State Farm Fire and Casualty Company et al v. Admiral Insurance Company

Filing 56

ORDER: The Court GRANTS Admiral's motion for summary judgment (Dkt. No. 50 ) and DENIES State Farm's motion for summary judgment (Dkt. No. 52 ). Signed by the Honorable Richard M. Gergel on 1/25/2017. (hcic, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

FLORENCE DIVISION

State Farm Fire and Casualty Company and)
Maurice Lavon Robinson,
)

Civil Action No. 4:15-2745-RMG

)

Plaintiffs,

)
)

v.

ORDER AND OPINION

)
)

Admiral Insurance Company,

)
)

Defendant.

)

This matter is before the Court on Defendant Admiral Insurance Company's motion for
summary judgment (Dkt. No. 50) and Plaintiff State Farm Fire and Casualty Company's motion
for summary judgment (Dkt. No. 52). For the reasons set forth below, the Court grants Admiral's
motion for summary judgment and denies State Farm's motion for summary judgment.
I.

Background

Plaintiff State Farm, which provided homeowner's liability coverage to Plaintiff Maurice
Robinson, alleges Defendant Admiral had a duty to defend and to indemnifY Mr. Robinson in an
underlying tort action arising from fraternity hazing that Mr. Robinson hosted at his home. On
October 22-23, 2011, Daniel McElveen was a pledge for the Pi Chi Chapter (Francis Marion
Chapter) of Phi Beta Sigma Fraternity International, Inc. l That evening, Daniel McElveen and
two other pledges went to the home of Mr. Robinson, vice president ofthe local alumni chapter of
the fraternity, in Florence, South Carolina, where fraternity members gathered. At Mr. Robinson's
home, Mr. McElveen and the two other pledges were subjected to several forms of hazing

1 Factual statements are taken from the parties' stipulation of facts (Dkt. No. 48) unless another
citation is provided.

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including paddling that caused Mr. McElveen to suffer kidney damage and renal failure. He
ultimately made a full recovery. Mr. Robinson denies that he paddled Mr. McElveen, but he
otherwise admits that he participated in the hazing hosted at his home that night. (See Dkt. No.
55-1 at 6-8.) Mr. McElveen testified at trial that Mr. Robinson was "in charge" of the hazing.
(Dkt. No. 50-4.)
On January 15, 2013, Mr. McElveen filed suit in the South Carolina Court of Common
Pleas, Florence County against Phi Beta Sigma, Pi Chi, Jimmy Hammock (Pi Chi Chapter
president), Francis Marion University, and Mr. Robinson. State Farm defended Mr. Robinson
under his homeowner's policy, which had a $300,000 limit. Admiral defended Phi Beta Sigma,
Pi Chi, and Mr. Hammock under a general commercial liability policy, number CA000002580-08,
which had limits of$1 million per occurrence and $2 million in aggregate. (Dkt. No. 50-3.) Mr.
Robinson tendered his defense to Admiral, but Admiral declined to accept it. The Admiral policy
contained a hazing exclusion for bodily injury arising out of hazing, applicable to covered persons
who participate in or direct others to participate in hazing. (ld.)
Admiral settled claims against Phi Beta Sigma, Pi Chi, and Mr. Hammock for $500,000.
State Farm offered a $50,000 settlement, refused a $300,000 settlement offer, and the case
proceeded to trial solely against Mr. Robinson. (See Dkt. No. 44 at 9 (referring to Bates State
Farm 965).) State Farm provided a letter dated March 28,2014 to Mr. Robinson assuring him that

it would pay any excess verdict. (Id.) On April 3, 2014,2 the jury awarded Mr. McElveen a
judgment against Robinson of $600,000 actual damages and $1,000,000 punitive damages. The
jury attributed 99% fault against Mr. Robinson and 1% against Mr. McElveen. The jury also found

2

The parties' stipulation erroneously states April 3, 2013.

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that Maurice Robinson's actions or omissions on October 22-23, 2011 were in furtherance of a
Phi Beta Sigma initiation ritual required for membership.
After the trial, State Farm settled with Mr. McElveen for $975,000. On July 10, 2015,
State Farm filed the present action, seeking indemnity, damages, and declaratory relief.

II.

Legal Standard
Summary judgment is appropriate if a party "shows that there is no genuine dispute as to

any material fact" and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). In other words, summary judgment should be granted "only when it is clear that there is no
dispute concerning either the facts of the controversy or the inferences to be drawn from those
facts." Pulliam lnv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). "In determining
whether a genuine issue has been raised, the court must construe all inferences and ambiguities in
favor ofthe nonmoving party." HealthSouth Rehab. Hosp. v. Am. Nat 'I Red Cross, 101 F.3d 1005,
1008 (4th Cir. 1996). The party seeking summary judgment shoulders the initial burden of
demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986).
Once the moving party has made this threshold demonstration, the non-moving party, to
survive the motion for summary judgment, may not rest on the allegations averred in his pleadings.

ld at 324. Rather, the non-moving party must demonstrate that specific, material facts exist that
give rise to a genuine issue. Id Under this standard, "[c]onc1usory or speculative allegations do
not suffice, nor does a 'mere scintilla of evidence'" in support of the non-moving party's case.

Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (quoting Phillips v.
CSX Transp., Inc., 190 F.3d 285, 287 (4th Cir. 1999)).

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III.

Discussion
State Fann asserts Mr. Robinson was an insured under the Admiral policy as a volunteer

worker with Phi Beta Sigma, and that Admiral therefore had a duty to defend him in the underlying
tort action and to indemnify him. (Dkt. No. 52-I.) Admiral responds that Mr. Robinson was not
an insured under the policy because he was not a volunteer worker for Phi Beta Sigma as that ten:n
is defined under the policy (at least with regard to the night of October 22-23, 2011), and that even
if he were an insured, the claims against him fell under the policy's exclusion for violation of
membership intake process and the policy's exclusion for bodily injury arising from hazing.
Admiral seeks summary judgment for those same reasons.
The Court does not reach whether Mr. Robinson was an insured under the policy or whether
his conduct fell under the policy's exclusion for violation of membership intake process. Even if
Mr. Robinson were an insured under the policy issued by Admiral, Mr. McElveen's claims against
him plainly fall under the policy's hazing exclusion. That exclusion provides,
It is agreed this insurance does not apply to "bodily injury", "property damage" or
"personal and advertising injury" arising out of hazing, sexual abuse, physical
abuse or molestation committed by any insured.

This exclusion applies only to insureds who participate in or direct others to
participate in the hazing, sexual abuse, physical abuse, or molestation.
(Dkt. No. 50-3.)
There is no genuine dispute that Mr. McElveen's claims "arise out of hazing." (See Dkt. No. 50­
1 (Mr. McElveen's complaint in state court).) State Fann's argument regarding the hazing
exclusion is that it does not apply to Mr. Robinson because he did not participate in or direct others
to participate in the hazing of Mr. McElveen. (See Dkt. No. 54 at 13.). That argument suffers
from the fatal flaws that Mr. Robinson unambiguously testified that he did participate in the hazing
that night. At his deposition, he testified:

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Q. You admit that that was hazing that was going on?
A. Correct.
Q. And that you participated it?
A. Correct.

Q. And you agree that you violated the membership intake process of Phi Beta
Sigma that night?
A. That's correct.
Q. And that you participated in hazing that night?
A. That's correct.
(Dkt. No. 55-1.)
At trial, Mr. Robinson testified:
Q. Now, did you or did you not participate in any hazing the night of October 22nd
into the morning hours of October 23rd?
A. Yes, I do.
Q. Okay. You just say you didn't beat him with a paddle is that right?
A. That's correct.

Q. Okay. But you admit that you participated in the activities that were going on
at your home?
A. Yes, sir.

(Dkt. No. 54-10.)

Given that trial testimony, State Farm might mean to argue that Mr. Robinson nonetheless

did not participate in the hazing of Mr. McElveen that resulted in Mr. McElveen's bodily injury
because that injury resulted from paddling and Mr. Robinson did not paddle Mr. McElveen himself
or direct others to paddle Mr. McElveen. But that argument would be without merit. The issue is
not whether Mr. McElveen's injuries arose from a battery committed by Mr. Robinson (the policy

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has a separate assault and battery exclusion). The issue is whether Mr. McElveen's injuries arose
from a hazing incident that Mr. Robinson participated in. The parties admit Mr. McElveen's
injuries arose from the October 22-23, 2011 hazing hosted in Mr. Robinson's home. Mr. Robinson
admits he participated in that hazing. Further, he admits he had control over the hazing. Mr.
Robinson testified that the hazing occurred at his home, that he observed the hazing, and that he
could have stopped the hazing at any time. (Dkt. No. 55-1 at 7-8.) To invite something to occur
in one's home and then to observe that thing occurring while having power to stop it at any time
is to have control over that thing. Hence, at trial Mr. McElveen testified,
Q. Who was in charge that night?
A. Mr. Maurice Robinson.
Q. Whose home was the event held at?
A. Mr. Maurice Robinson's home.
Q. Who had the room with the paddles on the wall?3
A. Mr. Maurice Robinson.

(Dkt. No. 50-4 at 9.)
The Court finds no genuine dispute that Mr. McElveen's claim arose from a hazing incident
in Mr. Robinson's home that Mr. Robinson had control over and that he participated in. The hazing
exclusion therefore precludes Mr. Robinson from having any coverage claim against Admiral
under policy number CA000002580-08. Admiral had no duty to defend or to indemnify Mr.
Robinson. Defendant Admiral Insurance Company is entitled to judgment as a matter of law.

3 Apparently, Mr. Robinson's fraternity paddles were displayed as trophies and were not the
paddles used on Mr. McElveen. (Dkt. No. 50-4 at 17.)

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IV.

Conclusion
For the foregoing reasons, the Court GRANTS Admiral's motion for summary judgment

(Dkt. No. 50) and DENIES State Farm's motion for summary judgment (Dkt. No. 52),
AND IT IS SO ORDERED.

United States District Court Judge

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January );So, 2017
Charleston, South Carolina

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