State Farm Fire and Casualty Company v. Mitchell et al
Filing
37
OPINION AND ORDER STAYING CASE pending the resolution of the state court matter between defendant Harry and defendant Mitchell, Motion granted in part on the issue of duty to defend, denied in part as to the question of indemn ification: 22 MOTION for Summary Judgment filed by Christopher Harry, Motion denied 20 MOTION for Summary Judgment filed by State Farm Fire and Casualty Company. Signed by Chief Judge Terry L Wooten on September 30, 2016. (kbos)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
State Farm Fire and Casualty Company,
Plaintiff,
vs.
Travis Cruise Mitchell and
Christopher Harry,
Defendants.
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Case No.: 3:15-1673-TLW
OPINION AND ORDER
The Plaintiff, State Farm Fire and Casualty Company (hereinafter “State Farm” or
“Plaintiff”), filed the above-captioned declaratory judgment action pursuant to the Federal
Declaratory Judgment Act, 28 U.S.C. § 2201, and Fed. R. Civ. P. 57 on April 17, 2015. (Doc.
#1). In this action, Plaintiff State Farm seeks to obtain a determination and declaration by this
Court of the rights and legal obligations of the parties arising out of a Homeowner’s Insurance
Policy issued by Plaintiff State Farm to the parents of Defendant Travis Cruise Mitchell
(hereinafter “Defendant Mitchell”).
(Doc. #1).
This matter is now before the Court for
consideration of cross-motions for summary judgment; Plaintiff State Farm’s Motion for
Summary Judgment (Doc. #20) and Defendant Christopher Harry’s (hereinafter “Defendant
Harry”) Motion for Summary Judgment (Doc. #22). On February 19, 2016, Defendant Mitchell
responded to Defendant Harry’s motion for summary judgment indicating that Defendant
Mitchell is not filing any memorandum in response to the motion. (Doc. #23). On the same day,
Defendant Mitchell filed a Response opposing Plaintiff State Farm’s Motion for Summary
Judgment (Doc. #24), to which Plaintiff replied on February 29, 2016 (Doc. #27).
After full briefing by the parties on these motions, the Court held a hearing on June 29,
2016, wherein counsel for all three parties presented arguments. (Doc. #36). The Court has
carefully considered the arguments, pleadings, motions, memoranda, and exhibits of the parties.
The Motions for Summary Judgment are now ripe for disposition.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are drawn from the parties’ motions, memoranda, and other relevant
filings, as well as the June 29, 2016 hearing and the record in this matter. Generally, this
declaratory judgment action arises out of an altercation between Defendant Mitchell and
Defendant Harry that occurred on October 6, 2012 in Columbia, South Carolina at a University
of South Carolina – University of Georgia football game tailgate in an area that was been jointly
leased by two fraternities. (Doc. #1, Hearing Transcript at p. 3 lns. 1-4). During that altercation,
Defendant Mitchell punched Defendant Harry in the face, allegedly resulting in substantial
damages to Harry. Defendant Mitchell asserts he acted in self-defense. Harry subsequently filed
a lawsuit in South Carolina state court against Defendant Mitchell seeking to recover damages
that Harry asserts he sustained as a result of the altercation. Plaintiff State Farm then filed the
above-captioned matter on April 17, 2015, in which it asks this Court to declare the rights and
legal relations of the parties based on a homeowner’s insurance contract that was issued by
Plaintiff State Farm to Defendant Mitchell’s parents. (Doc. #1).
It is undisputed that Plaintiff State Farm issued a Homeowner’s Insurance Policy to
James C. Mitchell and Kathleen D. Mitchell, the parents of Defendant Travis Mitchell, Policy
Number 40-EJ-7696-9, and that this Policy was in force and effect on October 6, 2012, the date
of the altercation at issue. (See Doc. #1). It is undisputed that Defendant Mitchell qualifies as an
“insured” under the Policy. As noted above, a lawsuit was filed by Defendant Harry against
Defendant Mitchell in the Court of Common Pleas for Richland County, South Carolina, Civil
Action No.: 2014-CP-40-5984, based on the October 6, 2012 incident between Defendant
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Mitchell and Defendant Harry, in which Harry alleges to have sustained serious injuries and
seeks to recover damages against Defendant Mitchell. Plaintiff State Farm is currently defending
Defendant Mitchell in the state court case. (Hearing Transcript at p. 15 lns. 21-25, p. 16 lns. 1-7).
In the instant case, Plaintiff State Farm argues in its motion for summary judgment that
the October 6, 2012 incident is not covered by the Homeowner’s Insurance Policy based on
certain exclusions in Mitchell’s Policy, Homeowner’s Insurance Policy Number 40-EJ-7696-9
(hereinafter the “Policy”). The Policy at issue in this case contains the following relevant
provisions:
SECTION II – LIABILITY COVERAGE
Coverage L – Personal Liability
If a claim is made or a suit is brought against an insured for damages because of
bodily injury or property damage to which this coverage applies; caused by an
occurrence, we will:
1. pay up to our limit of liability for damages for which the insured is legally liable;
and
2. provide a defense at our expense by counsel for our choice . . .
COVERAGE M – MEDICAL PAYMENTS TO OTHERS
We will pay the necessary medical expenses incurred or medically ascertained
within three years from the date of an accident causing bodily injury. Medical
expenses, means reasonable charges for medical, surgical, x-ray, dental,
ambulance, hospital, professional nursing, prosthetic devices and funeral services.
This coverage applies only:
...
2. to a person off the insured location, if the bodily injury:
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b. is caused by the activities of an insured.
SECTION II - EXCLUSIONS
1. Coverage L and Coverage M do not apply to:
a. bodily injury or property damage:
(1) which is either expected or intended by the insured; or
(2) which is the result of the willful and malicious acts of the insured;
In addition to the provisions listed above, the following definitions of terms
appear in the policy:
1. “bodily injury” means physical injury, sickness or disease to a person. This
includes required care, loss of services and a death resulting therefrom.
Bodily injury does not include . . .
c.
emotional distress, mental anguish, humiliation, mental distress, mental
injury or similar injury unless it arises out of actual injury to some person.
4. “insured” means you and, if residents of your household:
a. your relatives . . .
7. “occurrence” when used in Section II of this policy, means an accident,
including exposure to conditions, which results in :
a. bodily injury; or
b. property damage;
during the policy period . . . .
The term “accident” is not defined in the Policy.
Plaintiff State Farm initiated the instant declaratory judgment action in this Court, and
moved for summary judgment arguing that it has no duty to defend Defendant Mitchell and no
duty to indemnify for any potential future award against Defendant Mitchell in connection with
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the underlying state court lawsuit arising out of the October 6, 2012 altercation between
Defendant Mitchell and Defendant Harry.
LEGAL STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56(a), a party is entitled to summary
judgment if the pleadings, responses to discovery, and the record reveal “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). A genuine issue of material fact exists “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
The party seeking summary judgment bears the initial responsibility of
informing the court of the basis for its motion. See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986).
This burden requires the movant to identify those portions of the “pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any,” which it believes demonstrate the absence of any genuine issues of fact. Celotex, 477 U.S.
at 323; see also Anderson, 477 U.S. at 249.
Though the moving party bears the initial burden, the nonmoving party must then
produce specific facts showing that there is a genuine issue for trial. See Celotex, 477 U.S. at
334. In satisfying this responsibility, the nonmoving party must offer more than a mere “scintilla
of evidence” that a genuine issue of material fact exists, Anderson, 477 U.S. at 252, or that there
is “some metaphysical doubt” as to material facts. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Rather, the nonmoving party must produce evidence on which
a jury could reasonably find in its favor. See Anderson, 477 U.S. at 252.
In considering the motion for summary judgment, this Court must construe all facts and
reasonable inferences in the light most favorable to the nonmoving party. See Miltier v. Beorn,
896 F.2d 848 (4th Cir. 1990). Summary judgment is proper “[w]here the record taken as a whole
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could not lead a rational trier of fact to find for the nonmoving party, there [being] no genuine
issue for trial.” Matsushita, 475 U.S. at 587 (1986) (internal quotations omitted).
Summary judgment should only be granted in those cases in which there is no issue of
material fact involved and inquiry into the facts is not necessary to clarify application of the law.
McKinney v. Bd. of Trustees Mayland Cmty. Coll., 955 F.2d 924 (4th Cir. 1992). A district
court should not grant summary judgment “unless the entire record shows a right to judgment
with such clarity as to leave no room for controversy and establishes affirmatively that the
adverse party cannot prevail under the circumstances.” Campbell v. Hewitt, Coleman & Assocs.,
21 F.3d 52, 55 (4th Cir. 1994).
The Court has subject matter jurisdiction in the instant declaratory judgment action
pursuant to 28 U.S.C. § 1332(a), diversity jurisdiction. The parties agree that South Carolina law
governs this case; therefore, the Court will apply South Carolina law.
DISCUSSION
A. DUTY TO DEFEND
Under South Carolina law, “[q]uestions of coverage and the duty of a liability insurance
company to defend a claim brought against its insured are determined by the allegations of the
complaint.”
City of Hartsville v. S. Carolina Mun. Ins. & Risk Fin. Fund, 382 S.C. 535, 543
(2009) (citing C.D. Walters Const. Co. v. Fireman’s Ins. Co. of Newark, New Jersey, 281 S.C.
593, 594 (Ct. App. 1984)). If the “underlying complaint creates a possibility of coverage under
an insurance policy, the insurer is obligated to defend” its insured. Id. at 544 (citing GordonGallup Realtors, Inc. v. Cincinnati Ins. Co., 274 S.C. 468 (1980)). Moreover, “[a]lthough a
determination of an insurer’s duty to defend is dependent upon the complaint, an analysis of this
duty involves the allegations of the complaint and not the specifically identified causes of
action.” Id. at 544–45. “An insurer’s duty to defend may arise from facts outside of the
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complaint that are known to the insurer.” Id. at 545.
Although reviewing courts must give policy language its plain, ordinary, and popular
meaning, the terms of an insurance policy must be construed most liberally in favor of the
insured. M & M Corp., 390 S.C. at 259; B.L.G. Enter., Inc. v. First Fin. Ins. Co., 334 S.C. 529,
535 (1999); Rhame v. Nat’l Grange Mut. Ins. Co., 238 S.C. 539, 544 (1961). Where the words of
a policy are ambiguous, or where they are capable of two reasonable interpretations, that
construction will be adopted which is most favorable to the insured. M & M Corp. at 259.
It is the insured’s burden to establish that a claim falls within the coverage of an
insurance contract. Jensen v. Selective Ins. Co. of Se., No. 4:12–cv–02133–RBH, 2013 WL
3148341, at *2 (D.S.C. June 19, 2013) (citing Gamble v. Travelers Ins. Co., 251 S.C. 98, 102
(1968)). Alternatively, the insurer shoulders the burden of establishing the exclusions to
coverage and the exclusion is construed “most strongly” against the insurer. Id. (citing Boggs v.
Aetna Cas. & Sur. Co., 272 S.C. 460, 252 S.E.2d 565, 568 (1979)). However, an insured party
bears the burden of proving an exception to an exclusion. Ross Development Corp. v. PCS
Nitrogen Inc., Nos. 12–2059, 12–2454, 2013 WL 2440844, at *3 (4th Cir. June 6, 2013) (citing
Helena Chem. Co. v. Allianz Underwriters Ins. Co., 357 S.C. 631, 636, 594 S.E.2d 455, 460 n.5
(2004)).
“Although a determination of an insurer’s duty to defend is dependent upon the
complaint, an analysis of this duty involves the allegations of the complaint and not the
specifically identified causes of action. Moreover, an insurer’s duty to defend may arise from
facts outside of the complaint that are known to the insurer.” City of Hartsville v. S. Carolina
Mun. Ins. & Risk Fin. Fund, 382 S.C. 535, 543, 544–45 (2009).
Plaintiff State Farm is currently defending the insured, Defendant Mitchell, in the
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underlying state court action filed by Defendant Harry.1 As Mitchell asserts he was acting in
self-defense, and for the reasons explained in more detail below, the Court concludes that the
allegations in the underlying state court pleadings and filings, along with the facts known to the
insurer, create a possibility of coverage under the Policy in the state court proceeding. See, e.g.,
Prior v. S.C. Med. Malpractice Liab. Ins. Joint Underwriting Ass’n, 305 S.C. 247, 249 (Ct. App.
1991) (discussing an insurer’s duty to defend and stating “[i]n examining the complaint, we must
look beyond the labels describing the acts, to the acts themselves which form the basis of the
claim against the insurer”).
Thus, Plaintiff State Farm has a duty to defend Defendant Mitchell, the insured, in the
underlying state court action, Civil Action No.: 2014-CP-40-5984, filed against him by
Defendant Harry. Accordingly, Plaintiff State Farm’s motion for summary judgment is denied to
the extent it seeks judgment on the issue of duty to defend. (Doc. #20). Defendant Harry’s
motion for summary judgment is granted to the extent it seeks judgment on the issue of State
Farm’s duty to defend Defendant Mitchell in the state court case. (Doc. #22).
B. DUTY TO INDEMNIFY
In South Carolina, an “insurer’s duty to defend is separate and distinct from its obligation
to pay a judgment rendered against an insured.” City of Hartsville, 382 S.C. 535 at 544 (citing
Sloan Const. Co. v. Cent. Nat. Ins. Co. of Omaha, 269 S.C. 183, 186 (1977)). “Indemnity
contemplates merely the payment of money.
The agreement to defend contemplates the
rendering of services,” and can be triggered absent an ultimate finding of liability. City of
Hartsville, 382 S.C. at 544 (citing Sloan Const. Co., 269 S.C. at 187–88). As noted above, the
Court finds the allegations in the state court pleadings and other information known to Plaintiff
State Farm about the October 6, 2012 incident create at least the possibility for coverage under
1
As noted, Harry is the Plaintiff in the underlying state case.
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the Policy sufficient to trigger Plaintiff State Farm’s duty to defend Defendant Mitchell in the
state court proceeding filed against Defendant Mitchell by Defendant Harry.
Plaintiff State Farm argues that it has no duty to Defendant Mitchell in connection with
the underlying state court action arising out of the October 6, 2012 altercation because the
“intentional act” exclusion applies to exclude or otherwise bar coverage under the Policy. This
Court concludes otherwise. On the record before it, the Court does not conclude that Plaintiff
State Farm has satisfied the summary judgment standard on its claim for declaratory relief,
which seeks a declaration as a matter of law that Plaintiff has no duty to defend Defendant
Mitchell and no duty to indemnify under the Policy because there is no possibility of coverage.
As discussed below, this Court finds that a genuine issue of material fact exists as to whether
Defendant Mitchell’s conduct is an “intentional act” within the meaning of the Policy exclusion
based on conflicting factual accounts and Defendant Mitchell’s assertion that he acted in selfdefense during the encounter between Defendant Mitchell and Defendant Harry.
Intentional Act Exclusion – South Carolina Law
In the context of insurance coverage cases, the South Carolina Supreme Court in
Singleton enunciated a two-prong analysis courts employ to determine the validity and
applicability of an “intentional act” exclusion to a homeowner’s insurance policy: first, the act
causing the loss must be intentional; and 2) the results of the act must be intentional. Vermont
Mut. Ins. Co. v. Singleton By & Through Singleton, 615 S.C. 5, 8 (1994). The facts in Singleton
are similar to those in the instant case. In that case, two male high school students got into a fist
fight stemming from an argument over a fellow female student. In considering whether an
intentional act exclusion applied to bar coverage under a homeowner’s insurance policy for the
damages endured by one of the students, the South Carolina Supreme Court held that
“intentional act” required the showing of two prongs: (1) the first intentional act prong requires
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“that the insured actually intended to strike the other party”; and (2) the second requires the
intentional act must have been done “for an intentional result.” Singleton, 446 S.E.2d 417, 420
(1994).
First, all parties agree that the first prong of the “intentional act” analysis under Singleton
is satisfied on the facts of this case. Accordingly, the analysis of the applicability of the
exclusion herein focuses on whether the second prong has been sufficiently shown—whether the
intentional act was done “for an intentional” and expected result. See, e.g., Singleton, 446
S.E.2d at 420. As counsel for Plaintiff State Farm noted in the June 26, 2016 hearing, “factually,
there are two separate versions of what occurred” between Defendant Mitchell and Defendant
Harry on October 6, 2012. (Transcript at 2, lns. 21-23).
In the instant case, Defendant Harry and Defendant Mitchell argue that Plaintiff State
Farm’s motion for summary judgment should be denied because there is the possibility of
coverage under the Policy.
Defendants argue that a jury could reasonably conclude that
Defendant Mitchell’s actions do not fall within the “intentional act” exclusion in the Policy
because the second prong of the intentionality analysis is not satisfied based on Mitchell’s
assertion that he was acting in self-defense and did not intend the result when he struck
Defendant Harry. This Court agrees. The South Carolina Supreme Court has held that, in the
context of an intentional act exclusion, “[t]he claim of self-defense raises the question of whether
the intentional act was done for an intentional result which is the second prong of the Miller
analysis.” Id.
The Singleton case offers guidance in analyzing whether the second element of the
intentional act exclusion had been satisfied when self-defense has been asserted:
This claim of self-defense raises the question of whether the intentional act was
done for an intentional result which is the second prong of the Miller analysis.
The present record supports the finding that insured Webb was reacting to [third
party] Singleton when [insured] Webb struck Singleton in the face. The record
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also contains evidence that Singleton participated in some sort of provocation.
Whether this provocation reasonably justified Webb’s actions is a question which
is inherent in any self-defense claim. The Respondents argue that [insured] Webb
did not specifically intend to strike Singleton in the face or that Webb intended or
expected that Singleton would have suffered the extensive eye injuries. Moreover,
because self-defense was arguably present, the referee found that [insured] Webb
only intended to protect himself, not inflict a specific injury on Singleton. See
Breland v. Schilling, 550 So.2d 609 (La. 1989); Preferred Mut. Ins. Co. v.
Thompson, 491 N.E.2d 688 (Ohio 1986); Allstate Ins. Co. v. Novak, 313 N.W.2d
636 (Neb. 1981). Because the evidence in the record supports the referee’s finding
that Webb did not intend a specific result, we see no reason to disturb the
referee’s decision.
Vermont Mut. Ins. Co. v. Singleton By & Through Singleton, 446 S.E.2d 417, 420–21 (1994)
(footnote omitted).
In this case, for the reasons discussed herein, the Court concludes that there are genuine
issues of material fact in dispute which preclude summary judgment on the indemnity issue.
Self-Defense – South Carolina Law
Under South Carolina law, the “law of self-defense is based upon the necessity to strike
in order to save one’s self from serious bodily harm, or losing his own life.” State v. Burnett, 42
S.E.2d 710, 711 (S.C. 1947). “[W]hile it is well-settled that mere words, however, ‘abusive,
insulting, vexatious or threatening,’ will not in themselves justify the use of a deadly weapon,
such words if ‘accompanied by an actual offer of physical violence’ reasonably warranting fear
of serious bodily harm, may be an integral part of a plea of self-defense against liability for an
assault and battery.” Silas v. Bowen, 277 F. Supp. 314, 318 (D.S.C. 1967) (quoting City of
Gaffney v. Putnam, 15 S.E.2d 130, 135 (1941)). “Moreover, in determining whether there was a
reasonable cause for the apprehension of serious bodily harm, the difference in age, size, and
relative physical strength of the parties to the controversy is a proper matter for consideration.”
Id. (citing State v. Self, 82 S.E.2d 63, 67 (S.C. 1954)).
“To establish self-defense in South Carolina, four elements must be present: (1) the
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defendant must be without fault in bringing on the difficulty; (2) the defendant must have been in
actual imminent danger of losing his life or sustaining serious bodily injury, or he must have
actually believed he was in imminent danger of losing his life or sustaining serious bodily injury;
(3) if his defense is based upon his belief of imminent danger, the defendant must show that a
reasonably prudent person of ordinary firmness and courage would have entertained the belief
that he was actually in imminent danger and that the circumstances were such as would warrant a
person of ordinary prudence, firmness, and courage to strike the fatal blow in order to save
himself from serious bodily harm or the loss of his life; and (4) the defendant had no other
probable means of avoiding the danger.” State v. Light, 378 S.C. 641, 649-50, 664 S.E.2d 465,
469 (2008) (citing State v. Slater, 373 S.C. 66, 644 S.E.2d 50 (2007)).
“If there is any evidence in the record from which it could reasonably be inferred that the
defendant acted in self-defense, the defendant is entitled to instructions on the defense, and the
trial judge’s refusal to do so is reversible error.” Id. (citing Slater, 644 S.E.2d at 50).
Legal Analysis
Defendant Mitchell asserts that he initially approached Defendant Harry in an attempt to
calm Defendant Harry down. (Depo Mitchell at p. 8 lns. 22-25, lns. 8-25; Doc. #20-7 at 2).
Defendant Mitchell stated in his deposition that he did not approach Defendant Harry for the
purpose of fighting, and when he did hit Harry, did not intend to inflict any specific injury or
harm on Defendant Harry when he struck him in the face. (Doc. #22-2). Defendant Mitchell
argues that the intentional act exclusion should not apply in this case because Mitchell acted in
self-defense during the altercation, and punched Defendant Harry in the nose to protect himself
because he felt threatened by Defendant Harry drawing his fist back in a gesture to strike
Mitchell first. (Depo. Mitchell 44:23-45:2; Doc. #22-2 at 11-12). While these facts are disputed
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by Defendant Harry, the deposition testimony reflects that Defendant Mitchell stated he believed
that Defendant Harry would have struck the first blow if Mitchell did not act first. (Doc. #22-2
at 11). Defendant Mitchell further argues that he was under no obligation to avoid walking by
Defendant Harry in the parking lot tailgate area, and instead asserts that he did nothing wrong,
although, as asserted by Defendants it was perhaps not the best use of judgment, when he
approached Defendant Harry with the intention of calming Harry down.2 (Depo Mitchell at p. 8
lns. 23-25; Doc. #20-7 at 3). According to deposition testimony, only after Defendant Mitchell
initially approached Harry did Mitchell sense he was in danger because, according to Mitchell,
Harry then moved and had “his [Harry’s] arm cocked back in a fashion that he was about to hit
me [Mitchell],” and Mitchell “struck him first in an effort to defend [himself].” (Depo Mitchell
at p. 8 lns. 22-25, at p. 9 lns. 1-3; Doc. #20-7 at 2-3).
Further, Defendant Mitchell testified during his deposition that after approaching Harry
“in an effort to calm him down” he “then realized that he was a good deal bigger than me, and I
felt threatened.” (Depo Mitchell at p. 8 lns. 22-25– Doc. #20-7 at 2). Defendants argue that the
large size disparity between Defendant Harry and Defendant Mitchell is a factor to be considered
in determining whether Mitchell acted in self-defense.3 As noted, under South Carolina law, “in
determining whether there was a reasonable cause for the apprehension of serious bodily harm,
the difference in age, size, and relative physical strength of the parties to the controversy is a
proper matter for consideration.” Silas, 277 F. Supp. at 318 (D.S.C. 1967) (citing Self, 82 S.E.2d
at 67). Defendant Mitchell asserts that a jury could reasonably infer that Defendant Mitchell did
2
Deposition testimony of Mitchell: “Q: You [Mitchell] didn’t approach [Harry] intending to hit him? A:
No, sir. Q: You [Mitchell] didn’t approach [Harry] intending to cause him any sort of injury? A: No,
sir.” (Depo. Mitchell at 44 lns. 23-25, at 45 lns. 1-2; Doc. #20-7 at 11-12).
3
Defendant Mitchell testified in his deposition that Defendant Harry is approximately “a good bit bigger”
than Mitchell and is “definitely a few inches taller” and “a bit bulkier.” (Depo. Mitchell at p. 33 lns. 19-
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feel threatened by Harry’s alleged significantly larger stature and size, quick approach, drawing
back of his fist, and loud or rowdy demeanor.4 In addition, deposition testimony of Defendant
Mitchell reflects that Mitchell “didn’t intend to hit [Harry] as hard as [Mitchell] could . . . But hit
him hard enough to protect [him]self.” (Depo. Mitchell at p. 32 lns. 9-12; Doc. #20-7 at 31).5
On the other hand, Plaintiff State Farm argues that even under Defendant Mitchell’s
version of the facts, there is no possibility of coverage under the Policy because Defendant
Mitchell does not satisfy the requirement of self-defense under the law of South Carolina—that
the person invoking self-defense “had no other probable means of avoiding the danger,” State v.
Light, 378 S.C. 641, 649-50, 664 S.E.2d 465, 469 (2008), or that the person was “without fault in
bringing on the alleged immediate encounter.” State v. Burnett, 210 S.C. 348, 352, 42 S.E.2d
710, 711 (1947). In other words, Plaintiff argues that there is no factual dispute regarding selfdefense in this case because Defendant Mitchell first approached Defendant Harry and initiated
the contact or confrontation, and thus Mitchell is not entitled to assert self-defense. This Court
does not find that position persuasive.
After careful consideration, there is a clear question of fact as to whether Defendant
Mitchell acted in self-defense, precluding summary judgment on the indemnification issue.
24, at 34 ln. 1; Doc. #20-7 at 9). Defendant Mitchell testified that he is approximately 5’7” tall and
weighed 180-190 pounds at the time of the altercation. (Depo. Mitchell at 28; Doc. #20-7 at 7).
4
Deposition testimony of Defendant Mitchell reflects Mitchell’s version of the facts: “So the game was at
seven. So the incident occurred . . . towards the end of the game or right after the game was over. Either
way, it was clear that Carolina was going to win, and I left the tailgating area where I was, by the tent, to
use the restroom in the Porta-John. And after leaving the Porta-John, I heard people shouting, turned, and
then I heard Mr. Harry say . . . the next fucking Carolina person I see I’m going to hit in the face.” (Depo
Mitchell at p. 8 lns. 13-23; Doc. #20-7 at 2).
5
Deposition testimony of Defendant Mitchell provides, in relevant part: “Q: What were you trying to do
at the time that you hit him [Harry]? A: Trying to prevent him [Harry] from punching me first. Q: Okay.
And what did you expect to happen to him when you did punch him? A: Hopefully put me [Mitchell] in a
position where I couldn’t get punched.” (Depo. Mitchell at p. 31 lns. 5-11; Doc. #20-7 at 8). Further, “Q:
When you [Mitchell] threw the punch, did it occur to you that you were going to hit him [Harry] hard
enough that it might hurt him? A: I [Mitchell] wasn’t thinking about that at the time. I was just thinking
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Plaintiff State Farm’s argument that Defendant Mitchell initiated the encounter by walking over
to Defendant Harry is unavailing. There is testimony in the record that Defendant Mitchell
approached Defendant Harry only to “calm him down” and had no intention of starting a fight or
specific result. The record suggests that one version of the facts would show that only after
Defendant Mitchell said a few words to Defendant Harry, did Defendant Harry draw back his
arm in what could be perceived as a motion to strike. (Depo. Mitchell at p. 20 lns. 14-16, lns.
23-24; Doc. #20-7 at 5) (“[Harry] pretty much immediately pulled his arm back. . . . He pulled it
back in a swift motion as if he was going to throw a punch.”)
Plaintiff cites to Bankers Ins. Co. v. Coker, No. CA2:09-1292-MBS, 2010 WL 2228367
(D.S.C. May 28, 2010), to support its argument that there is no evidence of self-defense in the
instant case. Coker was a federal declaratory judgment action brought by an insurance company
seeking a declaration that the injuries sustained by a third party, Coker, were not covered by the
homeowner’s insurance policy issued to its insured, Ward, who punched Coker in the face, based
on an “intentional act” exclusion. The Court concludes that Coker is distinguishable from the
instant case. In Coker, the court held that there was no factual dispute regarding whether the
third party Coker made “any threatening gestures toward [the insured] Ward [or] raised his fists
toward Ward.” Id. at *1-2 (“[Insured] Ward admitted that Coker was not carrying any weapons,
made no verbal threats, made no threatening or obscene gestures toward Ward, and that they had
not had physical altercations in the past. In the court’s view, no reasonable jury would find that
Ward was in actual imminent danger or actually believed he was in imminent danger of losing
his life or sustaining serious bodily injury.”). Unlike Coker, in the instant case, there is a factual
dispute as to whether Defendant Harry could have drawn back his fist and whether Defendant
about what I could do to protect myself. Q: Okay. You didn’t feel that you needed to strike him more
than once? A: No, sir.” (Depo. Mitchell at p. 34 lns. 8-15; Doc. #20-7 at 9).
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Mitchell was acting in self-defense.
In short, the allegations in the Complaint as well as the additional information known to
Plaintiff State Farm through deposition testimony, this Court finds that a reasonable jury could
conclude that Defendant Mitchell acted in self-defense. If Defendant Mitchell acted in selfdefense, the intentional act exclusion does not apply because the second prong of intentionality
as set forth in Singleton is not satisfied. See Singleton, 446 S.E.2d at 420. Accordingly, a
possibility of coverage under the Policy exists sufficient to trigger Plaintiff State Farm’s duty to
defend under the Policy.
CONCLUSION
The Court concludes that the allegations in the state court action reflect a possibility of
coverage under the Policy in connection with the October 6, 2012 altercation between Defendant
Mitchell and Defendant Harry. Consequently, Plaintiff State Farm has a duty to defend the
underlying state court case that has been filed by Harry against Defendant Mitchell.
Accordingly, as to the duty to defend issue, Plaintiff State Farm’s motion for summary judgment,
(Doc. #20), is denied and Defendant Harry’s motion for summary judgment is granted in part,
(Doc. #22).
However, the next question, whether Plaintiff State Farm might ultimately have a duty to
indemnify the Defendants for any potential monetary award in connection with the 2012
incident, will be stayed pending further proceedings and potential resolution of this matter by the
pending state court case, Civil Action No.: 2014-CP-40-5984. During the June 29, 2016 hearing,
counsel for Defendant Mitchell and counsel for Defendant Harry orally moved to stay this action
pending resolution of the underlying state court case in the event the instant motions for
summary judgment are denied. The trial of the case there first may resolve the issues pending
16
before this Court. In light of the Court’s denial of the cross-motions for Summary Judgment on
the indemnification and liability issue, the Court GRANTS the oral motions to stay.6
Accordingly, Plaintiff State Farm’s motion for summary judgment (Doc. #20) and
Defendant Harry’s motion for summary judgment (Doc. #22) are both denied as to the question
of indemnification. Defendant Harry’s motion for summary judgment (Doc. #22) is granted in
part, on the issue of duty to defend. The above-captioned case is stayed pending the resolution
of the state court matter between Defendant Harry and Defendant Mitchell.
IT IS SO ORDERED.
s/ Terry L. Wooten
TERRY L. WOOTEN
Chief United States District Judge
September 30, 2016
Columbia, South Carolina
6
At the June 29, 2016, Plaintiff’s counsel stated and counsel for all parties agreed that due to potential
preclusion issues, if this Court denies summary judgment in the instant case, the parties would favor
proceeding with the underlying state court action, and that the instant federal action be stayed. See e.g.,
Pye v. Aycock, 325 S.C. 426 (1997) (holding that res judicata and collateral estoppel barred defendant
from relitigating the issue of liability in a state court case where a prior federal declaratory judgment
action found in favor of his homeowner’s insurer on the issue of coverage in a negligence and intentional
tort action filed in connection with an incident in which the insured struck a third party in the face with a
metal pipe).
In this case, counsel for both Defendants stated that they would not oppose intervention by
Plaintiff State Farm in the underlying state court action and, in addition, would request a special verdict
form with a special interrogatory in which a jury would explicitly decide whether Defendant Mitchell
acted in self-defense when he struck Defendant Harry. That determination may be decisive on the issue
of coverage under the Policy. Counsel for Plaintiff State Farm represented that he would advise and
recommend Plaintiff State Farm to also request the special jury verdict form in the state court action.
17
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