James River Insurance Company v. Icon Corp et al

Filing 32

ORDER adopting 27 Report and Recommendations; granting in part and denying in part 18 Motion for Summary Judgment. So Ordered by Chief Judge William E. Smith on 1/19/2016. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
ICON CORP., et al.,
)
)
Defendants.
)
___________________________________)
JAMES RIVER INSURANCE CO.,

C.A. No. 13-681 S

ORDER
WILLIAM E. SMITH, Chief Judge.
Plaintiff, James River Insurance Co. (“James River”) brings
this declaratory judgment action against Icon Corp. (“Icon”), its
insured, seeking a declaration that it does not owe a duty to
defend Icon in two unrelated personal injury lawsuits.

Magistrate

Judge Lincoln D. Almond issued a Report & Recommendation (“R&R”)
(ECF No. 27) recommending that James River’s Motion for Summary
Judgment (ECF No. 18) be denied in part and granted in part.
River timely objected to a portion of the R&R.
opposed James River’s objection.

(ECF No. 28.)

(ECF No. 30.)

James
Icon

For the reasons

that follow, the Court OVERRULES James River’s objection and
ACCEPTS the R&R pursuant to 28 U.S.C. § 636(b)(1).
I.

Background
The R&R thoroughly recounts the underlying facts, and they

need not be reproduced in detail here.

In brief, James River

issued a commercial general liability policy to Icon insuring Icon

against litigation relating to the operations of Icon’s night
clubs.

The policy, however, excluded coverage for claims arising

out of “assault and battery” and intentional acts.

James River

sought a declaratory judgment that two lawsuits fell into these
exceptions — one brought by Tony Tran, and another brought by
Nicholas

Rampone.

occurred

at

The

different

altercations
times

and

underlying

were

unrelated.

these
The

suits
R&R

recommended denying summary judgment as to the Tran suit and
granting it as to the Rampone suit.

No timely objections were

filed as to Magistrate Judge Almond’s recommendation relating to
the Rampone action. 1

The Court, thus, adopts Magistrate Judge

Almond’s recommendations relating to that claim without further
comment.

1

See LR Cv 72(d)(1).

As noted above, James River objects

At the conclusion of its Response to James River’s
Objection, Icon includes a single paragraph arguing that James
River should not receive summary judgment as to the Rampone claim.
(Icon Resp. to Obj. 3-4, ECF No. 30-1.)
Icon’s conclusory two
sentence paragraph does not contain any analysis or citations.
Accordingly, it does not amount to a viable objection to the R&R.
See DCC Operating, Inc. v. Rivera Siaca (In re Olympic Mills
Corp.), 477 F.3d 1, 17 (1st Cir. 2007) (finding a damages claim
waived because “as presented to the district court . . . the
argument was fatally undeveloped, comprising only four sentences,
a citation to a district court opinion, and no analysis
whatsoever”). Further, even if Icon had properly developed its
objections, it is untimely. The deadline for objecting expired on
September 9, 2015. Icon did not file its Response until November
3, 2015.
(See ECF No. 30.)
Accordingly, pursuant to LR Cv.
72(d)(1), Icon waived its objection.
2

to Magistrate Judge Almond’s recommendation to deny it summary
judgment on the Tran action.
II.

Discussion
Generally,

Rhode

Island

applies

the

“pleading

test”

to

determine an insurer’s duty to defend under a liability insurance
policy.

Progressive Cas. Ins. Co. v. Narragansett Auto Sales, 764

A.2d 722, 724 (R.I. 2001).

Under this test, an insurer “must

defend [an insured] if the facts alleged [in the complaint] fall
or potentially fall within the scope of coverage.”

Mount Vernon

Fire Ins. Co. v. Stagebands, Inc., 636 F. Supp. 2d 143, 147 (D.R.I.
2009) (citing Flori v. Allstate Ins. Co., 388 A.2d 25, 26 (R.I.
1978)).

But the duty to defend is not interminable.

Id.

An

insurer can halt its duty by showing as a matter of law that claims
could never be within the bounds of coverage.

Id. (collecting

cases).
James River objects to Magistrate Judge Almond’s R&R on the
latter ground, arguing that record evidence forecloses any chance
that Tran could bring a non-excluded negligence claim against Icon.
James River’s objection is misplaced.

As Magistrate Judge Almond

correctly concluded, there is still uncertainty about how Tran
sustained his injuries.

For instance, there remain questions as

to whether Tran was thrown down the stairs or tripped.

(See Def.’s

Statement of Undisputed Facts (“SUF”) ¶ 23, ECF No. 23.)
3

And, if

Tran was thrown down the stairs, there remain questions as to who
threw him, a bouncer or someone else.

(See id. ¶¶ 24-26.)

Accordingly, based on Tran’s complaint and the facts presented at
summary

judgment,

it

remains

possible

that

negligence

caused

Tran’s injury, keeping the door to coverage open. See Am. Commerce
Ins. Co. v. Porto, 811 A.2d 1185, 1196-97 (R.I. 2002) (coverage
should continue where plaintiff alleges “separate, independently
caused

bodily

injuries”

resulting

solely

from

the

insured’s

negligence).
In objecting to the R&R, James River relies heavily on this
Court’s

ruling

recommendation
principles.

in
is

Mount

Vernon,

“incompatible”

arguing

with

that

(Obj. to R&R 7, ECF No. 28-1.)

assertion is incorrect.

R&R’s

Vernon’s

Mount

the

legal

James River’s

Unlike here, in Mount Vernon, the parties

did not dispute that the plaintiff was injured by a battery, an
excluded claim under the defendant’s liability insurance policy.
636 F. Supp. 2d at 148 n.3.

Instead, the defendant argued that

the battery exclusion did not halt the insurer’s duty to defend
because

a

negligently

plaintiff’s injuries.

designed

parking

Id. at 149.

lot

exacerbated

the

The Court rejected this

argument.

While the negligent conduct may have been a proximate

cause

plaintiff’s

of

injuries,

it

was

not

a

“separate

and

independent injury based solely on [the defendant’s] negligence
4

. . . .”

Id. at 149.

Accordingly, “[t]here [was] no question

[plaintiff’s] injuries were caused by the [battery] — even if the
parking layout was an after-the-fact contributing and worsening
cause.”

Id.

Here, by contrast, Tran’s potential negligence claim does not
arise from conduct occurring after the battery.

It arises from

the very conduct that caused Tran’s injuries – falling down the
stairs at the club.

And, unlike in Mount Vernon, there are

questions as to whether Tran’s injuries were caused by the battery
or

some

other

negligent

conduct.

James

River,

thus,

cannot

“confute any [ ] potential for coverage as a matter of law.”

Id.

at 147 (internal quotation marks and citation omitted).
James River also asserts that any negligence theory Tran could
pursue “would still be excluded by the Policy’s expansive Assault
and

Battery

Exclusion.”

(Obj.

to

R&R

10,

ECF

No.

28-1.)

Specifically, James River argues that the policy excludes all
claims where “intentional battery [allegations] are combined with
allegations

of

negligence,

negligent training.” (Id.)

including

negligent

employment

and

Assuming arguendo that the policy

exclusion is as broad as James River asserts, Tran’s potential
negligence claims still fall outside of it. James River’s argument
assumes that a battery occurred.

However, as noted above, this

remains an open question; a battery, negligent conduct, or a
5

combination of the two could have caused Tran’s injuries.

The

facts of this case potentially could fall within the scope of
coverage and, thus, James River has not demonstrated that, as a
matter of law, it has no duty to defend Icon. 2
III. Conclusion
For the foregoing reasons, this Court ADOPTS the Report and
Recommendation submitted by Magistrate Judge Almond. James River’s
Motion for Summary Judgment (ECF No. 18) is DENIED as to the Tran
claim and GRANTED as to the Rampone claim.
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: January 19, 2016

2

James River also asserts that the R&R “fail[ed] to
appreciate the current status of litigation and discovery in the
underlying [state court action]” when it held that facts are still
being discovered. (Obj. to R&R 4, ECF No. 28-1.) In support of
this statement, James River points to the discovery that has
already taken place. But, tellingly, James River does not indicate
that discovery is complete. Indeed, it admits that the state court
case is “in a holding pattern” pending the resolution of this
coverage dispute. (Id. at 5 n.4.)
6