Nationwide Affinity Insurance Company v. Rutledge et al

Filing 29

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's Motion for Default Judgment 10 and Plaintiff's Motion for Summary Judgment 17 are GRANTED. Signed by District Judge Rodney W. Sippel on 1/10/17. (CAR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NATIONWIDE AFFINITY
INSURANCE COMPANY,
Plaintiff,

v.
REBEKAH RUTLEDGE and
JOSEPH P. LUDWINSKI,
Defendants.

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Case No. 4:15 CV 1757 RWS

MEMORANDUM AND ORDER
Plaintiff Nationwide Affinity Insurance Company (“Nationwide”) seeks a
declaratory judgment that it has no duty to defend or indemnify Defendant
Rebekah Rutledge (“Rutledge”) in a state court personal injury lawsuit maintained
by Defendant Joseph P. Ludwinski (“Ludwinski”). Nationwide submitted a
motion for default judgment against Rutledge and a motion for summary judgment
against both Defendants. Based upon a review of the record before the court, I will
grant both motions in Nationwide’s favor.
I.

Background

The facts in this matter are undisputed. Ludwinski, Rutledge, and Ethan
Muffett (“Muffett”) were students at Westminster College in Fulton, Missouri

(“Westminster”). On September 20, 2013, Ludwinski, Rutledge, and Muffett
attended a party at Sigma Chi-Delta Tau Fraternity on the Westminster campus.
At the party, Muffett allegedly seriously assaulted and battered Ludwinski, causing
extensive injuries. Ludwinski brought the underlying personal injury lawsuit in the
Circuit Court of Callaway County, Missouri, Joseph P. Ludwinski v. Ethan
Muffett, et al., Case No. 15CW-CV00699 (the “underlying suit”) against several
parties, including Muffett and Rutledge. Ludwinski asserts that Rutledge caused
the assault by falsely telling Muffett that Ludwinski had behaved inappropriately
towards her and her friends. Ludwinski’s Petition for Damages in the underlying
suit specifically alleges that Rutledge “instigated, encouraged and caused the
assault,” was “negligent and/or willful, wanton and showed a reckless indifference
to or conscious disregard” for Ludwinski’s rights, “knew or should have known”
that Muffett was likely to cause serious damage and injury, and directly and
proximately caused Ludwinski’s damages. Ludwinski’s alleged damages include
serious and permanent injuries, medical expenses and treatment, lost wages, and
his withdrawal from Westminster.
Rutledge is insured under three Nationwide insurance policies issued to her
parents, John and Susan Rutledge (collectively, the “Insurance Policies”).
Nationwide has defended Rutledge in the underlying suit, subject to a reservation
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of its rights to discontinue its defense. Nationwide brought this action seeking a
declaratory judgment that the Insurance Policies do not establish any duty to
defend or indemnify Rutledge in the underlying suit. Nationwide also moved for
summary judgment as a matter of law. Nationwide asserts that there is no
reasonable likelihood of a covered judgment being taken against Rutledge under
any of the Insurance Policies, given the initial allegations in the underlying suit and
the plain and unambiguous language of the Insurance Policies. Ludwinski
submitted opposition to Nationwide, requesting that this court abstain from and
decline to exercise jurisdiction and decline to enter judgment. Ludwinski argues
that the Insurance Policies obligate Nationwide to defend and indemnify Rutledge.
To date, Rutledge has not entered an appearance, submitted responsive pleadings,
or otherwise provided any defense in this action. The Clerk of Court entered an
order of default against Rutledge in this action on May 27, 2016.
The state circuit court dismissed Rutledge from the underlying suit, without
prejudice. However, this matter remains ripe for judgment since Ludwinski
reported that he still intends to pursue his claims against Rutledge by appeal or
amended pleadings. Ludwinski also continues to pursue related damages claims
against other parties in the underlying suit. Muffett pleaded guilty to felony
charges in a state court criminal action related to the incident.
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The Insurance Policies provide for coverage as follows:
Homeowner’s Policy. Homeowner’s liability policy number HOA

1.

0040504853 (the “Homeowner’s Policy”) insures a property located at 1499
Heritage Valley Dr., High Ridge, Missouri and provides general personal property
and personal liability coverage. The Homeowner’s Policy’s effective policy
period was from January 9, 2013 to January 9, 2014. The Homeowner’s Policy
includes the following terms and conditions:
DEFINITIONS
***
2. “Bodily injury” means bodily harm, sickness or disease, including
required care, loss of services and death that results.
***
8. Under Section II “Occurrence” means an accident, including continuous
or repeated exposure to substantially the same general harmful
conditions, which results, during the policy period, in:
a. “Bodily injury” or
b. “Property damage”.
[Doc. # 18-3 at 15-16].
SECTION II - LIABILITY COVERAGES
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A. COVERAGE E - Personal Liability
If a claim is made or a suit is brought against an “insured” for damages
because of “bodily injury” or “property damage” caused by an “occurrence”
to which this coverage applies, we will:
1. Pay up to our limit of liability for the damages for which an
“insured” is legally liable. Damages include prejudgment interest
awarded against an “insured”; and
2. Provide a defense at our expense by counsel of our choice, even if
the suit is groundless, false or fraudulent.
***
B. COVERAGE F - Medical Payments to Others
We will pay the necessary medical expenses that are incurred or medically
ascertained within three years from the date of an accident causing “bodily
injury”…this coverage applies only:…
2. To a person off the “insured location”, if the “bodily injury”:..
b. Is caused by the activities of an “insured”;…
Id. at 29.
SECTION II - EXCLUSIONS
***
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Coverages E and F do not apply to the following:
1. Expected or Intended Injury
“Bodily Injury” or “property damage” which is expected or intended by an
“insured” even if the resulting “bodily injury” or “property damage”:
a. Is of a different kind, quality or degree than initially expected or
intended; or
b. Is sustained by a different person, entity, real or personal property,
than initially expected or intended.
***
7. Sexual molestation, Corporal Punishment Or Physical Or Mental
Abuse
“Bodily injury” or “property damage” arising out of any:
a. Sexual activity or conduct,
b. Corporal punishment, or
c. Physical or mental abuse.
This exclusion applies whether or not any acts were intentional or
unintentional and whether or not the acts were in violation of any criminal or
penal code or statute.
Id. at 31-32.
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2.

Farrell Drive Policy. Dwelling policy number DP 0040521090 (the

“Farrell Drive Policy”) insures properties located at 1934 Farrell Drive, St. Louis,
Missouri, 7735 Bloom Drive, St. Louis, Missouri, 1913 N. Hanley Rd., St. Louis,
Missouri, and 7917 Underhill Dr., St. Louis, Missouri. The Farrell Drive Policy’s
effective policy period was from February 28, 2013 to February 28, 2014. The
Farrell Drive Policy includes dwelling and personal liability coverage for the
“insured premises,” i.e., the previously identified locations. The Farrell Drive
Policy includes the following terms and conditions:
DEFINITIONS
***
2. Bodily Injury - This means bodily harm, sickness or disease to a person
which occurs during the policy period.
***
6. Insured Premises - This means:
a. the one to four family dwelling shown in the declarations, and the
grounds at that location.
***
8. Occurrence - This means an accident and includes loss from repeated
exposure to similar conditions.
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[Doc. # 18-4 at 14].
PRINCIPAL COVERAGES
COVERAGE L - Bodily Injury or Property Damage
We pay, up to our limit, all sums for which an insured is liable by law
because of bodily injury or property damage caused by an occurrence
arising out of an insured premises or its incidental operations. We will
defend a suit seeking damages if the suit results from such bodily injury or
property damage.
Id. at 15.
EXCLUSIONS
1. We do not pay for bodily injury or property damage which is expected
by, directed by, intended by or arises out of an act of force by an insured.
Id. at 16.
3. Maldon Lane Policy. Dwelling policy number DP 0044148312 (the
“Maldon Lane Policy”) insures a property located at 1687 Maldon Lane, St. Louis,
Missouri. The Maldon Lane Policy’s effective policy period was from September
26, 2013 to September 26, 2014. The Maldon Lane Policy provides, “[t]his policy
applies only to loss which occurs during the policy period.” [Doc. # 18-5 at 17].

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II.

Legal Standard
a. Summary Judgment

Summary judgment is appropriate if the evidence, viewed in the light most
favorable to the nonmoving party, demonstrates that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of
law. Lynn v. Deaconess Medical Center, 160 F.3d 484, 486 (8th Cir. 1998) (citing
Fed. R. Civ. P. 56(c)). The party seeking summary judgment bears the initial
responsibility of informing the court of the basis of its motion and identifying those
portions of the affidavits, pleadings, depositions, answers to interrogatories, and
admissions on file which it believes demonstrates the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When such a
motion is made and supported by the movant, the nonmoving party may not rest on
his pleadings but must produce sufficient evidence to support the existence of the
essential elements of his case on which he bears the burden of proof. Id. at 324. In
resisting a properly supported motion for summary judgment, the plaintiff has an
affirmative burden to designate specific facts creating a triable controversy.
Crossley v. Georgia Pacific Corp., 355 F.3d 1112, 1113 (8th Cir. 2004).
b. Default Judgment
When the Clerk of Court has entered default against a defendant, the
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“allegations of the complaint except as to the amount of damages are taken as
true.” Mueller v. Jones, No. 2:08CV16 JCH, 2009 WL 500837, at *1 n.2 (E.D. Mo.
Feb. 27, 2009) (quoting Brown v. Kenron Aluminum & Glass Corp., 477 F.2d 526,
531 (8th Cir. 1973)). Accordingly, in deciding Nationwide’s present motion for
default judgment against Rutledge, the Court accepts as true the factual allegations
contained in Nationwide’s Complaint for Declaratory Judgment.
III.

Discussion

Nationwide has no duty to indemnify or defend Rutledge in the underlying
suit. First, Nationwide is entitled to a default judgment on its Complaint against
Rutledge due to Rutledge’s failure to enter an appearance, submit any pleadings, or
otherwise provide any defense in this action. The Clerk of Court entered an order
of default against Rutledge in this action on May 27, 2016. I will grant
Nationwide’s Motion for Default Judgment against Rutledge.
Second, Nationwide is entitled to summary judgment on its Complaint
against both Rutledge and Ludwinski based upon the terms of the Insurance
Policies. “Interpretation of an insurance policy is a matter of state law,” and for
this determination “we are bound in our construction of Missouri law by the
decisions of the Missouri courts.” Am. Family Mut. Ins. Co. v. Co Fat Le, 439
F.3d 436, 439 (8th Cir. 2006). “Under Missouri law, the insured has the burden of
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proving coverage, and the insurer has the burden of proving that an insurance
policy exclusion applies.” Id. (citing Christian v. Progressive Cas. Ins., Co., 57
S.W.3d 400, 403 (Mo.Ct.App. 2001)). Insurance policies are contracts to which
the general rules of contract construction apply. Todd v. Missouri United Sch. Ins.
Council, 223 S.W.3d 156, 160 (Mo. 2007). “The key is whether the contract
language is ambiguous or unambiguous.” Id. “Where insurance policies are
unambiguous, they will be enforced as written absent a statute or public policy
requiring coverage.” Peters v. Emp’rs. Mut. Cas. Co., 853 S.W.2d 300, 302 (Mo.
1993). Ambiguous language will be construed against the insurer. Id. In
interpreting insurance policies, Missouri courts attempt to ascertain and give effect
to the parties’ intention, which is presumptively expressed by the plain and
ordinary meaning of the contract provisions and read in context of the policy as a
whole. Gohagan v. Cincinnati Ins. Co., 809 F.3d 1012, 1015 (8th Cir. 2016). “An
ambiguity exists when there is duplicity, indistinctness, or uncertainty in the
meaning of the language in the policy. Language is ambiguous if it is reasonably
open to different constructions.” United Fire & Cas. Co. v. Titan Contractors Serv.,
Inc., 751 F.3d 880, 883-84 (8th Cir. 2014) (quoting Jones v. Mid–Century Ins. Co.,
287 S.W.3d 687, 690 (Mo. 2009)). “Missouri courts apply the meaning that would
be given to the policy by an ‘ordinary person of average understanding if
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purchasing insurance.’” W. Heritage Ins. Co. v. Asphalt Wizards, 795 F.3d 832,
838 (8th Cir. 2015) (quoting Burns v. Smith, 303 S.W.3d 505, 509 (Mo. banc
2010) (citation omitted)).
An insurer has “two distinct duties: the duty to indemnify the insured for
covered losses, and the duty to defend the insured in any lawsuit seeking damages
that would be covered losses.” Trainwreck W. Inc. v. Burlington Ins. Co., 235
S.W.3d 33, 44 (Mo.Ct.App. 2007). The duty to defend is broader than the duty to
indemnify, so if the insurer has no duty to defend, it has no duty to indemnify. Id.
To determine whether coverage applies, Missouri courts “compare the allegations
of the underlying complaint to the language of the insurance policy.” Allstate Ins.
Co. v. Blount, 491 F.3d 903, 910 (8th Cir. 2007) (citations omitted). If the
underlying complaint “upon its face alleges a state of facts which fail to bring the
case within the coverage of the policy,” the insurer does not have a duty to defend
or indemnify the insured party. Trainwreck, 235 S.W.3d at 42 (citation omitted).
Here, I must determine whether the Insurance Policies obligate Nationwide
to defend and indemnify Rutledge in the underlying suit. Although Rutledge has
been dismissed from the underlying suit, I will look to the original complaint in the
underlying suit (the “underlying complaint”) to determine the scope of
Ludwinski’s potential claims against Rutledge. The underlying complaint alleges,
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in part, that Rutledge’s statements to Muffett directly caused Ludwinski’s
damages, and that Rutledge’s conduct was “negligent and/or willful, wanton and
showed a reckless indifference to or conscious disregard” for Ludwinski’s rights.
Ludwinski asserts that the allegations in the underlying complaint are sufficient to
survive summary judgment and establish rights to coverage under the Insurance
Policies. Nationwide argues that the Insurance Policies do not require coverage
under the circumstances. Because the Insurance Policies have unique terms and
conditions, I will address each of the Insurance Policies separately.
a. Homeowner’s Policy
The Homeowner’s Policy does not obligate Nationwide to defend or
indemnify Rutledge. Nationwide argues that the Homeowner’s Policy does not
require coverage for two primary reasons: (i) the incident does not qualify as an
occurrence, since Muffett’s intentional assault and battery caused Ludwinski’s
injuries, and (ii) Ludwinski’s injuries arose out of physical abuse, which is
excluded from coverage. Ludwinski asserts that the Homeowner’s Policy requires
coverage based upon the allegations that Rutledge acted negligently and
proximately caused Ludwinski’s injuries.
The Homeowner’s Policy provides for coverage if a claim is brought against
an insured for damages because of bodily injury caused by an occurrence. The
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Homeowner’s Policy defines an “occurrence” to encompass an “accident” which
results in “bodily injury.” “[A]n ‘accident’ is an event that takes place without
one’s foresight or expectation.” Am. States Ins. Co. V. Mathis, 974 S.W.2d 647,
650 (Mo.Ct.App. 1998). “Under Missouri law, a liability policy defining
‘occurrence’ as an accident necessarily encompasses a negligence claim.” Blount,
491 F.3d at 910 (citing Wood v. Safeco Ins. Co., 980 S.W.2d 43, 49
(Mo.Ct.App.1998)). The underlying complaint presents allegations that Rutledge
acted negligently, which would suggest potential availability of coverage.
However, all of Ludwinski’s alleged damages in the underlying suit are
attributable to Muffett’s intervening assault and battery, which falls under a policy
exclusion. The Homeowner’s Policy excludes from coverage any bodily injury
“arising out of…physical abuse,” regardless of intention. “Although the injuries
may have been caused by the negligent acts of the defendant, that does not
necessarily mean that they did not arise out of an assault and/or battery.” Capitol
Indem. Corp. v. Callis, 963 S.W.2d 247, 250 (Mo.Ct.App. 1997). Here, Muffett’s
assault and battery intervened to cause all of Ludwinski’s injuries. Without
Muffett’s criminal conduct, Ludwinski would not have any actionable negligence
allegations against Rutledge. “[T]he negligence allegations in the petition of the
underlying suit are premised on the alleged assault and battery. Therefore, if the
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exclusion applies to negligence actions arising out of an assault and battery, then
[Nationwide] has no duty to defend.” Id. at 251. The Homeowner’s Policy
excludes the underlying suit from coverage.
Ludwinski also argues that the concurrent proximate cause doctrine requires
coverage. “Missouri law provides that when an insured risk and an excluded risk
constitute concurrent proximate causes of an injury, a liability insurer is liable so
long as one of the causes is covered by the policy.” Co Fat Le, 439 F.3d at 439.
“In determining whether this concurrent proximate cause doctrine applies, we must
ascertain whether the alleged covered cause is an act independent and distinct from
the excluded cause of the injury.” Id. (citing Hunt v. Capitol Indem. Corp., 26
S.W.3d 341, 345 (Mo.Ct.App. 2000)). For the concurrent proximate cause
doctrine to apply, Rutledge’s conduct would need to be an independent and distinct
cause of Ludwinski’s injuries. However, Ludwinski’s claims against Rutledge
necessarily rely upon Ludwinski’s claims against Muffett – without the excluded
assault and battery, Ludwinski would not have been injured and there would be no
basis for Ludwinski’s action against Rutledge. Therefore, the concurrent
proximate cause doctrine does not require coverage under the circumstances.
b. Farrell Drive Policy
Nationwide has no duty to defend or indemnify Rutledge under the Farrell
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Drive Policy, because the assault incident did not occur at an insured location. The
Farrell Drive Policy is a dwelling policy which limits coverage to instances of
bodily injury “caused by an occurrence arising out of an insured premises or its
incidental operations.” The Westminster fraternity house where the incident at
issue occurred is not one of the four specifically identified “insured premises”
under the terms of the Farrell Drive Policy. As such, the Farrell Drive Policy does
not require Nationwide to defend or indemnify Rutledge for Ludwinski’s injuries.
c. Maldon Lane Policy
Nationwide has no duty to defend or indemnify Rutledge under the Maldon
Lane Policy, because this policy was not in effect when the alleged injury
occurred. The assault incident, including Rutledge’s alleged actions, occurred on
September 20, 2013. The Maldon Lane Policy’s effective policy period was from
September 26, 2013 to September 26, 2014. The Maldon Lane Policy expressly
provides that it “applies only to loss which occurs during the policy period.”
Because the Rutledges obtained the Maldon Lane Policy after the date of the
incident at issue, the Maldon Lane Policy is inapplicable to the underlying lawsuit.
None of the Insurance Policies establishes a duty to defend or indemnify
Rutledge under the circumstances. For the foregoing reasons, and based upon the
record before the Court, I conclude that Plaintiff’s Motions for Default Judgment
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and Summary Judgment shall be granted.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Default Judgment
[10] and Plaintiff’s Motion for Summary Judgment [17] are GRANTED.

______________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 10th day of January, 2017.

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