The Burlington Insurance Company v. American Legion Post 230 et al

Filing 31

ORDER granting 23 Motion for Summary Judgment. Signed by District Judge Carlton W. Reeves on 9/18/2018. (AC)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
THE BURLINGTON INSURANCE
COMPANY

PLAINTIFF

CAUSE NO. 3:17-CV-234-CWR-FKB
consolidated with
CAUSE NO. 3:17-CV-683-CWR-FKB

V.

AMERICAN LEGION POST 230;
AARON LEE; EDWARD HARRIS

DEFENDANTS

ORDER GRANTING SUMMARY JUDGMENT
In 2016, Edward Harris filed a premises liability suit in state court against American
Legion Post 230 and its manager, Aaron Lee. Harris alleged that while attending a party at the
American Legion, he was shot by an unknown “assailant” “in the chest/back/lung area.” Harris
claimed that the American Legion and Lee were liable for his injuries because their premises was
“the venue of frequent criminal activity” and they had failed to warn him “of past and
foreseeable criminal conduct.” In January 2017, he secured a default judgment against the
American Legion and Lee for $818,727 in compensatory damages.
In April 2017, the American Legion’s insurer, Burlington Insurance Company,
commenced this action seeking a declaration that it had no duty to defend or to pay the statecourt judgment. The case was docketed as No. 3:17-CV-234-CWR-FKB. Four months later,
Burlington removed to this district Harris’s attempt to garnish Burlington in the state-court
lawsuit. That case number is No. 3:17-CV-683-CWR-FKB. The suits were consolidated.
Now before the Court is Burlington’s motion for summary judgment. It contends that it
has no duty to defend or pay the state-court judgment because Harris’s injuries were not
accidental and its policy contained an exclusion for assault and battery-caused injuries.

Under the familiar legal standard, the Court applies the undisputed facts to the plain
language of the insurance policy. Pilot Travel Centers, LLC v. Mid-Continent Cas. Co., No. 3:15CV-360-CWR-LRA, 2016 WL 1633060, at *1–2 (S.D. Miss. Apr. 21, 2016).
The Court’s review confirms that Burlington’s insurance policy: (1) does not cover
physical injuries “arising in whole or in part out of any ‘assault’ or ‘battery’ committed or
attempted by any person,” and (2) defines “battery” as “physical contact with a person without
his or her consent that entails some injury or offensive touching.” Taken together, these terms are
sufficient to lift any obligation Burlington might have had to defend or pay Harris’s judgment.
Harris presses that the shooter’s motivations were unknown—it could have been an
accidental discharge, rather than a battery—and seeks a jury trial to resolve any doubt. His statecourt complaint, however, alleged injuries arising from criminal battery. He described the
premises as “the venue of frequent criminal activity”; identified the shooter as an “assailant”
rather than a bystander who accidentally discharged a weapon; and alleged that the American
Legion and Lee had failed to warn him “of past and foreseeable criminal conduct.” Burlington
correctly looked to these allegations in determining that it had no duty to defend. See Farmland
Mut. Ins. Co. v. Scruggs, 886 So. 2d 714, 719 (Miss. 2004). There can be no dispute about the
cause of the injury, moreover, because the events set forth in the complaint were converted from
allegations to established facts when Harris obtained his default judgment. See Alexander v. The
Miss. Bar, 725 So. 2d 828, 834 (Miss. 1998) (collecting authorities).
Even a complaint drafted to avoid mentioning criminal activity may not have triggered
the duty to defend. This type of “assault and battery” exclusion has been interpreted to relieve the
insurer of the obligation to defend a claim where the premises owner, through negligence,
allegedly failed to provide adequate security and failed to use precautionary measures to prevent

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a shooting. Coleman v. Acceptance Indem. Ins. Co., No. 5:08-CV-260-DCB-JMR, 2009 WL
1873742, at *4–5 (S.D. Miss. June 29, 2009). In affirming, the Court of Appeals noted that “[t]he
victim’s innocence in relation to [the] altercation is not relevant to the interpretation of the
Exclusion.” 369 F. App’x 595, 597 (5th Cir. 2010).
Burlington’s motion is granted. A separate Final Judgment shall issue in each case.
SO ORDERED, this the 18th day of September, 2018.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

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