Catlin Speciality Insurance Company v. Lowcountry Oysters of Murrells Inlet LLC et al
ORDER AND OPINION granting 16 Motion for Judgment on the Pleadings. The Court GRANTS Plaintiff's motion for judgment on the pleadings (Dkt. No. 16) and DECLARES that under the assault and battery endorsement of commerc ial general liability policy 3900101189, in effect from September 27, 2013 through September 27, 2014, Plaintiff Catlin Specialty Insurance Company is not obligated to defend or to indemnify Defendant Lowcountry Oysters of Murrells Inlet, LLC, Lowcou ntry Oysters, LLC, and Leslye Beaver with respect to the claims in Daniel Smith v. The Original Beaver Bar d/b/a The Beaver Bar, The Beaver Bar at The County Line d/b/a Big Beaver Bar, Foods of Myrtle Beach,Inc. and Les/ye Beaver, Civil Action No. 16-CP-22-01051 (S.C.C.C.P. (Georgetown County)). AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 1/11/2018.(sshe, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Catlin Specialty Insurance Group,
Lowcountry Oysters of Murrells Inlet,
LLC, Lowcountry Oysters, LLC, Leslye
Beaver, and Daniel Smith,
Civil Action No. 2:17-1528-RMG
ORDER AND OPINION
This matter is before the Court on Plaintiff Catlin Specialty Insurance Group's unopposed
motion for judgment on the pleadings. For the reasons set forth below, the Court grants the motion.
"After the pleadings are closed-but early enough not to delay trial-a party may move
for judgment on the pleadings." Fed. R. Civ. P. 12(c). Rule 12(c) motions "dispose of cases in
which there is no substantive dispute that warrants the litigants and the court proceeding further."
Lewis v. Excel Mech., LLC, 2:13-CV-281-PMD, 2013 WL 4585873 at* 1 (D.S.C. Aug. 28, 2013)
(quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 1368 (3d
ed. 2010)). A judgment on the pleadings is only warranted if "the moving party has clearly
established that no material issue of fact remains to be resolved and the party is entitled to judgment
as a matter of law." Id. at* 2 (quoting Park Univ. Enters. v. Am. Cas. Co., 442 F.3d 1239, 1244
(10th Cir. 2006)).
Rule 12(c) motions limit the court's review to the pleadings, Abell Co. v. Balt.
Typographical Union No. 12, 338 F.2d 190, 193 (4th Cir. 1964), and "any documents and exhibits
attached to and incorporated into the pleadings," Lewis, 2013 WL 4585873 at* 1 (citing Eagle
Nation, Inc. v. Mkt. Force, Inc., 180 F. Supp. 2d 752, 754 (E.D.N.C. 2001)). Like motions filed
under Rule 12(b)( 6), motions pursuant to Rule 12(c) call for the pleadings to be construed in the
light most favorable to the non-moving party. Burbach Broad. Co. v. Elkins Radio Corp. , 278
F.3d 401 , 405-06 (4th Cir. 2002). Accordingly, "[t]he court must accept all well pleaded factual
allegations in the non-moving party's pleadings as true and reject all contravening assertions in the
moving party's pleadings as false." Lewis, 2013 WL 4585873, at* 2 (quoting John S. Clark Co.,
Inc. v. United Nat 'l Ins. Co., 304 F. Supp. 2d 758, 763 (M.D.N.C. 2004)).
Defendant Daniel Smith alleges that on December 31, 2013 he was a patron at the Big
Beaver Bar in Murrells Inlet, South Carolina when "the Defendants' employees and/or patrons
grabbed [him] and proceeded to physically injure [him]." (Dkt. Nos. 7 ~ 11,
8 ~ 6.)
The defendants Mr. Smith refers to are the two LLCs that own and operate Big Beaver Bar and
Leslye Beaver, the manager of both LLCs. In the underlying lawsuit, Mr. Smith asserts claims of
negligence, negligent misrepresentation, negligent hiring, negligent supervision, negligent
retention, and violation of the South Carolina Unfair Trade Practices Act against those defendants.
Plaintiff Catlin Insurance issued commercial general liability policy number 3900101189
to the LLCs for a period that includes December 31 , 2013.
That policy has an
"Assault and Battery Exclusion" that provides:
this policy does not apply to "bodily injury", "personal injury" or "property
damage" arising out of an assault and battery or out of any act or omission in
connection with the prevention or suppression of such acts, including the failure to
warn, train or supervise, whether caused by or at the instigation or direction of the
Insured, his employees, patrons or any other person.
(Dkt. No. 7-2.) In the present action, Catlin seeks a declaration that it has no duty to defend or
indemnify the LLCs or Ms. Beaver (hereinafter, the "Underlying Defendants") because the Assault
and Battery Exclusion applies and excludes Mr. Smith's claims from coverage.
Defendants do not deny that the policy contains the Assault and Battery Exclusion. (See
Dkt. Nos. 8 ~ 8 (Underlying Defendants' answer to the complaint), 25
7 (Mr. Smith's answer to
the complaint).) Further, the Underlying Defendants admit the allegations contained in paragraphs
19-20 and 23-25 of the complaint. (Dkt. Nos. 8
6, 7, 9; 25
5, 6, 8.) Paragraph 25 of the
complaint alleges, "all of the Claimant' s injuries arose out of an assault and battery-being
'grabbed' and 'physically injured'-or out of some action or omission in connection with the
prevention, suppression or failure to protect or suppress an assault and battery." (Dkt. No. 1 ~ 25.)
Defendants deny paragraph 26 of the complaint, which states, "Accordingly, the
Claimant's injuries fall within the scope of the assault and battery exclusion," but that is a legal
conclusion, not a factual allegation to admit or deny. Defendants have admitted all the factual
allegations supporting that legal conclusion. 1 Moreover, Defendants have not opposed Plaintiffs
motion for judgment on that legal conclusion. (See Dkt. No. 27 (joint status report reporting that
no Defendant intends to make any further filing in this action).) The Court therefore deems it
admitted that the Assault and Battery Exclusion applies to Mr. Smith's claims against the
Underlying Defendants. Accordingly, the Court grants Plaintiffs motion for judgment on the
For the foregoing reasons, the Court GRANTS Plaintiffs motion for judgment on the
pleadings (Dkt. No. 16) and DECLARES that under the assault and battery endorsement of
commercial general liability policy 3900101189, in effect from September 27, 2013 through
Mr. Smith asserts that that his injuries also arose from the failure to warn him of the danger of an
assault and battery, but that assertion is immaterial because the Assault and Battery Exclusion
explicitly applies to acts "including the failure to warn." Further, Mr. Smith admits that an assault
and battery actually caused his injuries.
September 27, 2014, Plaintiff Catlin Specialty Insurance Company is not obligated to defend or to
indemnify Defendant Lowcountry Oysters of Murrells Inlet, LLC, Lowcountry Oysters, LLC, and
Leslye Beaver with respect to the claims in Daniel Smith v. The Original Beaver Bar d/b/a The
Beaver Bar, The Beaver Bar at The County Line d/b/a Big Beaver Bar, Foods of Myrtle Beach,
Inc. and Les/ye Beaver, Civil Action No. 16-CP-22-01051 (S.C.C.C.P. (Georgetown County)).
AND IT IS SO ORDERED.
District Court Judge
Charleston, South Carolina
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