Great Lakes Insurance SE v. One Stop Mart, LLC et al

Filing 63

ORDER granting 51 Motion for Summary Judgment; granting 21 Motion for Summary Judgment Signed by District Judge David C. Bramlette, III on 6/19/2019 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
GREAT LAKES INSURANCE SE

PLAINTIFF

VS.

CIVIL ACTION NO.5:18-cv-60(DCB)(MTP)

ONE STOP MART, LLC, MOHAMED ALABDY,
MOE’S MINI MART LLC, KENNETH LOWE,
and ORIC LEWIS SR. and KATRELL LEWIS on
behalf of their minor child Oric Lewis Jr.
and JOHN DOES 1-10

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause is before the Court on the plaintiff Great Lakes
Insurance SE (“Great Lakes”)’s Motion for Summary Judgment (docket
entry 21) and Amended Motion for Summary Judgment (docket entry
51).
Having carefully considered the plaintiff’s Complaint (docket
entry 1) and the defendants’ Answer (docket entry 10) as well as
the

aforesaid

motions

for

summary

judgment,

the

defendants’

response (docket entry 57) to Great Lakes’ Amended Motion for
Summary Judgment, and

Great Lakes’ “Response” (Reply) (docket

entry 61) in Support of its Amended Motion for Summary Judgment,
and the parties’ memoranda of law, the Court finds as follows:
Great Lakes issued a commercial lines policy to One Stop Mart
LLC, a food mart located at 550 Medgar Evers Boulevard in Fayette,
Mississippi.

The policy went into effect on December 14, 2016 and

expired a year later.

This is the only policy under which

defendants One Stop Mart, LLC, Mohamed Alabdy, Moe’s Mini Mart LLC

(collectively “the Moe Defendants”) contend they have coverage.
See EXHIBIT 2, Responses to Requests for Production (Producing
EXHIBIT 1).
The Lowe and Lewis Lawsuits
Great Lakes filed its declaratory judgment action based on two
lawsuits, both of which were filed against Moe’s Food Mart and Moe
Alabdy on May 5, 2017, in the Circuit Court of Jefferson County,
Mississippi: (1) Lewis v. Moe’s Food Mart, Moe Alabdy & John Does
and (2) Lowe v. Moe’s Food Mart, Moe Alabdy & John Doe.
EXHIBITS 3 and 4, Amended Complaints.

See

Although the named insured

One Stop Mart is not a defendant in either lawsuit, One Stop Mart
submitted these lawsuits to Great Lakes, requesting a defense to
and indemnification from them.

Great Lakes denied One Stop Mart’s

request for two reasons: First, no insured under the policy is a
defendant in either lawsuit (see EXHIBIT 5, September 11, 2017
Letter); and second, even if Moe’s Food Mart and Moe Alabdy were
insureds, all the allegations fall within the express language of
the policy’s Assault or Battery Exclusion.

Id.

Great Lakes told

One Stop that the policy provided no coverage for the Lewis and
Lowe lawsuits.

Id.

After Lewis and Lowe obtained default judgments (which have
since been set aside), they attempted to collect from Great Lakes,
but Great Lakes instituted the present Declaratory Judgment Action
and moved for summary judgment (see docket entries 21 and 41) based

2

on the same positions Great Lakes took in its declination letter.
Even if there is some question as to whether Moe’s Food Mart and
Moe Alabdy are insured under the Great Lakes’ policy issued to One
Stop Mart, the allegations of the Lewis and Lowe lawsuits fall
precisely within the Assault or Battery Exclusion.

Thus, there is

no coverage owed by Great Lakes to any of the Moe Defendants or
Moe’s Food Mart.

The Carter Lawsuit
Shortly after Great Lakes moved for summary judgment, the Moe
Defendants sought permission to file an Amended Answer (docket
entry 23).

The most significant aspect of the Amended Answer is

the Moe Defendants’ attempt to include a third underlying lawsuit
as part of their new counterclaim for a failure to defend: Darrius
Carter v. Moe’s Food Mart & Moe Alabdy & Albert Johnson (docket
entry 23-1 at p.5). In its Rebuttal in Support of Summary Judgment
(docket entry 41), Great Lakes included the Carter lawsuit in its
arguments. Great Lakes also served discovery on the Moe Defendants
pertaining to the Carter lawsuit.
The Court granted the Moe Defendants’ Motion to Amend Answer
(see docket entry 44). However, the Moe Defendants did not file an
Amended Answer.

The Court then ordered the Moe Defendants to file

their Amended Answer by January 23, 2019 (see docket entry 47). No
Amended Answer has been filed.

3

On February 20, 2019, Great Lakes received the Moe Defendants’
discovery responses.

Therein, the Moe Defendants admit that the

only policy under which they contend there is insurance coverage is
the December 14, 2016, to December 14, 2017 Great Lakes Policy.
See Exhibit 2.

The Moe Defendants also admit that the Carter

lawsuit alleges that the shooting that caused the injuries occurred
on September 13, 2016.

See Exhibit 6, Responses to Requests for

Admissions; see also Exhibit 7, Carter Complaint, ¶ 6. Whether the
Amended Answer is ever filed or not, based on the Carter Complaint
there is no duty on the part of Great Lakes to defend any of the
Moe Defendants or Moe’s Food Mart from the Carter lawsuit.

Allegations of the Underlying Complaints
Liability policies have two levels of analysis: the duty to
defend and the duty to indemnify.

The duty to defend is “broader

than the insurer’s duty to indemnify” and is based solely on the
factual allegations made in the complaint.

Titan Indem. Co. v.

Pope, 876 So.2d 1096, 1101 (Miss. Ct. App. 2004).
whether

the

duty

to

defend

exists,

the

Court

To determine
compares

allegations of the complaint to the insurance policy.

the

Auto. Ins.

Co. of Hartford v. Lipscomb, 75 So.3d 557, 559 (Miss. 2011).
In its Amended Motion for Summary Judgment (docket entry 52),
Great Lakes addresses the Carter lawsuit as if the Amended Answer
had been filed.

4

The Lewis and Lowe cases, filed against Moe’s Food Mart and
Moe Alabdy, arise out of the same February 11, 2017 shooting that
allegedly took place on “the premises of the Moe’s Food Mart
Store.”

See EXHIBITS 3 and 4, ¶¶ 2-3, 6.

According to Lewis and

Lowe, after they arrived at the store, and while they were “on the
premises,” they were shot and injured.

Id., ¶ 7.1

Lewis and Lowe

assert that because “Moe’s Food Mart Store [and] Moe Alabdy owed to
Darrius Carter a duty of care and a duty to make their premises
reasonably safe,” their conduct proximately caused “the vicious
shooting ....”

Id., ¶ 16.

Based on these allegations, Lewis and

Lowe demand compensatory and punitive damages from Moe’s Food Mart
and Alabdy.

Id., ¶¶ 21-22.

There are no allegations against One Stop Mart, which is never
even mentioned in the lawsuits.

The Moe Defendants admit that

although they contend One Stop Mart is a proper party, they have
taken no action to add One Stop Mart as a party.

See EXHIBIT 8.

Based on the allegations of the complaints, and the terms of
the policy, Great Lakes argues that no defense is owed to any of
the Moe Defendants or to Moe’s Food Mart.

1

Because the Assault or

See Lowe Complaint, docket entry 1-2 at page 2: “After
arriving at the store, Kenneth Lowe, while on the premises was
subsequently approached by a black male, who suddenly and without
being provoked shot the Plaintiff;” see also Lewis Complaint,
docket entry 1-2 at page 2: “After arriving at the store, Orie
Lewis Jr., while on the premises was subsequently approached by a
black male, who suddenly and without being provoked shot the
Plaintiff.
5

Battery Exclusion encompasses the allegations of the Lowe and Lewis
complaints,

there

is

no

coverage

owed.2

As

for

the

Carter

complaint, there was no policy in place at the time of the
shooting, so Great Lakes could never owe coverage for Carter.

But

even if the Carter shooting took place during the Great Lakes
policy’s effective period, the Assault or Battery Exclusion would
bar coverage for that lawsuit.
Insurance

policies

are

contracts

and

must

be

enforced

according to their provisions. Noxubee County Sch. Dist. v. United
Nat’l

Ins.

Co.,

883

So.2d

1159,

1166

(Miss.

2004).

The

interpretation of an insurance contract presents a question of
law.”

Coleman

v.

Acceptance

Indem.

Ins.

Co.,

No.

5:08-cv-

260(DCB)(JMR), 2009 U.S. Dist. LEXIS 54742, at *9 (S.D. Miss. June
26, 2009)(citiation omitted), aff’d, 369 F.App’x 595 (5th Cir.
2010).
An insurance policy’s plain and unambiguous terms are applied
as written.

Paul Revere Life Ins. Co. v. Prince, 375 So.2d 417,

418 (Miss. 1979).

Only when the underlying litigation includes

2

In its original Motion for Summary Judgement, Great Lakes
argued that no insured was a defendant. In its Memorandum Brief
in Support of its Amended Motion for Summary Judgment, Great
Lakes withdraws, but does not concede, this argument. In signed
Interrogatory answers, One Stop Mart LLC’s manager Wail Alabdy
attested that “[t]he store was formerly named Moe’s Food Mart,
until sold in 2011 and incorporated as One Stop Mart, LLC. All
references involving the store were misnomers by the plaintiffs
in the state court action, and should have been listed as ‘One
Stop Mart, LLC.’” See EXHIBIT 8.
6

allegations that bring the claims within a policy’s terms is there
any requirement to defend an insured.

Sennett v. United States

Fid. & Guar. Co., 757 So.2d 206, 212 (Miss. 2000).

See also Baker,

Donelson, Bearman & Caldwell, P.C. v. Muirhead, 920 So.2d 440, 451
(Miss. 2006)(noting that “no duty to defend arises when the claims
fall outside the policy’s coverage”).
In this case, there is no duty to defend any of the Moe
Defendants because the claims asserted by Lewis, Lowe and Carter
fall outside the policy’s coverage.

Coverage is Excluded Under
the Assault or Battery Exclusion
The Great Lakes policy provides liability insurance for bodily
injuries caused by an occurrence “to which this insurance applies.”
See EXHIBIT 1 at GREATLAKES.051.

There is “no duty to defend the

insured against any ‘suit’ seeking damages for ‘bodily injury’ or
‘property damage’ to which this insurance does not apply.”
One

Stop

Exclusion.

Mart’s

policy

includes

Id. At GREATLAKES.078-079.

an

Assault

or

Id.
Battery

It excludes insurance

coverage for bodily injuries that arise out of assaults, batteries,
or physical altercations.

Id.

This insurance does not apply to “bodily injury,”
“property damage,” or “personal and advertising injury”
arising out of an “assault,” “battery,” or “physical
altercation”:
a. Whether or not caused by, at the instigation of, or
with the direct or indirect involvement of an insured, an
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insured’s employees, patrons, or other persons in, on,
near, or away from an insured’s premises; or
b. Whether or not caused by or arising out of any
insured’s failure to properly supervise or keep an
insured’s premises in a safe condition; or
c. Whether or not caused by or arising out of any
insured’s act or omission in connection with the
prevention, suppression, or failure to warn of the
‘assault,’ ‘battery,’ or ‘physical altercation,’ or
providing or not providing or summoning or not summoning
medical or other assistance in connection with the
‘assault,’ ‘battery,’ or ‘physical altercation,’ or
providing or not providing or summoning or not summoning
medical or other assistance in connection with the
‘assault,’
‘battery,’
or
‘physical
altercation,’
including but not limited to, negligent hiring, training,
or supervision; or
d. Whether or not caused by or not caused by or arising
out of negligent, reckless, or wanton conduct by an
insured, an insured’s employees, patrons, or other
persons.
Id. at GREATLAKES.078. The Assault or Battery Exclusion adds three
definitions to the policy, including:
‘Battery’ means the intentional or reckless physical
contact with or any use of force against a person without
his or her consent that entails some injury or offensive
touching whether or not the actual injury inflicted is
intended or expected.
Id. at GREATLAKES.079. When a lawsuit alleges bodily injuries that
arise out of an assault, battery, or physical altercation, the
Great Lakes policy “does not apply” and there is “no duty to defend
the insured” nor any duty to indemnify.

Id. at GREATLAKES.051.

According to the underlying complaints, Carter,3 Lewis and
3

There is no insurance coverage for the Carter lawsuit
because there was no policy in place. But even if the Great
8

Lowe were shot and suffered bodily injuries.

They allege the

following:
a. On September 13, 2016, Carter entered Moe’s Food Mart.
See EXHIBIT 7, ¶ 6.
b. On February 11, 2017, Lewis and Lowe entered Moe’s
Food Mart. See EXHIBITS 3 and 4, ¶ 6.
c. While at Moe’s Food Mart, Carter, Lewis and Lowe were
approached and, without provocation, suddenly shot. See
EXHIBITS 3, 4 and 7, ¶ 7.
d. As a result of the shootings, Carter, Lewis and Lowe
were “severely injured.” Id., ¶ 17.
These alleged shootings fall within the policy’s definition of
battery because they were “intentional or reckless physical contact
with any use of force against a person without his or her consent
that entails some injury or offensive touching whether or not the
actual injury inflicted is intended or expected.” See EXHIBIT 1 at
GREATLAKES.079.
The genesis of all three lawsuits is the shooting of Carter,
Lewis and Lowe.

None of the three would have suffered bodily

injuries and none would have sued Moe’s Food Mart and Alabdy if
they had not been shot.

Based on the clear language of the policy,

all three lawsuits arise out of a battery and are therefore
excluded by the Assault or Battery Exclusion.
Although the Mississippi Supreme Court has not yet interpreted
the application of a similar assault or battery exclusion, this

Lakes policy were in place on September 13, 2016, the Assault or
Battery Exclusion applies to the allegations.
9

Court and other federal courts applying Mississippi law have
repeatedly interpreted similar assault or battery exclusions,
finding them to be unambiguous and concluding there is no duty to
defend.

Coleman v. Acceptance Indem. Ins. Co., No. 5:08-cv-

260(DCB)(JMR), 2009 U.S. Dist. LEXIS 54742, at *12-13 (S.D. Miss.
June 26, 2009).

See also Burlington Ins. Co. v. Am. Legion Post

230, No. 3:17-cv-234, 2018 U.S. Dist. LEXIS 158911, at *3-4 (S.D.
Miss. Sep. 18, 2018); Archie v. Acceptance Indem. Ins. Co., 507
F.App’x 451 (5th Cir. 2013); Doe v. Sharma, No. 3:07-cv-234, 2018
U.S. Dist. LEXIS 28118 (S.D. Miss. Mar. 24. 2010); Cullop v. Sphere
Drake

Ins.

Co.,

129

F.Supp.

2d

981

(S.D.

Miss.

2001);

and

Northfield Ins. Co. v. Adams, No. 98-60084, 1998 U.S. App. LEXIS
39646 (5th Cir. Sept. 8, 1998).
In 2009, this Court analyzed a similar set of facts, a similar
lawsuit, and a similar assault or battery exclusion and found there
was no coverage.

Coleman, 2009 U.S. Dist. LEXIS 54742.

The

Colemans owned property in Yazoo City where a nightclub (the
Chocolate City Lounge) was located.

Id. at *2.

While at the

Lounge, Alicia Turner was shot and killed during an altercation in
which she was not involved.

Id.

Turner’s family sued the

Colemans, who sought a defense and indemnification from Acceptance.
Id.

Acceptance denied the claim based on the policy’s assault and

battery exclusion, which is similar to the Assault or Battery
Exclusion in the Great Lakes policy.

10

Id. at *3.

The Colemans argued that the underlying complaint against them
did not allege an assault or battery but alleged negligence,
including a “failure to provide a reasonably safe environment for
its patrons, failure to provide reasonable security, failure to
warn of the danger of crimes on the premises ....”

Id. at *7-9.

Carter, Lewis and Lowe make these same claims against Moe’s Food
Mart and Alabdy, alleging that they were owed:
(1) a “duty to provide reasonable security measures for
[their] protection” and
(2) a “duty to warn [them] ... of foreseeable harm.”
See EXHIBITS 3, 4 and 7, ¶¶ 11-12.
After finding that the assault and battery exclusion was
unambiguous, id. at *13, the Court held that the negligence-based
claims “would not have been brought but for the altercation” and
concluded that coverage was excluded.

Id. at *16.

As the Court

explained, the question is whether “the action would not have been
brought but for the altercation that occurred [resulting in the
victim being shot].”
“the

injured

If the answer is it would not have been, then

parties’

claims

against

the

[insureds]

are

unambiguously excluded from coverage under the assault and battery
exclusion contained in the insurance policy.”
also Archie, 507 F.App’x at 454.

Id. at *16.

See

The same analysis applies here:

neither Carter, Lewis, nor Lowe would have brought their actions
but for being shot.

Thus, the Assault or Battery Exclusion

applies.
11

In Burlington Ins. Co. v. American Legion Post 230, 2018 U.S.
Dist. LEXIS 158911, at *3-4, U.S. District Judge Carlton Reeves,
relying on Coleman, explained that “[t]his 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 a shooting.”
Legion Post 230, 2018 U.S. Dist. LEXIS 158911, at *3-4.

Am.

See also

Coleman v. Acceptance Indem. Ins. Co., 369 F.App’x 595, 597 (5th Cir
2010)(finding allegations of failure to provide adequate security
fall within the assault and battery exclusion); Adams, 1998 U.S.
App. LEXIS 39646 at *11-12 (holding claims of negligence asserted
against

the

nightclub’s

owner

excluded

under

similar

policy

language); and Cullop, 129 F.Supp. 2d at 983 (ruling that since the
negligence

claims

against

the

nightclub’s

owner

only

existed

because of the assault and battery, the exclusion applied).
Carter, Lewis and Lowe allege that they were shot while they
were at Moe’s Food Mart.

They blame Moe’s Food Mart and Moe Alabdy

for their injuries based on their failure to prevent the shooting
or warn against it.

However, the policy’s Assault or Battery

Exclusion applies to any bodily injury that arises out of an
assault, battery, or physical altercation, and specifically applies
to bodily injuries that arise out of the insured’s failure to keep
the premises in a safe condition and any failure to prevent,

12

suppress, or warn of the dangerous condition.

The allegations of

the underlying lawsuits fall within the Great Lakes policy’s
Assault or Battery Exclusion.
Applying

the

Coleman

line

of

cases

to

the

underlying

complaints leads to one conclusion: there is no coverage for the
three lawsuits because they arise out of an excluded battery.
Since the specific insurance coverage does not apply in this case,
Great Lakes has no duty to defend and never had a duty to defend.
The Court therefore finds that Summary Judgment should be granted.
In addition, Carter was shot three months before the Great
Lakes policy went into effect.

Great Lakes issued its commercial

lines policy to One Stop Mart LLC, effective December 14, 2016, and
expiring December 14, 2017.

See EXHIBIT 1 at GREATLAKES.001.

For

the insurance to apply, there must be a “bodily injury” that
“occurs during the policy period ....”

Id.

Carter alleges that

the shooting that caused his injury took place on September 13,
2016.

See EXHIBIT 7, ¶ 6.

The Great Lakes policy took effect

three months later.
The policy’s language is clear: when Carter was shot, Great
Lakes did not cover any of the Moe Defendants or Moe’s Food Mart.
Therefore, Great Lakes has no duty to defend or indemnify Moe’s
Food Mart or Alabdy, and summary judgment shall be granted in Great
Lakes’ favor.
Great Lakes only had a duty to defend a lawsuit to which the

13

insurance issued to One Step Mart applies.

The Carter lawsuit

arises out of a shooting three months before the policy’s effective
date,

so

there

is

no

coverage

available

for

that

lawsuit.

Moreover, the Carter, Lewis and Lowe lawsuits all arise out of the
plaintiffs in the underlying lawsuits being shot.

The allegations

in all three cases fall squarely within the terms of the Assault or
Battery Exclusion.

Because no coverage is available, there is no

duty on the part of Great Lakes to defend or indemnify One Stop
Mart LLC, Moe’s Food Mart Store, Moe’s Mini Mart, or Moe Alabdy.
The Court finds that Summary Judgment should be granted to Great
Lakes.
Finally, Great Lakes seeks costs and reasonable attorneys’
fees.

See docket entry 52, page 11.

filed a motion.

However, Great Lakes has not

If Great Lakes intends to pursue this matter it

must file a motion with the Court.
Accordingly,
IT IS HEREBY ORDERED that the plaintiff Great Lakes Insurance
SE’s Motion for Summary Judgment (docket entry 21) and Amended
Motion for Summary Judgment (docket entry 51) are GRANTED;
FURTHER ORDERED that the plaintiff shall provide the Court and
counsel opposite with a proposed Final Judgment.
SO ORDERED, this the 19th day of June, 2019.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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