to Forrest County’s interrogatory responses [420-12], the Bivens
Defendants first became aware of the Bivens Plaintiffs’ claims on January 22, 2013.
Scottsdale contends that the Bivens Defendants did not provide notice of the suit until
May 6, 2015. During the intervening twenty-seven months, the following events
occurred in the underlying litigation:
•
The Defendants answered the Plaintiffs’ First and Second
Amended Complaints;7
•
The parties deposed the last living wrongfully incarcerated
6
Older cases provide that an insurer is not required to prove prejudice if the
policy requires notice as a condition precedent to coverage. See, e.g. Boliver County,
779 F.2d at 1085; Reliance Ins. Co. v. County Line Place, Inc., 692 F. Supp. 694, 697
(S.D. Miss. 1988); Hartford Acc. & Indem. Co. v. Hattiesburg Hardware Stores, 49
So. 2d 813, 819 (Miss. 1951); Employers’ Liability Assurance Corp. v. Jones County
Lumber Co., 72 So. 152, 154 (Miss. 1916). But a more recent decision by the
Mississippi Supreme Court requires insurers to prove prejudice even when
provision of notice is a condition precedent to coverage. Jackson, 880 So. 2d at 341;
see also First Pentecostal Church of Jackson v. Bhd. Mut. Ins. Co., No. 3:09-CV-34TSL-FKB, 2010 U.S. Dist. LEXIS 71386, at *16 n. 4 (S.D. Miss. July 15, 2010).
7
Answer, Bivens v. Forrest County, No. 2:13-CV-8-KS-MTP (S.D. Miss. Mar.
18, 2013), ECF No. 29; Answer, Bivens v. Forrest County, No. 2:13-CV-8-KS-MTP
(S.D. Miss. Sept. 26, 2013), ECF No. 64; First Amended Answer, Bivens v. Forrest
County, No. 2:13-CV-8-KS-MTP (S.D. Miss. Dec. 23, 2013), ECF No. 76.
13
Plaintiff, Philip Bivens, to preserve his testimony;8
•
The parties engaged in limited discovery as to any investigatory or
prosecutorial files related to the Plaintiffs’ prosecutions and
convictions;9
•
Numerous individual Defendants filed motions to dismiss, which
were fully briefed by all parties;10
•
Defendant Gene Walters, the Sheriff of Forrest County at the time
of the Plaintiffs’ arrests and convictions, died;11
•
Wayne R. Taylor, one of the individual Defendants, died on June
12, 2014;12
•
The last living wrongfully incarcerated Plaintiff, Philip Bivens,
died;13
8
Notice of Receipt of Original Deposition, Bivens v. Forrest County, No. 2:13CV-8-KS-MTP (S.D. Miss. June 11, 2013), ECF No. 49.
9
Interim Case Management Order, Bivens v. Forrest County, No. 2:13-CV-8KS-MTP (S.D. Miss. July 23, 2013), ECF No. 54.
10
Motion to Dismiss, Bivens v. Forrest County, No. 2:13-CV-8-KS-MTP (S.D.
Miss. May 22, 2014), ECF No. 94; Motion to Dismiss, Bivens v. Forrest County, No.
2:13-CV-8-KS-MTP (S.D. Miss. May 22, 2014), ECF No. 97; Motion to Dismiss,
Bivens v. Forrest County, No. 2:13-CV-8-KS-MTP (S.D. Miss. May 22, 2014), ECF
No. 99; Motion to Dismiss, Bivens v. Forrest County, No. 2:13-CV-8-KS-MTP (S.D.
Miss. May 23, 2014), ECF No. 102; Motion to Dismiss, Bivens v. Forrest County, No.
2:13-CV-8-KS-MTP (S.D. Miss. May 26, 2014), ECF No. 105; Motion to Dismiss,
Bivens v. Forrest County, No. 2:13-CV-8-KS-MTP (S.D. Miss. May 26, 2014), ECF
No. 107.
11
Suggestion of Death, Bivens v. Forrest County, No. 2:13-CV-8-KS-MTP (S.D.
Miss. May 28, 2014), ECF No. 118.
12
Suggestion of Death, Bivens v. Forrest County, No. 2:13-CV-8-KS-MTP (S.D.
Miss. July 1, 2014), ECF No. 142.
13
Suggestion of Death, Bivens v. Forrest County, No. 2:13-CV-8-KS-MTP (S.D.
Miss. Oct. 3, 2014), ECF No. 163.
14
•
Henry “Red” Brown, one of the individual Defendants, died on
December 23, 2014;14
•
The Court addressed the individual Defendants’ motions to
dismiss;15
•
The Court lifted the stay on discovery imposed when the individual
Defendants filed qualified immunity motions;16 and
•
The Court held a Case Management Conference and entered a
Case Management Order, permitting discovery to begin in
earnest.17
Scottsdale argues that the twenty-seven-month delay in notice, during which the
events listed above occurred, constitutes material prejudice.
The Court believes there is a genuine dispute of material fact as to whether
Scottsdale was prejudiced by the delayed notice. According to its denial letter of
October 21, 2015 [453-1] the delay in notice was only one of numerous reasons
Scottsdale denied coverage under the LEL policy. If Scottsdale would have declined to
participate in the Bivens Defendants’ defense regardless of the delay in notice, then it
remains to be seen how the delay prejudiced it. The Court further notes that little to
no discovery occurred in the case before Scottsdale claims to have received notice,
14
Suggestion of Death, Bivens v. Forrest County, No. 2:13-CV-8-KS-MTP (S.D.
Miss. Dec. 30, 2014), ECF No. 179.
15
Memorandum Opinion and Order, Bivens v. Forrest County, No. 2:13-CV-8KS-MTP (S.D. Miss. Mar. 30, 2015), ECF No. 189.
16
Order, Bivens v. Forrest County, No. 2:13-CV-8-KS-MTP (S.D. Miss. Apr. 2,
2015), ECF No. 191.
17
Case Management Order, Bivens v. Forrest County, No. 2:13-CV-8-KS-MTP
(S.D. Miss. Apr. 22, 2015), ECF No. 194.
15
because discovery, disclosures, and the Case Management Conference were all stayed18
pending resolution of the individual Defendants’ qualified immunity motions.
Regardless, discovery is still ongoing, leaving time for Scottsdale to participate. But the
Court notes once again that Scottsdale has not represented what, if anything, it would
have done earlier in the case. For these reasons, the Court finds that there is a genuine
dispute of material fact regarding the application of the policy’s notice provision.
2.
Individual Defendants Not Insured
Scottsdale also argues that the LEL policy provides no coverage for the
individual Defendants who were either never employed by Forrest County or were not
employed by Forrest County during the policy period. The LEL policy defines an
“insured” as “the NAMED INSURED and all full or part-time and all auxiliary or
volunteer law enforcement officers of the NAMED INSURED.” Exhibit H [420-8] at 6.
The “named insured” is the Forrest County Sheriff’s Department. Id. at 3.
Accordingly, the policy does not require that the individual Bivens Defendants
have been employed by Forrest County during the policy period. Rather, it provides
coverage for “all full or part-time and all auxiliary or volunteer law enforcement
officers,” id. at 6, against claims of personal injury during the policy period caused by
wrongful acts during law enforcement activities. The pertinent question is whether
they were employed by Forrest County at the time they committed the alleged actions
and omissions which caused the personal injury during the policy period. It appears
18
Order Staying Discovery, Disclosures and Case Management Conference,
Bivens v. Forrest County, No. 2:13-CV-8-KS-MTP (May 30, 2014), ECF No. 124.
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to be undisputed that neither Arlon Moulds nor Ricky Rawls were employed by the
Forrest County Sheriff’s Department in any capacity. Therefore, the Scottsdale policy
provides no coverage for claims asserted against them.
IV. BIVENS PARTIES’ MOTION FOR PARTIAL SUMMARY JUDGMENT [428]
The Bivens Parties filed a Motion for Partial Summary Judgment [428] as to
Scottsdale’s duty to defend the Bivens Defendants against the Bivens Plaintiff’s claims,
arguing that Scottsdale breached its duty to defend in the underlying suit. For the
reasons provided above, the Court finds that there exists a genuine dispute of material
fact as to the application of the Scottsdale law enforcement liability policy’s notice
provision. Accordingly, the Court denies the Bivens Parties’ motion.
V. MOTION TO STRIKE [477]
Scottsdale filed a Motion to Strike [477] the declaration of David Miller [393-2],
the Bivens Defendants’ former counsel, submitted by the Bivens Parties in opposition
to its motion for summary judgment. The Court addressed Scottsdale’s motion, and it
did not consider the disputed declaration. Accordingly, the motion to strike is denied
as moot.
VI. CONCLUSION
For these reasons, the Court grants in part and denies in part the Motion for
Summary Judgment [420] filed by Scottsdale Insurance Company. Specifically, the
Court grants the motion insofar as it finds that Scottsdale has no duty to defend or
indemnify the Bivens Defendants against any claims asserted by the Bivens Plaintiffs
under its Public Officials & Employees Liability Policies issued by Scottsdale – Policy
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No. PO520479, effective from February 7, 1985, to February 7, 1986; and Policy No.
PO620361, effective from February 7, 1986, to February 7, 1987. The Court also grants
the motion insofar as it finds that Scottsdale has no duty to defend or indemnify Arlon
Moulds and Ricky Rawls under any of the policies addressed in its motion. The Court
denies the motion in all other respects.
The Court denies the Bivens Parties’ Motion for Partial Summary Judgment
[428], and it denies as moot Scottsdale’s Motion to Strike [477].
SO ORDERED AND ADJUDGED this 11th day of July, 2016.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
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