State Farm Fire and Casualty Company v. Bonetti et al
Filing
27
ORDER granting 22 Motion for Summary Judgment. Signed by Judge S. Thomas Anderson on 4/13/12. (Anderson, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
STATE FARM FIRE AND CASUALTY )
COMPANY,
)
)
Plaintiff,
)
)
v.
)
No. 11-2056-STA-tmp
)
VINCENT BONETTI and TEIG
)
PEPPERS,
)
)
Defendants.
)
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
______________________________________________________________________________
Before the Court is Plaintiff’s Motion for Summary Judgment (D.E. # 22), filed on
February 14, 2012. Defendant Teig Peppers (“Defendant”) filed a Response (D.E. # 25) on
February 17, 2012. Plaintiff filed a Reply (D.E. # 26) on February 23, 2012. For the reasons set
forth below, Plaintiff’s Motion is GRANTED.
BACKGROUND
Plaintiff filed its Complaint for Declaratory Judgment on January 25, 2011. (D.E. # 1.)
The Complaint requests the Court to determine the meaning of Defendant’s insurance coverage
with Plaintiff and whether Plaintiff is required to cover Defendant for actions arising from a civil
assault and battery suit (“the Civil Case”) between him and Defendant Vincent Bonetti
(“Bonetti”). (Id.) Defendant filed an Answer to the Complaint on March 15, 2011 (D.E. # 11),
but because Bonetti failed to do so, Plaintiff filed a Motion for Entry of Default against Bonetti
that same day. (D.E. # 12.) The Clerk entered default on March 17, 2011 (D.E. # 13), and
1
Plaintiff filed a Motion for Default Judgment (D.E. # 14) on March 18, 2011. The Court granted
the Motion on April 12, 2011 (D.E. # 16), and Defendant is thus the sole remaining Defendant in
this case. Defendant filed a Motion to Stay the case pending resolution of his state court
criminal trial for aggravated assault, but the Court denied his Motion on December 27, 2011.
(D.E. # 20.) Plaintiff then filed the Motion for Summary Judgment now before the Court on
February 14, 2010. (D.E. # 22.)
The following facts are undisputed for purposes of this Motion. Defendant’s
homeowner’s insurance policy (“the Policy”) contains certain definitions in Section I. (D.E. #
10-1, at 16.) It defines “bodily injury” as “physical injury, sickness, or disease to a person. This
includes required care, loss of services, and death resulting therefrom.” (Id.) Bodily injury does
not include “emotional distress, mental anguish, humiliation, mental distress, mental injury, or
any similar injury unless it arises out of actual physical injury to some person.” (Id.) An
“occurrence” means “an accident, including exposure to conditions, which results in bodily
injury or property damage during the policy period.” (Id.) “Property damage” means “physical
damage to or destruction of tangible property, including loss of use of this property.” (Id.)
“Accident” is not defined in the Policy. It is undisputed that Defendant is insured under the
Policy and that Plaintiff issued the Policy to Defendant before the events underlying the Civil
Case. (Pl.’s Statement of Material Undisputed Facts, D.E. # 22-2, at 1.)
The Policy also contains a list of Liability Coverages in Section II. Coverage L covers
personal liability and provides that “[i]f 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, [Plaintiff] will pay up to [its] limit of liability for the damages for which
2
[Defendant] is legally liable and provide a defense at [its] expense by counsel of [its] choice.”
(D.E. # 10-1, at 23.) However, Section II also contains exclusions, one of which notes that
Coverage L does not apply to “bodily injury or property damage which is either expected or
intended by the insured or which is the result of willful and malicious acts of the insured.” (Id.)
Bonetti began the Civil Case against Defendant in Shelby County Circuit Court on
October 27, 2010. (D.E. # 1-3, at 1; Pl.’s Statement of Material Undisputed Facts, D.E. # 22-2,
at 1.) The Civil Case complaint alleges that Defendant “physically attacked” Bonetti. (Id.) It
also states that “the conduct of Defendant was willful, wanton, premeditated, malicious,
intentional, or reckless to such an extent as to subject Defendant to punitive damages.” (D.E. #
1-3, at 1.) Rather than asserting a cause of action under Tennessee’s tort common law, the Civil
Case’s complaint alleges that Defendant violated Tenn. Code Ann. §§ 39-13-101 and 39-13-102,
which codify the crimes of assault and aggravated assault. (Id. at 1-2.) Bonetti then lists his
injuries allegedly caused by Defendant, which include injuries to his “head, neck, back, knee,
wrist, hip, [and] entire central nervous and emotional systems.” (Id. at 2.) Defendant also faces
criminal charges for aggravated assault in Shelby County Criminal Court. (Pl.’s Statement of
Material Undisputed Facts, D.E. # 22-2, at 2.)
During the early morning hours of May 15, 2010, an altercation took place between
Defendant and Bonetti at a karaoke bar in Shelby County known as Windjammer. (Id.)
Defendant and a female acquaintance, Jennifer Davis (“Davis”), were preparing to leave the bar
when Davis decided to say goodbye to the karaoke DJ. (Id.) Defendant indicated to Davis,
while she was saying goodbye to the DJ, that he was going to leave. (Id.) At that time, Davis
3
motioned to Defendant and asked him to stand next to her and pretend that they were talking,
thereby putting Defendant’s back to Bonetti. (Id.)
At his deposition, Defendant testified that Bonetti pushed him into Davis, after which
Defendant turned around and, after a short exchange of words, pushed Bonetti out of the way.
(Id.) The two men fell and the altercation continued. (Id.) However, Bonetti testified at his
deposition that he was standing with his back to the DJ immediately prior to the altercation. (Id.
at 3.) According to him, Defendant shoved him from behind onto the corner of a table, and
Bonetti turned around to face Defendant. (Id.) Defendant then picked up Bonetti and rammed
him full speed into a built-in booth. (Id.)
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(a) provides that the
court shall grant summary judgment 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.1
In reviewing a motion for summary judgment, the evidence must be viewed in the light most
favorable to the nonmoving party.2 When the motion is supported by documentary proof such as
depositions and affidavits, the nonmoving party may not rest on his pleadings but instead must
present some “specific facts showing that there is a genuine issue for trial.”3 It is not sufficient
“simply [to] show that there is some metaphysical doubt as to the material facts.”4 These facts
1
Fed. R. Civ. P. 56(a).
2
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
3
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
4
Matsushita, 475 U.S. at 586.
4
must be more than a scintilla of evidence and must meet the standard of whether a reasonable
juror could find by a preponderance of the evidence that the nonmoving party is entitled to a
verdict.5 When determining if summary judgment is appropriate, the Court should ask “whether
the evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-side that one party must prevail as a matter of law.”6
Summary judgment must be entered “against a party who 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.”7 In this Circuit, “this requires the nonmoving party
to ‘put up or shut up’ [on] the critical issues of [his] asserted causes of action.”8
ANALYSIS
In Tennessee, the “construction and validity of a contract are governed by the law of the
place where the contract [wa]s made.”9 This principle is known as lex loci contractus, meaning
that “a contract is presumed to be governed by the law of the jurisdiction in which it was
executed absent contrary intent.”10 Plaintiff submits that the Policy “was issued to a Tennessee
resident, covering real property in Tennessee” and that Tennessee law governs the interpretation
5
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
6
Id. at 251-52.
7
Celotex, 477 U.S. at 322.
8
Lord v. Saratoga Capital, Inc., 920 F. Supp. 840, 847 (W.D. Tenn. 1995) (citing
Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1989)).
9
Ohio Cas. Ins. Co. v. Travelers Indem. Co., 493 S.W.2d 465, 466 (Tenn. 1973).
10
Vantage Tech., LLC v. Cross, 17 S.W.3d 637, 650 (Tenn. Ct. App. 1999). A
contract is executed or made in the state in which it was signed. See In re Estate of Davis, 184
S.W.3d 231, 233-35 (Tenn. Ct. App. 2004).
5
of the Policy.11 Defendant does not contest this assertion. Therefore, the Court will apply
Tennessee law as it interprets the Policy.
Because “insurance policies are, at their core, contracts,”12 a court’s interpretation of an
insurance policy follows the same principles as interpreting a contract.13 When an insurance
policy’s language is clear, courts must not look beyond the four corners of the instrument.14 In
construing contracts, the words expressing the parties’ intentions should be given their usual,
natural, and ordinary meaning.15 Only when a provision is ambiguous will a court construe its
interpretation against the drafter of the agreement.16 Thus, when an insurance policy is
ambiguous, and that ambiguity limits the coverage of an insurance policy, that language must be
construed against the company and in favor of the insured.17
The Meaning of “Occurrence”
11
(Pl.’s Mot., D.E. # 22-1, at 5.)
12
See, e.g., Artress v. State Farm Fire & Cas. Co., 429 S.W.2d 430, 432 (Tenn.
13
Christenberry v. Tipton, 160 S.W.3d 487, 492 (Tenn. 2005).
14
Whitehaven Cmty. Baptist Church v. Holloway, 973 S.W.2d 592, 596 (Tenn.
15
Id. (citing Ballard v. North Am. Life & Cas. Co., 667 S.W.2d 79 (Tenn. Ct. App.
16
Allstate Ins. Co. v. Watson, 195 S.W.3d 609, 612 (Tenn. 2006).
17
Tata v. Nichols, 848 S.W.2d 649, 650 (Tenn. 1993).
1968).
1998).
1983)).
6
In the liability insurance policy context, the Tennessee Supreme Court has adopted the
definition of “accident” to mean “an event not reasonably foreseen, unexpected and fortuitous.”18
Although the court noted that “while negligent acts can and in fact often do support a claim of
accident as this word is used in insurance policies,” accident and negligence are not
synonymous, and “[t]he nature of the action, that is whether it be tort, contract, or otherwise,
may be a factor in determining if there has been an accident under a given factual situation.”19
Moreover, the court noted with approval that “the term ‘accident’ in liability insurance contracts
generally does not include any injury deliberately or willfully done.”20 In the commercial
general liability (“CGL”) context, the Tennessee Supreme Court adopted the definition of
“accident” used in the liability insurance context and held that the term “accident” as used in the
CGL meant “an unforeseen or unexpected event.”21 Foreseeability is evaluated from the point of
view of the insured.22
In Gassaway, the court construed the word “accident” to include the “negligent acts of
the insured causing damage which is undesigned and unexpected.”23 In Moore, the CGL defined
“occurrence” as “an accident, including continuous or repeated exposure to substantially the
18
Gassaway v. Travelers Ins. Co., 439 S.W.2d 605, 608-09 (Tenn. 1969).
19
Id. at 607.
20
Id.
21
Moore, 216 S.W.3d 302, 308 (Tenn. 2007).
22
Gassaway, 439 S.W.2d at 608-09.
23
Moore, 216 S.W.3d at 308 (quoting Gassaway, 439 S.W.2d at 607).
7
same general harmful conditions.”24 That definition is similar to the Policy’s definition of
“occurrence” in this case.
In its Motion, Plaintiff argues that Bonetti’s injuries were not the result of an
“occurrence” under the Policy and that, as such, Plaintiff is not required to provide coverage.25
In the alleged absence of guidance regarding the term “occurrence” in the personal liability
coverage context, Plaintiff turns to commercial general liability contracts and argues that the
term “accident” as defined in a liability policy’s definition of “occurrence” means “an
unforeseen or unexpected event.”26
In response, Defendant agrees with Plaintiff’s definition of “accident” but argues that,
based on Defendant and Bonetti’s conflicting testimony, Plaintiff cannot demonstrate that
Defendant intended to harm Bonetti when he made physical contact with him.27 In reply,
Plaintiff asserts that the motivation behind Defendant’s actions in pushing Bonetti, whether in
self defense or as initial aggressor, are irrelevant to this case and need not be decided.28 Plaintiff
states that Defendant’s pushing of Bonetti cannot be considered an accident and that it cannot be
an occurrence as defined in the Policy.29
24
Id.
25
(Pl.’s Mot., D.E. # 22-1, at 7.)
26
(Id.)
27
(Def.’s Resp., D.E. # 25, at 5.)
28
(Pl.’s Reply, D.E. # 26, at 5.)
29
(Id.)
8
The Court finds that the Tennessee Supreme Court has already defined which events
constitute “accidents” under liability insurance policies: an accident is “an event not reasonably
foreseen, unexpected and fortuitous.” Accordingly, because the Policy does not define
“accident,” the Court adopts this definition of “accident” and will apply it to its evaluation of
whether the events underlying the Civil Case constitute an “occurrence” so as to trigger
Plaintiff’s duty to defend Defendant.
Plaintiff’s Duty to Defend
An insurance company’s duty to defend depends solely on the allegations contained in
the underlying complaint.30 Accordingly, the insurer has a duty to defend when the underlying
complaint alleges damages that are within the risk covered by the insurance contract and for
which there is a potential basis for recovery.31 The duty to defend arises if even one of the
allegations is covered by the policy.32 Where the complaint does not state facts sufficient to
clearly bring the case within the insurance policy’s coverage, the insurer is obligated to defend if
a cause of action under the complaint could potentially be within the policy’s coverage.33
In its Motion, Plaintiff argues that it has no duty to defend Defendant in the Civil Case
under the facts as alleged in the Civil Case complaint.34 Plaintiff notes that the Civil Case
30
St. Paul Fire & Marine Ins. Co. v. Torpoco, 879 S.W.2d 831, 835 (Tenn. 1994).
31
Id.
32
See Drexel Chem. Co. v. Bituminous Ins. Co., 933 S.W.2d 471, 480 (Tenn. Ct.
App. 1996).
33
Dempster Bros., Inc. v. U.S. Fid. & Guar. Co., 388 S.W.2d 153, 156 (Tenn. Ct.
App. 1964).
34
(Pl.’s Mot., D.E. # 22-1, at 9.)
9
complaint contains allegations of Defendant’s assault on Bonetti. Despite the Civil Case
complaint’s citation to Tennessee’s criminal assault and aggravated assault statutes, Plaintiff
interprets the Civil Case complaint as bringing claims for assault and battery.35 Plaintiff then
asserts that, because assault and battery are intentional torts under Tennessee common law, and
intentional conduct does not qualify as an “occurrence” because it is not unforeseen by a
defendant, the Policy does not apply to Defendant’s actions as alleged in the Civil Case.36
Defendant’s self defense claims have no bearing on the application of the Policy because
Defendant still acted intentionally with the knowledge or expectation that the injury would
result.37
Alternatively, Plaintiff argues that, even if Defendant’s conduct qualifies as an
occurrence under Coverage L, Defendant is excluded from coverage under Section II because he
intended the bodily injury suffered by Bonetti.38 In light of controlling case law, Plaintiff asserts
that assault and battery, even if characterized as self-defense, are intentional actions and can be
precluded by an insurance policy’s intentional acts exclusion.39 Plaintiff points out that the only
occasion where reckless conduct is alleged in the Civil Case complaint is where Bonetti states
that Defendant acted with the various mental states required to sustain punitive damages.40 As
35
(Id. at 10.)
36
(Id.)
37
(Id. at 11.)
38
(Pl.’s Mot., D.E. # 22-1, at 11.)
39
(Id. at 12.)
40
(Id.)
10
such, Plaintiff alleges that this brief mention is insufficient to remove Defendant’s Civil Case
from the exclusion because the Civil Case complaint does not contain any factual allegations of
reckless or accidental conduct.41
In response, Defendant points to the differences between Bonetti and Defendant’s
versions of how the altercation occurred and argues that the Court cannot find that Defendant
intended to inflict bodily harm on Bonetti.42 Moreover, Defendant focuses on the Civil Case
complaint’s mention of reckless conduct as bringing the Civil Case outside the scope of the
Policy’s exclusion.43 He cites to the Civil Case’s reliance on Tennessee’s criminal assault
statutes as demonstrating that Bonetti could recover if Defendant acted recklessly, but his
reckless conduct would not be covered by the Policy’s exclusion.44
In reply, Plaintiff argues that “in the civil context of tort litigation, assault and battery are
not governed by the criminal statute standards. Rather, assault and battery are common law
causes of action that have clearly been deemed intentional acts excluded by intentional act
exclusions under Tennessee law.”45 Plaintiff points out that, if the Court accepts Defendant’s
argument, “every insurer will owe a defense any time a word such as ‘reckless’ is thrown into a
complaint regardless of the . . . factual allegations of the complaint.”46
41
(Id.)
42
(Def.’s Resp., D.E. # 25, at 5.)
43
(Id. at 5-6.)
44
(Id. at 6-7.)
45
(Pl.’s Reply, D.E. # 26, at 3.)
46
(Id. at 4.)
11
At the outset, the Court finds that the events underlying the Civil Case are not an
“accident” and thus are not covered by Defendant’s Coverage L of Defendant’s liability
coverages. Even accepting Defendant’s version of the events leading up to the altercation,
Defendant’s contact with Bonetti leading up to their fall to the floor was not accidental. At his
deposition, Defendant testified that his back was to Bonetti and that Bonetti pushed him into
Davis.47 After this initial shove, Bonetti and Defendant exchanged words, and Defendant then
tried to push Bonetti out of his way by making a motion with his left hand.48 The two then fell to
the floor and an altercation ensued.49
Thus, although Bonetti’s initial contact with Defendant could be classified as accidental,
Defendant’s shove of Bonetti with his left hand was not something Defendant did not reasonably
foresee. Indeed, Defendant testified that he pushed Bonetti to escape because he “saw
[Bonetti’s] people coming” and “felt like [he] was about to be jumped on.”50 This testimony
indicates that, when viewed from the perspective of Defendant, he intended to push Bonetti, and
the push of Bonetti and the resulting altercation and physical injuries could not have been
unforeseen by Defendant. Therefore, the Court finds that Defendant’s push of Bonetti was
foreseeable, expected, and not fortuitous: it was not an “accident” as defined in Tennessee’s
insurance liability jurisprudence. Nor was the subsequent altercation accidental. Therefore,
47
(Dep. of Def. Peppers, D.E. # 23-1, at 12.)
48
(Id. at 13.)
49
(Id. at 13-14.)
50
(Id. at 13.)
12
Defendant’s actions do not count as an “occurrence” under the Policy, and Coverage L was not
triggered by the events underlying the Civil Case.
The Court’s conclusion is the same even if it limits its evaluation to the Civil Case
complaint. The Civil Case complaint does not indicate that Defendant acted accidentally.
Rather, a physical attack is generally an intentional act, and the Civil Case complaint does not
contain facts indicating that Defendant’s attack was unforeseen by him. Accordingly, under the
Civil Case complaint, Defendant’s conduct was not an “accident,” and the Civil Case
complaint’s allegations do not trigger Coverage L.
Even if the events underlying the Civil Case qualified as an “accident”—and thus an
“occurrence,” thereby triggering Coverage L—Section II’s exclusion would apply, and Plaintiff
would not be required to defend Defendant in the Civil Case. The facts of the underlying Civil
Case complaint consist of a single sentence: “Defendant . . . physically attacked [Bonetti]
causing [Bonetti] severe personal injuries.”51 Such a physical attack would necessarily be
intentional. Although the Court acknowledges that Bonetti’s attorney has couched the Civil
Case complaint’s cause of action in Tennessee’s assault and aggravated assault criminal statutes,
the Court finds that the Civil Case complaint is actually asserting a cause of action for assault
and battery. Bonetti would be unable to sue for a violation of the criminal code in circuit court,
and he has not pled negligence per se.
51
(Civil Case Compl., D.E. # 1-3, at 1.)
13
“It is well settled in Tennessee that assault and battery, if proven, are intentional torts;”52
therefore, the bodily injury arising from the physical assault pled by Bonetti, if successful, would
have to have been intended by Defendant. This intention triggers Section II’s coverage
exclusion for bodily injury “which is either expected or intended by the insured.” Moreover, the
Civil Case complaint contains only intentional torts. Although Bonetti alleged that Defendant
acted recklessly, this allegation arose in the context of Bonetti’s request for punitive damages.
Recklessness is not an element of the torts charged, and if Defendant’s conduct was merely
reckless, he will not be liable for any of the civil causes of action which appear to be alleged in
the Civil Case complaint. As such, Bonetti’s mere allegation of recklessness, when confined to
the punitive damages context, is insufficient to trigger Plaintiff’s duty to defend. Accordingly,
the Court finds that even if the events at Windjammer were an “accident,” and thus an
“occurrence” under Coverage L, Defendant would be excluded from coverage under Section II
because he acted intentionally. Therefore, Plaintiff has no duty to defend Defendant, and its
Motion for Summary Judgment is GRANTED.
Plaintiff’s Duty to Indemnify
An insurer’s duty to defend is separate and distinct from the insurer’s obligation to pay
claims under the insurance policy.53 A duty to indemnify is narrower than a duty to defend; thus,
if a duty to defend does not exist, a duty to indemnify cannot exist either.54
52
McCall v. Nat’l Health Corp., No. M2004-00261-COA-R3-CV, 2006 WL
2523970, at *3 (Tenn. Ct. App. Aug. 31, 2006).
53
Jackson Hous. Auth. v. Aut-Owners Ins. Co., 686 S.W.2d 917, 922 (Tenn. Ct.
App. 1984).
54
Moore, 216 S.W.3d at 305.
14
In its Motion, Plaintiff argues that because it has no duty to defend, it has no duty to
indemnify Defendant.55 Plaintiff appears to incorporate the same arguments it made regarding
its lack of duty to defend Defendant in the Civil Case and avers that the Civil Case complaint
demonstrates that Defendant’s conduct was intentional.56 Accordingly, Plaintiff requests the
Court to find that there is no duty to indemnify Defendant in the Civil Case.57 Defendant does
not respond to these arguments, but the Court assumes that arguments similar to those presented
above. In its Reply, Plaintiff avers that because the duty to indemnify is narrower than the duty
to defend, if no duty to defend exists, Plaintiff does not owe a duty to indemnify to Defendant.58
Because the Court has found that Plaintiff has no duty to defend Defendant in the Civil
Case, and the duty to indemnify is narrower than the duty to defend, the Court finds that Plaintiff
has not duty to indemnify Defendant. Accordingly, Plaintiff’s Motion for Summary Judgment is
GRANTED in this regard.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Summary Judgment is GRANTED.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: April 13, 2012.
55
(Pl.’s Mot., D.E. # 22-1, at 13.)
56
(Id. at 13-14.)
57
(Id. at 14.)
58
(Pl.’s Reply, D.E. # 26, at 4.)
15
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