Scottsdale Insurance Company v. Moonshine Saloon LLC et al
ORDER denying 8 Motion for Summary Judgment; granting 11 Motion for Summary Judgment Signed by Honorable David C Norton on January 6, 2017.(rweh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
MOONSHINE SALOON, LLC, and
ROY W. INFINGER, JR., as Personal
Representative of the Estate of APRIL
The instant matters are before the court on plaintiff Scottsdale Insurance
Company (“Scottsdale”) and defendant Roy W. Infinger, Jr.’s (“Infinger”) cross
motions for summary judgment. For the following reasons the court grants
Scottsdale’s motion for summary judgment, and denies Infinger’s motion for
On the night of December 8, 2013, decedent April Infinger (“decedent”), and
her husband, Wayne Infinger (“Wayne”), attended a concert at the Moonshine Saloon
(the “Saloon”), a bar and grill operated by defendant Moonshine Saloon, LLC
(“Moonshine LLC”). ECF No. 1, Ex. B, Underlying Compl. ¶¶ 6–8. The Saloon was
crowded that night and a number of Moonshine LLC’s security personnel were
present. Id. ¶ 8. At some point, another patron, Shearon Bennett (“Bennett”), became
involved in an altercation and was asked to leave. Id. ¶¶ 9, 10. Though the nature of
this altercation and Bennett’s subsequent actions are the subject of some dispute, it is
undisputed that Bennett eventually discharged a firearm in the Saloon’s parking lot,
and that one round from the firearm penetrated a wall of the Saloon and struck
decedent in the back. Id. ¶¶ 11, 12. Decedent later died from the injuries she
sustained in the shooting. Id. ¶ 13.
At the time of the shooting, Moonshine LLC was insured by a commercial
general liability policy provided by Scottsdale (the “Policy”). Compl. Ex. A, Policy.
Under the Policy, Scottsdale agreed to “pay those sums that [Moonshine LLC]
becomes legally obligated to pay as damages because of ‘bodily injury’” where such
“‘bodily injury’ is caused by an ‘occurrence.’” Id. at 17.1 The Policy defines an
“occurrence” as “an accident, including continuous or repeated exposure to
substantially the same general harmful conditions.” Id. at 31. The Policy provides
coverage of up to $1,000,000 per occurrence. Id. at 14.
However, such coverage is subject to an Assault and Battery Sublimit (“A/B
Sublimit”), pursuant to which the Policy’s $1,000,000 per occurrence coverage limit
does not extend to “injury” or “bodily injury” arising from:
1. Assault and/or Battery committed by . . . [a]ny insured [or] [a]ny
other person; or
2. The failure to suppress or prevent Assault and/or Battery by any
person in 1. above; or
3. The selling, serving or furnishing of alcoholic beverages which
results in Assault and/or Battery; or
4. The negligent . . . Employment; . . . Supervision; Reporting to
proper authorities, or failure to so report; or . . . Retention . . . of a
person for whom any insured is or ever was legally responsible and
whose conduct would be excluded by paragraphs 1. and 2. above.
Citations to the Policy refer to the page number of the exhibit, not the page
number designated on the Policy itself.
Id. at 48. Instead, the A/B Sublimit substitutes a $25,000 per occurrence coverage
limit—and a $50,000 aggregate limit—for all “damages” that Scottsdale becomes
legally obligated to pay “because of ‘injury,’ [or] ‘bodily injury’ . . . to any person
arising out of Assault and/or Battery.” Id. at 48, 49.
On January 20, 2015, Infinger filed suit against Moonshine LLC in the Court
of Common Pleas for Berkeley County, bringing causes of action for negligence,
gross negligence, and recklessness in connection with decedent’s death (the
“underlying action”). Underlying Compl. ¶¶ 14–22. Pursuant to the Policy,
Scottsdale is providing a defense to Moonshine LLC in the underlying suit. Compl.
¶ 13. However, the parties disagree as to the extent of Scottsdale’s coverage
obligations. Scottsdale contends that the A/B Sublimit applies, and consequently, that
Scottsdale’s liability for the claims in the underlying action is limited to $25,000. Id.
Scottsdale filed the instant declaratory judgment action on March 11, 2016.
Infinger file a motion for summary judgment on April 12, 2016. ECF No. 8.
Scottsdale filed a response to Infinger’s motion, ECF No. 12, and filed its own
motion for summary judgment on April 29, 2016. ECF No. 11. Infinger filed a reply
in support of his initial motion on May 9, 2016, ECF No. 14, and filed a response to
Scottsdale’s motion on May 16, 2016. ECF No. 20. Scottsdale filed a reply in
support of its motion on May 26, 2016. ECF No. 21. Both motions are now ripe for
the court’s review.
Summary judgment is appropriate “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). “Rule 56(c) of the Federal Rules of Civil
Procedure requires that the district court enter judgment against a party who, ‘after
adequate time for discovery . . . fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.’” Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 190
(4th Cir. 1997) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Any
reasonable inferences are to be drawn in favor of the nonmoving party. See Webster
v. U.S. Dep’t of Agric., 685 F.3d 411, 421 (4th Cir. 2012). However, to defeat
summary judgment, the nonmoving party must identify an error of law or a genuine
issue of disputed material fact. See Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986); see also Bouchat v. Balt. Ravens Football Club, Inc.,
346 F.3d 514, 522 (4th Cir. 2003).
Although the court must draw all justifiable inferences in favor of the
nonmoving party, the nonmoving party must rely on more than conclusory
allegations, mere speculation, the building of one inference upon another, or the mere
existence of a scintilla of evidence. See Anderson, 477 U.S. at 252; Stone, 105 F.3d
at 191. Rather, “a party opposing a properly supported motion for summary
judgment . . . must ‘set forth specific facts showing that there is a genuine issue for
trial.’” Bouchat, 346 F.3d at 522 (quoting Fed. R. Civ. P. 56(e) (2002) (amended
2010)). If the adverse party fails to provide evidence establishing that the factfinder
could reasonably decide in his favor, then summary judgment shall be entered
“regardless of ‘[a]ny proof or evidentiary requirements imposed by the substantive
law.’” Id. (quoting Anderson, 477 U.S. at 248).
“[A]t the summary judgment stage the judge’s function is not himself to
weigh the evidence and determine the truth of the matter but to determine whether
there is a genuine issue for trial.” Id. at 249. When the party moving for summary
judgment does not bear the ultimate burden of persuasion at trial, it may discharge its
burden by demonstrating to the court that there is an absence of evidence to support
the non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
The non-movant must then “make a showing sufficient to establish the existence of
an element essential to that party’s case, and on which that party will bear the burden
of proof at trial.” Id. at 322.
The central question in this case is the applicability of the A/B Exclusion.
Infinger contends that Bennett’s discharge of the firearm did not constitute “assault”
or “battery” within the meaning of the A/B Sublimit, because those terms require
intent to harm, which Bennett could not possibly have formed.2 Def.’s Mot. 6–7;
Infinger also attempts to apply prior case law dealing with “intentional acts
exclusions” which the South Carolina Supreme Court has described as
“exclusion[s] . . . related to damages caused intentionally by or at the direction of the
insured.” Miller v. Fid.-Phoenix Ins. Co., 231 S.E.2d 701, 702 (S.C. 1977). The A/B
Sublimit is clearly not an intentional acts exclusion because it extends to actions other
than the intentional acts of the insured, including: (i) “Assault and/or Battery
committed by . . . [a]ny other person[;]” (ii) “[t]he failure to suppress or prevent
Assault and/or Battery by [the insured or any other person;]” (iii) “[t]he selling,
serving or furnishing of alcoholic beverages which results in Assault and/or
Battery[;]” and (iv) negligent employment, supervision, reporting, or retention of a
person who commits or fails to suppress or prevent an Assault and/or Battery. Policy
Def.’s Resp. 5–10. Scottsdale counters that the terms “assault” and “battery,” as used
in the Policy, do not require intent, and even if they do, Bennett’s actions nevertheless
fall within the scope of the A/B Sublimit. Pl.’s Mot. 7–14.
“An insurance policy is a contract between the insured and the insurance
company, and the terms of the policy are to be construed according to contract law.”
Auto Owners Ins. Co. v. Rollison, 663 S.E.2d 484, 487 (S.C. 2008). “The cardinal
rule of contract interpretation is to ascertain and give legal effect to the parties’
intentions as determined by the contract language.” Beaufort Cty. Sch. Dist. v.
United Nat. Ins. Co., 709 S.E.2d 85, 90 (S.C. Ct. App. 2011) (citing Schulmeyer v.
State Farm Fire & Cas. Co., 579 S.E.2d 132, 134 (S.C. 2003)). “If the contract’s
language is clear and unambiguous, the language alone, understood in its plain,
ordinary, and popular sense, determines the contract’s force and effect.” Id. (citing
Schulmeyer, 579 S.E.2d at 134). “However, an insurance contract which is ‘in any
respect ambiguous or capable of two meanings must be construed in favor of the
insured.’” Id. (quoting Reynolds v. Wabash Life Ins. Co., 161 S.E.2d 168, 169 (S.C.
1968). “The rules of contract construction require exclusionary clauses to be
narrowly interpreted.” Id. at 96 (citing Buddin v. Nationwide Mut. Ins. Co., 157
S.E.2d 633, 635 (S.C. 1967)).
The Policy excludes from its general coverage provisions all injuries “arising
from . . . Assault and/or Battery” committed by third parties, or “the failure to
suppress or prevent” any such “assault and/or battery.” Policy at 48 (emphasis
at 48. Moreover, the Policy has a separate intentional acts exclusion dealing with
“‘bodily injury’ . . . expected or intended from the standpoint of the insured.” Id. at
18. This provision and the case law governing intentional acts exclusions are not
relevant to this action.
added). The A/B Sublimit substitutes reduced coverage limits for all damages
“arising out of [an] Assault and/or Battery.” Id. at 49 (emphasis added). When
“construing an exclusionary clause in a general liability policy, ‘arising out of’ should
be narrowly construed as ‘caused by.’” McPherson By & Through McPherson v.
Michigan Mut. Ins. Co., 426 S.E.2d 770, 771 (S.C. 1993)); see also Coleman v.
Acceptance Indem. Ins. Co., 369 F. App’x 595, 597 (5th Cir. 2010) (finding victim’s
involvement in an altercation “immaterial to the applicability of the [Assault and
Battery] Exclusion, which barred “coverage for ‘any claims arising out of Assault and
Battery or out of any act or omission in connection with the prevention or
suppressions of such acts”) (emphasis in original). Thus, the crucial question in
determining whether the A/B Sublimit applies is whether decedent’s death was
“caused by” an “assault” or “battery.” Importantly, the Policy does not require the
injured party to have been the target of the assault or battery.
Infinger offers two alternative explanations for why decedent’s death was not
“caused by” an assault or battery. ECF No. 20 at 4–5. Infinger first argues that when
Bennett fired the shot that struck decedent, he did not possess the requisite intent to
“assault” or “batter” anyone because he discharged the firearm at random into the air
and the side of the Saloon. ECF No. 8 at 6–7. Alternatively, Infinger argues that
Bennett fired the fatal shot in self-defense, attempting to dissuade an outlaw biker
gang from attacking him en masse. ECF No. 20 at 4. The court addresses each
argument in turn.
Discharging Firearm at Random
Infinger’s first theory relies on his assertion that the Policy’s definition of
“assault” includes an element of intent. Def.’s Mot. 6. Infinger bases this
interpretation on his assertion that intent is a required element of a claim for civil
assault, except where “reasonable fear of bodily harm has been caused by the conduct
of the defendant.” Def.’s Resp. 5 (quoting Herring v. Lawrence Warehouse Co., 72
S.E.2d 453, 458 (S.C. 1952)).
This court has recognized that “there is some support in South Carolina case
law for the proposition that one may commit a civil assault unintentionally.”
Canopius US Ins., Inc. v. Middleton, No. 2:15-cv-3673-DCN, 2016 WL 4379538, at
*7 (D.S.C. Aug. 17, 2016); see also Herring, 72 S.E.2d at 458 (“In civil actions, the
intent, while pertinent and relevant, is not an essential element.”); Mellen v. Lane,
659 S.E.2d 236, 244 (S.C. Ct. App. 2008) (“The elements of assault are: (1) conduct
of the defendant which places the plaintiff, (2) in reasonable fear of bodily harm.”).
Nevertheless, in Middleton, the court rejected an insurer’s attempt to define the term
“assault,” as used in a similar Assault and Battery Exclusion, without reference to the
assailant’s mental state, reasoning that doing so would render the policy’s coverage
illusory. Middleton, 2016 WL 4379538, at *9. However, the court need not decide
whether the reasoning in Middleton extends to this case because, even if one assumes
Bennett was firing at random when he shot decedent, his actions would still possess
the requisite intent to fall within the more restrictive, intent-based definition of
Although Bennett may not have intended to shoot anyone, any reasonable
fact-finder must still conclude that he intended to place someone in “reasonable fear
of bodily harm.” See Mellen v. Lane, 659 S.E.2d at 244 (“The elements of assault
are: (1) conduct of the defendant which places the plaintiff, (2) in reasonable fear of
bodily harm.”). The undisputed facts all indicate that Bennett fired the gun in
reaction to being chased out of the Saloon following an altercation.3 Def.’s Mot. 2
(“An altercation broke out inside the bar, and Bennett was forced to leave. After
Bennett exited the  Saloon and was in the parking lot, [he] discharged a firearm
multiple times.”). Under the circumstances, the only reasonable inference to be
drawn from such behavior is that Bennett intended to intimidate or frighten certain
persons at the Saloon.4 Thus, under Infinger’s first theory, it is clear that Bennett
committed an intentional assault against someone. Because this assault was
intentional, it falls within even the most restrictive interpretation of the word
“assault,” and therefore, the A/B Sublimit applies. It does not matter that the assault
was not intentionally directed at decedent because the A/B Sublimit applies to all
injuries “arising from” or “caused by” an assault, not just injuries to the intended
victim. Policy at 48; see also McPherson By & Through McPherson, 426 S.E.2d at
771 (reading the phrase “arising out of,” as used in an exclusionary clause, to mean
“caused by”). Here, where Bennett unintentionally struck decedent while firing
Infinger does argue that Bennett’s actions constituted “intervening acts”
which broke the causal connection between the initial dispute inside the bar and
decedent’s death. Def.’s Mot. 4. This may be so, but nothing in the record suggests,
and Infinger has not attempted to argue, that Bennett’s actions were motivated by
anything other than the initial dispute.
It is possible that Bennett’s intent was motivated by a desire to dissuade
others from pursuing him. This possibility is discussed in the following section
addressing Infinger’s self-defense argument.
“randomly” at the side of the Saloon, the causal link between the assault and
decedent’s death is immediate and direct. Therefore, the court finds that decedent’s
death “arose from” the assault, within the meaning of the Policy.
In his response to Scottsdale’s motion for summary judgment, Infinger moves
away from his prior contention that Bennett discharged the firearm “randomly,” and
argues instead that Bennett was actually firing in self-defense. Def.’s Resp. 2, 4, 10.
Infinger claims that the initial altercation inside the Saloon involved an outlaw biker
gang known as the “Misguided Brotherhood.” Id. According to Infinger, the entire
episode was triggered by a dispute regarding Bennett’s engagement to one gang
member’s ex-girlfriend. Id. at 2. Infinger also suggests there was some racial
element to the incident, noting that the “Misguided Brotherhood” is an all-white gang,
while Bennett is black. Id. Whatever the cause of the initial altercation, Infinger
claims that the Misguided Brotherhood chased Bennett from the Saloon and pursued
him “with the apparent intention to harm him or worse.” Id. at 10.
Even if Infinger’s version of events were true,5 the court would still be faced
with injuries caused by an assault. The only difference would be that the assault was
committed by the Misguided Brotherhood, not Bennett. If members of the Misguided
Brotherhood did indeed chase Bennett out of the Saloon following the initial
Bennett ultimately pleaded guilty to involuntary manslaughter and
discharging a firearm into a dwelling in connection with the shooting. See ECF No.
25 (order taking judicial notice of Bennett’s guilty pleas). Thus, it seems the State of
South Carolina and Bennett both disagree with Infinger’s version of the events.
However, because the court finds that the A/B Sublimit applies, even if Infinger’s
account is correct, the court finds it unnecessary to determine the effect of Bennett’s
guilty pleas on this litigation.
altercation, then any reasonable fact-finder would be forced to conclude that the
Misguided Brotherhood engaged in conduct with the intent to either harm Bennett, or
place him in reasonable fear of bodily harm. As discussed above, this satisfies even
the narrowest interpretation of “assault” under the A/B Sublimit. See Matter of
McGee, 299 S.E.2d 334, 334 (S.C. 1983) (defining criminal assault and stating that
“if by words and conduct a person intentionally creates a reasonable apprehension of
bodily harm, it is an assault”). This theory also contemplates a direct causal nexus
between the assault and decedent’s death, since actions taken in self-defense are
necessarily prompted by some form of “imminent danger”—here, the impending
attack by the Misguided Brotherhood. See State v. Dickey, 716 S.E.2d 97, 101 (S.C.
2011) (“A person is justified in using deadly force in self-defense when . . . [he]
actually believed he was in imminent danger of losing his life or sustaining serious
bodily injury, or he actually was in such imminent danger . . . .”). Therefore, even if
the court accepts that Bennett was acting in self-defense, damages relating to the
decedent’s death still fall within the scope of the A/B Sublimit.
For the foregoing reasons, the court DENIES Infinger’s motion for summary
judgment and GRANTS Scottsdale’s motion for summary judgment.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
January 6, 2017
Charleston, South Carolina
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