Atain Specialty Insurance Company v. Sai Darshan Corp. d/b/a America's Best Value Inn et al
MEMORANDUM OPINION AND ORDER granting 25 MOTION for Summary Judgment , denying as moot 31 MOTION for Partial Summary Judgment on Plaintiff's Duty to Defend (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
ATAIN SPECIALTY INSURANCE
SAI DARSHAN CORP. d/b/a
AMERICA'S BEST VALUE INN,
ARVINDBHAI N. PATEL, VANTAGE
HOSPITALITY GROUP, INC.,
ANDRE DOYLE, JOSEPH TIPPINS,
SHERREKA TIPPINS, ANGELA
TIPPINS, THOMIKA ANDREWS,
RHONAI SIMMONS, and PAMELA
KENNEDY, Individually and
a/n/f of J.T. and J.T.,
December 29, 2016
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-1446
MEMORANDUM OPINION AND ORDER
Plaintiff, Atain Specialty Insurance Company ( "Atain") , brings
this action against defendants, Sai Darshan Corp.
doing business as America's Best Value Inn,
Doyle, Joseph Tippins,
Sherreka Tippins, Angela Tippins, Thomika
Andrews, Rhonai Simmons, and Pamela Kennedy,
individually and as
next friend of J.T. and J.T. ("the Individual Defendants"), seeking
coverage does not exist under Policy No. CIP183811 ("the Policy")
issued to America's Best Value Inn/Sai Darshan for claims asserted
Sherreka Tippins, Angela Tippins, Thomika Andrews, Rhonai Simmons,
Pamela Kennedy, Individually and a/n/f of J.T. and J.T. v. Vantage
Sai Darshan Corp.
Lawsuit") . 1
d/b/a America's Best
Specialty Insurance Company's Motion for Summary Judgment ( "Atain' s
(Docket Entry No.
Inc.'s Partial Motion for Summary Judgment on Plaintiff's
and Defendant Vantage Hospitality
Duty to Defend ("Vantage's MPSJ")
(Docket Entry No. 31).
Vantage's motion will be denied as moot.
Undisputed Facts and Procedural Background
Atain issued the Policy to America's Best Value Inn and Sai
Darshan as named insureds.
to 12/26/2014. 2
The policy period was from 12/26/2013
The grant of coverage was as follows:
a. We will pay those sums that the insured becomes
legally obligated to pay as damages because of
Exhibit B to Atain Specialty Insurance Company's Original Complaint
Seeking Declaratory and Other Relief ("Original Complaint") , Docket
Entry No. 1-2.
The Policy, Exhibit A to Original Complaint, Docket Entry
No. 1-1, pp. 1, 5. Page citations throughout this document are to
the pagination imprinted by the federal court's electronic filing
system at the top and right of the document.
"bodily injury" or "property damage" to which this
insurance applies. We will have the right and duty
to defend the insured against any "suit" seeking
However, we will have no duty to
defend the insured against any "suit" seeking
damages for "bodily injury" or "property damage" to
which this insurance does not apply.
We may, at
our discretion, investigate any "occurrence" and
settle any claim or "suit" that may result. But:
(1) The amount we will pay for damages is
limited as described in Section III-Limits Of
(2) Our right and duty to defend ends when we
have used up the applicable limit of insurance
in the payment of judgments or settlements
under Coverages A or B or medical expenses
under Coverage C. 3
Endorsement which in pertinent part provides:
ASSAULT AND BATTERY EXCLUSION
This insurance does not apply to "bodily injury" or
"property damage," in whole or in part, either directly
or indirectly, or in any way arising out of any of the
Assault and Battery committed by any Insured, any
employee of any Insured or any other person;
The failure to suppress or prevent Assault
Battery by any person in 1[,] above;
[R]esulting from or allegedly related to the
negligent hiring, supervision or training of any
employee of the Insured; or
Assault or Battery, whether or not caused by or
arising out of negligent,
reckless or wanton
conduct of the Insured, the Insured's employees,
patrons or other persons lawfully or otherwise on,
at or near the premises owned or occupied by the
Insured, or by any other person.
Id. at 98.
For the purposes of this exclusion, Assault and Battery
includes, but is not limited to, the use of reasonable
force or self-defense by any party, person, insured or
employee of any insured.
Furthermore for this Exclusion, SECTION I - COVERAGES
COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY,
Section 2. Exclusions Paragraph a. Expected Or Intended
Injury is replaced by the following:
Expected Or Intended Injury
"Bodily Injury" or "property damage" expected or
intended from the standpoint of the insured. 4
On May 11
Tommy Thurman checked into America
After checking in at the office,
Thurman drove his
truck around to the parking lot in the area close to his room.
he exited his vehicle, Thurman was assailed by four men who robbed
him and shot him multiple times.
Thurman died at
the scene. 5
On or about May 5, 2016, the Individual Defendants filed the
Plaintiffs in the Underlying Lawsuit assert claims for negligence,
gross negligence, breach of contract/ premises liability, violation
of the Texas Deceptive Trade Practices Act, and failure to control
hotel operations based on the following allegations of fact:
Id. at 85-86.
0riginal Petition, Exhibit B to Original Complaint, Docket
Entry No. 1-2 p. 3. See also Defendant Vantage Hospitality Group,
Inc.'s Response to Atain Specialty Insurance Companyts Motion for
Summary Judgment ("Vantage s Response to Atain' s MSJ'
Entry No. 281 p. 9.
Entry No. 1-2.
Exhibit B to Original Complaint, Docket
On May 11, 2014, at approximately 5 a.m., Mr. Thurman
checked into America's Best Value Inn located at 4515
Airline Drive, Houston, Texas 77022. After checking in
at the office, Mr. Thurman drove his truck around to the
parking lot in the area close to his hotel room. As he
exited his vehicle, he was assailed by four men who began
shooting at him. Mr. Thurman was shot multiple times and
He was pronounced dead at the scene. 7
Plaintiffs in the Underlying Lawsuit also allege that the hotel
premises were owned and operated by Sai Darshan and Patel, but that
Vantage had entered a membership agreement for the hotel with Sai
Darshan and Patel pursuant to which Vantage had a right of control
and may be held liable for Sai Darshan and Patel under the theory
of principal and agency for its own failure to inspect, supervise,
reasonably safe premises for all guests. 8
On May 24, 2016, Atain filed this action seeking a declaration
that coverage for the claims made in the Underlying Lawsuit does
Exclusion, and that Atain owes neither a duty to defend nor a duty
to indemnify any person or entity in the Underlying Lawsuit (Docket
(plaintiffs in the Underlying Lawsuit) filed their answer (Docket
Entry No. 9); on July 13, 2016, Sai Darshan and Patel filed their
(Docket Entry Nos.
11 and 12);
Id. at 3 ~ 9, 5-10 ~~ 15-37.
Id. at 3-4 ~~ 10-11.
and on August 5,
Vantage filed its answer
(Docket Entry No.
stipulation of no coverage as to Sai
the court signed a
On August 19,
Darshan d/b/a America's Best Value Inn and Patel,
those defendants without prejudice
(Docket Entry No.
Atain filed its motion for summary judgment
(Docket Entry No. 25) seeking declaration that it has no duty to
defend or indemnify any person or entity on the claims asserted in
the Underlying Lawsuit.
On October 10,
motion for partial summary judgment
2016, Vantage filed its
(Docket Entry No.
Atain does have a duty to defend Vantage in the Underlying Lawsuit,
and that the issue of whether Atain has a duty to indemnify Vantage
is not ripe for determination.
None of the individual defendants
have filed a response to Atain's MSJ.
Standard of Review
Summary judgment is authorized if the movant establishes that
there is no genuine dispute about any material fact and the law
entitles it to judgment.
Fed. R. Civ. P. 56(a).
reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2511 (1986).
Supreme Court has interpreted the plain language of Rule 56(a) to
mandate the entry of summary judgment "after adequate time for
discovery and upon motion,
against a party who fails to make a
essential to that party's case, and on which that party will bear
the burden of proof at trial."
A party moving for summary judgment
'demonstrate the absence of
issue of material
fact,' but need not negate the elements of the nonmovant's case."
Liquid Air Corp.,
37 F.3d 1069,
controversies are to be resolved in favor of the nonmovant,
Little, 37 F.3d at 1075.
cross-motions for summary judgment,
"When parties file
[courts] review 'each party's
motion independently, viewing the evidence and inferences in the
light most favorable to the nonmoving party.'"
Authority of City of Slidell,
747 F.3d 295,
Cooley v. Housing
(5th Cir. 2014)
(quoting Ford Motor Co. v. Texas Department of Transportation, 264
F.3d 493, 498 (5th Cir. 2001)).
See also Shaw Constructors v. ICF
Kaiser Engineers, Inc., 395 F.3d 533, 538-39 (5th Cir. 2004), cert.
denied, 126 S. Ct. 342
("Cross-motions must be considered
separately, as each movant bears the burden of establishing that no
genuine issue of material fact exists and that it is entitled to
judgment as a matter of law.").
Cross Motions for Summary Judgment
Atain argues that it is entitled to summary judgment declaring
that it has no duty to defend or indemnify because the Assault and
Battery Exclusion contained in the Policy excludes coverage for all
of the claims asserted against all of the defendants named in the
Vantage argues that it - not Atain
is entitled to summary
judgment on the duty to defend because the Assault and Battery
Exclusion is ambiguous and must therefore be construed against the
insurer and in favor of the insured, and that Atain is not entitled
to summary judgment on the duty to indemnify because that issue is
not yet ripe for determination.
Almost four months have passed since Atain filed its motion
for summary judgment on September 6, 2016
(Docket Entry No. 25),
and three months have passed since responses to Atain's pending
motion for summary judgment were due on September 27,
none of the Individual Defendants have responded to Atain's motion.
Local Rule 7.3 provides that:
"Opposed motions will be submitted
to the judge twenty days from filing without notice from the clerk
and without appearance by counsel."
S . D.
(2 0 0 0 ) .
Local Rule 7.4 provides:
Failure to respond will be taken as a representation of
no opposition. Responses to motions
Must be filed by the submission day;
Must be written;
Must include or be accompanied by authority; and
Must be accompanied by a
denying the relief sought.
S . D . Tex . R . 7 . 4 ( 2 0 0 0 ) .
In accordance with Local Rule 7.4, the
Atain's MSJ as a representation of no opposition to Atain's summary
Although a district court may not grant summary
judgment by default simply because there is no opposition to the
motion, the court may accept as undisputed the movant's version of
the facts and grant a motion for summary judgment when the movant
has made a prima facie showing of entitlement to summary judgment.
Colleges and Universities), 757 F.2d 698, 708 (5th Cir. 1985)
the movant's summary judgment evidence establishes its right to
judgment as a matter of law,
the district court is entitled to
grant summary judgment absent unusual circumstances) ; and Eversley
nonmovant fails to respond to a motion for summary judgment, the
submittals make a prima facie showing of entitlement to judgment as
a matter of law) .
Because for the reasons explained below the
court concludes that Atain is entitled to judgment as a matter of
law that it has no duty either to defend or indemnify any of the
defendants named in the Underlying Lawsuit,
the court concludes
that Atain is entitled to summary judgment against the Individual
Defendants as well as Vantage.
Principles of Insurance Contract Construction
In diversity cases federal courts must apply the substantive
law of the forum state.
See Erie R.R. Co. v. Tompkins, 58 S. Ct.
Texas Industries, Inc. v. Factory Mutual Ins. Co., 486
F.3d 844, 846 (5th Cir. 2007)
(citing Farrell Construction Co. v.
Jefferson Parish, La., 896 F.2d 136, 140 (5th Cir. 1990)).
rules of contract construction require courts to "give effect to
Texas Industries, 486 F.3d at 846 (citing American
Manufacturers Mutual Ins.
(Tex. 2 0 0 3) ) .
124 S.W.3d 154,
Unless the policy shows that words are meant in a
technical or different sense, words used in the policy are given
their ordinary and generally accepted meaning.
See Don's Building
Supply. Inc. v. OneBeacon Ins. Co., 267 S.W.3d 20, 23 (Tex. 2008).
"' [I]f policy language is worded so that it can be given a definite
or certain legal meaning, it is not ambiguous and [courts] construe
it as a matter of law."'
Texas Industries, 486 F.3d at 846.
An ambiguity exists only if the
insurance policy can be given
multiple reasonable interpretations, "' [i]t is a settled rule that
policies of insurance will be interpreted and construed liberally
in favor of the insured and strictly against the insurer.'"
(quoting Kelly Associates, Ltd. v. Aetna Casualty & Surety Co., 681
(this rule is
'"especially so when
dealing with exceptions and words of limitation'")).
Utica National Insurance Co. of Texas v. American Indemnity Co.,
141 S.W.3d 198,
(When faced with more than one
reasonable interpretation of a policy exclusion, the court "'must
the construction of an exclusionary clause urged by the
insured as long as that construction is not unreasonable, even if
the construction urged by the insurer appears to be more reasonable
or a more accurate reflection of the parties' intent.'")).
Atain's Motion for Summary Judgment
Atain Has No Duty to Defend
An insurer in a liability insurance policy assumes two duties:
to defend the
insured against covered lawsuits and
indemnify the insured against all covered claims and judgments.
Ltd., 300 S.W.3d 740,
The duties to defend and
indemnify are distinct, and one may exist without the other.
See also Colony Ins. Co. v. Peachtree Construction, Ltd., 647 F.3d
248, 253-54 (5th Cir. 2011)
Insurers have a duty to defend their
policyholders in actions that assert claims potentially covered by
the insurance policy.
Gulf States Insurance Co. v. Alamo Carriage
Insurance Underwriters, Inc. v. McManus, 633 S.W.2d 787, 788 (Tex.
under which an
insurer's duty to defend is determined by the underlying pleadings,
considered in light of the policy provisions without regard to the
truth or falsity of those allegations.
See GuideOne Elite Ins. Co.
v. Fielder Road Baptist Church, 197 S.W.3d 305, 308
Facts outside the pleadings,
even those easily ascertained,
against the insured are liberally construed in favor of coverage.
"If a petition does not allege facts within the scope of
an insurer is not
against its insured."
876 S.W.2d 842,
legally required to defend a
American Physicians Ins. Exchange v. Garcia,
But if the four corners of a
petition allege facts stating a cause of action that potentially
falls within the four corners of the policy's scope of coverage,
the insurer has a duty to defend.
Northfield Ins. Co. v. Loving
Home Care, Inc., 363 F.3d 523, 528
(5th Cir. 2004).
bears the initial burden of establishing that a claim against it is
If the insured
potentially within the policy's coverage.
meets this burden,
the burden shifts to the insurer to establish
that the plain language of a policy exclusion allows the insurer to
avoid coverage of all claims.
Doubts regarding the duty to
defend are resolved in favor of the duty.
Underlying Lawsuit are potentially within the Policy's coverage,
but argues that under the plain language of the Assault and Battery
Exclusion it has no duty to defend because "all of the claims made
in the Underlying Lawsuit arise out of
battery by shooting .
. assault and
Stated differently, because the claims of
Underlying Plaintiffs against any party would not exist but for the
coverage does not exist." 9
Citing Tarrant County Ice
Sports, Inc. v. Equitable General Life Ins. Co. of Oklahoma, 662
S.W.2d 129, 131 (Tex. App. -Fort Worth 1983); Garrison v. Fielding
765 S.W.2d 536, 537
(Tex. App. -Dallas 1989,
writ denied), and many other cases, Atain argues that
for more than three decades, courts in Texas have
consistently applied the Assault and Battery Exclusion
not only to direct claims of assault and battery, but
also to claims of negligent hiring, supervision, and
training, as well as other interdependent claims of
In the Underlying Lawsuit case regarding the death of
Tommy Thurman, "but for" the assault and battery and
murder committed by the gunmen against Thurman, none of
the other claims would exist.
As a result, the substantial weight of cases from Texas confirms a lack of
coverage based on the Assault and Battery Exclusion, and
no duty to defend as a matter of law. 10
Vantage does not dispute
the claims asserted in the
Underlying Lawsuit arise from the assault and battery of Thurman,
but argues that the Assault and Battery Exclusion does not exclude
Vantage argues that
Atain's MSJ, Docket Entry No. 25, p. 12
Id. at 27
the structure of Atain' s policy language calls for
application of the doctrine of ejusdem generis.
this doctrine, Atain' s interpretation of the exclusion is
revealed to be improperly expansive.
light of this doctrine, application of the exclusion to
Separation of Insureds clause and ignore the legal
distinctions between Vantage and its co-Defendants in the
Underlying Lawsuit. 11
Atain replies that the Assault and Battery Exclusion is not
ambiguous, that the doctrine of ejusdem generis is not applicable,
and that the doctrine of ejusdem generis cannot be used to create
ambiguity in the Assault and Battery Exclusion. 12
and Battery Exclusion is
[o] n its face, [the] Assault and Battery exclusion is
subject to more than one reasonable interpretation. The
exclusion appears in almost all respects to be aimed at
excluding damages arising out of the conduct of the
insured or someone within the insured's control.
resulting from negligent hiring, supervision, or training
of the insured's employees. Likewise, Section 4 refers
to the conduct of the insured and its employees, patrons,
Vantage' s Response to Atain' s MSJ, Docket Entry No. 28, p. 7.
See also Vantage's MPSJ, Docket Entry No. 31, p. 7.
Atain Specialty Insurance Company's Reply to Vantage
Hospitality Group, Inc.'s Response to Atain Specialty Insurance
Company's Motion for Summary Judgment ( "Atain' s Reply"), Docket
Entry No. 3 0.
See also Atain Specialty Insurance Company's
Response to Vantage Hospitality Group, Inc.'s Motion for Partial
Summary Judgment ( "Atain' s Response to Vantage's MPSJ") , Docket
Entry No. 32, pp. 2-4 ~~ 2-7, and 8-9 ~~ 11-13; Atain Specialty
Insurance Company's Sur-Reply to Vantage Hospitality Group, Inc.'s
Reply Regarding Motion for Partial Summary Judgment ("Atain's SurReply to Vantage's MPSJ"), Docket Entry No. 34.
permissive users of the insured's premises.
refers to the conduct of the insured and its employees.
Notably, this focus on conduct within the insured's
control is clearly in harmony with the only other
exclusion included in Section IX, immediately following
the Assault and Battery exclusion which precludes
coverage for damage "expected or intended from the standpoint of the insured."
(ATAIN 0086) (emphasis added).
Thus, a reading of Section IX would indicate to a
reasonable insured that Atain seeks to preclude coverage
for conduct or activities over which the insured has some
control. This interpretation is also reasonable in light
of the basic assumption that a party only insures against
liability to which it might actually have some exposure.
In other words, it would not be reasonable to interpret
a policy as insuring against
in this case,
excluding) non-existent risks, because no reasonable
insured would contract and pay for such useless coverage.
In this case, the policy insures against the insured's
potential liability for certain property damage and
bodily injury. The Defendants in this case need not have
insured (and thus, Atain need not have excluded) against
liability for the actions over which they have absolutely
no control, because they would have no expectation of
exposure to such liability - thus, they need not have
insured against assault and battery by "any other person"
in the broad sense proffered by Atain.
But nonetheless, as evidenced by the parties'
divergent viewpoints, Section 1 (and by connection,
Section 2) and Section 4 of the Assault and Battery
exclusion introduce ambiguity to the exclusion by
including the phrase "any other person."
(emphasis added). From Atain's perspective, this phrase
must be read broadly as applying to the conduct of any
person, whether or not in the insured's control. First,
such a broad construction would transgress the basic
interpretation reasonable, it is not the only reasonable
interpretation, as explained above.
In this situation,
the Court is required to apply the rules of contract
Vantage' s Response to Atain' s MSJ, Docket Entry No. 28,
pp. 14-16. See also Vantage's MPSJ, Docket Entry No. 31, pp. 7-8
(continued ... )
Vantage's argument that the Assault and Battery Exclusion is
ambiguous rests on removing or ignoring phrases referring to "any
other person" in § 1, "any person" in § 2, and "other persons" in
§ 4 of the exclusion.
For example, Vantage argues that"[§] 1, and
by connection [§] 2, refers to the conduct of the insured and its
employees," 14 but fails to mention that § 1 actually refers to the
any employee of any Insured [,]
other person, " 15 and that § 2 actually refers to the conduct of "any
person in 1 [,]
above, " 16 thus referencing the "any other person"
language in § 1.
Vantage argues that § 4 refers to the conduct of
the insured and its employees and patrons, i.e., permissive users
of the insured's premises, 17 but fails to mention that § 4 also
( • • • continued)
("The Assault and Battery exclusion is susceptible to more than one
Namely, the exclusion appears in all
respects to apply only to conduct over which the insured has some
control. However, Atain seeks an interpretation of the exclusion
that would negate coverage for the conduct of 'any other person,'
in a vacuum; that is, conduct over which Vantage has no control.
Notably, this interpretation requires the nonsensical assumption
that Atain excluded coverage for an impossible risk - that Vantage
would be liable for the conduct of persons over whom Vantage has no
Vantage' s Response to Atain' s MSJ, Docket Entry No.
See also Vantage's MPSJ, Docket Entry No. 31, p. 8.
No. 1-1, p . 8 5 .
Exhibit A to Original Complaint,
Vantage's Response to Atain's MSJ, Docket Entry No.
p. 15. See also Vantage's MPSJ, Docket Entry No. 31, p. 8.
refers to the conduct of "other persons lawfully or otherwise on,
at or near the premises owned or occupied by the Insured. " 18
Courts are required to read all parts of an insurance policy
together and exercise caution not to isolate particular sections or
provisions from the policy as a whole.
Texas Industries, 486 F.3d
Courts are also required to avoid construing a policy to
render any portion of it meaningless.
See U.S. Metals,
Liberty Mutual Group, Inc., 490 S.W.3d 20, 23-24
interpretation that gives each word meaning is preferable to one
that renders one surplusage.").
See also Liberty Mutual Insurance
Co. v. American Employers Insurance Co., 556 S.W.2d 242, 245 (Tex.
("An interpretation that gives a reasonable meaning to all
provisions is preferable to one that leaves a portion of the policy
useless, inexplicable, or creates surplusage.").
The construction of the Assault and Battery Exclusion urged by
Vantage "is unreasonable because it effectively works an Amelia
Earhart disappearing act on the offending phrase."
Insurance Co. v. Last Days Evangelical Association, Inc., 783 F.2d
1234, 1238 (5th Cir. 1986)
This interpretation is not reasonable
because it fails to give any effect at all to the phrases "any
other person" found in
No. 1-1, p. 8 5.
1, "any person" found in
2, and "other
"A reasonable construction is one that
Exhibit A to Original Complaint,
writing, not one that strips the language of meaning altogether."
Since an ambiguity only exists if the contract language is
486 F.3d at 846,
and since the court does not find
Exclusion is not ambiguous.
The court's conclusion that the
Assault and Battery Exclusion is not ambiguous is corroborated by
the fact that Vantage has not cited and the court has not found any
person," or "other persons" are ambiguous when used in an assault
and battery exclusion, or that use of such phrases in a similar
context has ever been held to be limited to persons within an
Atain has cited several cases in
which Texas courts have held that language identical or nearly
identical to that found in the exclusion at issue here was not
ambiguous and precluded coverage for claims arising from bodily
injury suffered by an insured's patron from battery by unidentified
assailants on an insured's property . 19
International Insurance Co. Ltd. v. A-Mart, Civil Action No. H-071001, 2007 WL 3231430, *2 (S.D. Tex. October 30, 2007), the court
following policy language unambiguously excluded
Atain's MSJ, Docket Entry No. 25, pp. 17-28 ~~ 28-66; Atain's
Reply, Docket Entry No. 30, pp. 8-11 ~~ 7-9; Atain's Response to
Vantage's MPSJ, Docket Entry No. 32, pp. 4-7 ~~ 7-9; Atain's SurReply to Vantage's MPSJ, Docket Entry No. 34, pp. 2-4 ~~ 2-3.
coverage for claims arising from the shooting death of an invitee
to the insured's store:
"The coverage under this policy does not
apply to any claim, suit, cost or expense arising out of assault
and/or battery, or out of any act or omission in connection with
the prevention or suppression of such acts, whether caused by or at
the instigation or direction of any Insured or Insured's employees,
patrons, or any other person.
Nor does this insurance apply with
cha [r] ges
training, placement or supervision."
underlying lawsuit involved negligence claims asserted against an
insured ice hockey team following an assault on several patrons
that occurred on the team's property.
The insurance company filed
a declaratory judgment suit, arguing that it had no duty to defend
or indemnify the
The insurance policy at
provided that "bodily injuries or death alleged to have been caused
by ASSAULT AND/OR BATTERY shall
deemed an accident
occurrence under this Policy" and that coverage is not provided for
such injuries or deaths.
Id. at 130-32.
Like Vantage here, the
plaintiffs in the Underlying Lawsuit argued that the exclusion
applied only to acts of the insured and its employees, and not to
the acts of third parties.
The court rejected that argument and
concluded that the victim's injuries were not covered under the
Id. at 132 ("[I]n plain, simple language, the endorsement
. excludes coverage for bodily injuries or death alleged to
have been caused by assault and/or battery by anyone.").
In Garrison, 765 S.W.2d at 536, a patron of a restaurant was
by an unknown
The victim's wife brought suit against the restaurant,
and the restaurant
in turn sued the
insurance company seeking
reimbursement for any liability it incurred.
insurer filed suit seeking declaratory judgment that it had no duty
to defend or indemnify the restaurant because the claims asserted
in the underlying action all
and/or battery exclusion.
The exclusion at issue in Garrison
within the policy's assault
provided that "this policy excludes claims arising out of assault
and battery, whether caused by or at the direction of, the insured,
patrons or any cause whatsoever."
restaurant claimed that the exclusion did not apply because the
negligence not assault or battery.
Citing Tarrant County Ice
Sports, 662 S.W.2d at 131, and recognizing that "the exclusionary
language of the policy before us differs from the language before
exclusion applied to preclude the claims at issue from falling
within the scope of the policy because,
[t]he [plaintiffs in the underlying case] would never
have brought a lawsuit against [the restaurant] absent
the assault and battery committed by the unknown
The endorsement in the insurance policy
excludes claims arising
regardless of the cause.
Asserting that "[e]xclusions and words of limitation in an
insurance policy must be narrowly construed, " 20 Vantage argues that
Markel, 2007 WL 3231430; Tarrant County Ice Sports, 662 S.W.2d at
129; Garrison, 765 S.W.2d at 536; and other cases cited by Atain
are distinguishable either because the facts of those cases do not
invoke the "any other person" language at issue here or because the
policy language differs since the exclusions in those cases hinge
on causation of the assault and battery, while the Policy exclusion
at issue here hinges on who committed the assault and battery. 21
But Vantage has not cited any case in which a court found coverage
under similar circumstances,
guishing these decisions are not convincing.
Like the exclusions
at issue in Markel, 2007 WL 3231430; Tarrant County Ice Sports, 662
S.W.2d at 129; and Garrison,
Battery Exclusion at
injury arising out of
765 S.W.2d at 536,
"[a] ssaul t
the Assault and
whether or not
caused by or arising out of negligent, reckless or wanton conduct
of the Insured, the Insured's employees, patrons or other persons
Defendant Vantage Hospitality Group,
Inc.'s Reply to
Plaintiff Atain Specialty Insurance Company's Response to Vantage's
Partial Motion for Summary Judgment on Plaintiff's Duty to Defend
("Vantage's Reply in Support of MPSJ"), Docket Entry No. 33, p. 6
Id. at 1-5
lawfully or otherwise on, at or near the premises owned or occupied
or by any other person. " 22
by the Insured,
Garrison where the court recognized that the exclusionary language
of the policy before it differed from the
the court concludes
language before its
765 F.2d at 538.
identical to those at issue in Garrison.
Thurman, like the victim
in Garrison, was shot to death by unidentified assailants in the
parking lot outside the insureds' establishment.
As in Garrison,
the claims asserted in the Underlying Lawsuit involve negligence
and failure to warn arising out of the patron's shooting death.
Although the precise language of the assault
and/or battery exclusion in Garrison differs from the exclusion at
issue here, both exclude coverage for claims arising out of assault
or battery regardless of who perpetrated the assault or battery.
See Garrison, 765 S.W.2d at 537-38.
Just as none of the claims in
the underlying lawsuit in Garrison would have been brought absent
the shooting death, none of the claims in the lawsuit underlying
this action would have been brought absent Thurman's shooting in
the parking lot of the America's Best Value Inn.
S.W.2d at 538.
See Garrison, 765
Accordingly, the court concludes that the Assault
and Battery Exclusion in the Policy is not ambiguous, applies to
No. 1-1, p. 85.
Exhibit A to Original Complaint,
remove from coverage all claims asserted in the Underlying Lawsuit,
and precludes Atain's duty to defend against any of those claims.
The Rule of Ejusdem Generis Does Not Apply
Citing the rule of ejusdem generis -
a maxim of contract
interpretation meaning "of the same kind or class," Black's Law
Dictionary 594 (9th ed. 2009) - Vantage argues that this rule can
be applied to clarify potential ambiguities, that under this rule
1, 2, and 3 of the Assault and Battery Exclusion do not preclude
coverage, and that when read under this rule and the Separation of
Exclusion do not preclude coverage. 23
Atain argues that the rule
of ejusdem generis does not apply in this case. 24
The doctrine of ejusdem generis is a
rule of construction
connection with the designation of particular objects or classes of
Cooperative v. Midlothian Butane Gas Co., Inc., 111 S.W.3d 75, 81
(citing Carr v.
383 S.W.2d 383,
1964), and Cleveland v. United States, 67 S. Ct. 13 (1946)
the ejusdem generis rule of construction,
the general words are
Vantage's Response to Atain's MSJ, Docket Entry No. 28,
pp. 17-19. See also Vantage's MPSJ, Docket Entry No. 31, p. 8.
Atain's Reply, Docket Entry No. 30, p. 6
confined to the class and may not be used to enlarge it.'")).
"[t]he doctrine of ejusdem generis applies only when the contract
Hussong v. Schwan's Sales Enterprises,
S.W.2d 320, 325
(Tex. App. -Houston [1st Dist.]
1995, no writ).
The rule of ejusdem generis does not apply to contract construction
when, as in this case, the contract is not ambiguous.
Exclusion is not ambiguous,
the doctrine of ejusdem generis does
Atain Has No Duty to Indemnify
"In liability insurance policies generally, an insurer assumes
both the duty to indemnify the insured, that is, to pay all covered
claims and judgments against an insured, and the duty to defend."
300 S.W.3d at 743.
Under Texas law the duty to
141 S. W. 3d at 203.
analysis of the duty to defend is strictly limited by the eightcorners doctrine, the "facts actually established in the underlying
suit control the duty to indemnify."
Pine Oak Builders, Inc. v.
Great American Lloyds Insurance Co.,
279 S.W.3d 650,
Thus the duty-to-indemnify is generally not justiciable
until the underlying suit is concluded, unless "the same reasons
that negate the duty to defend likewise negate any possibility the
insurer will ever have a duty to indemnify."
363 F.3d at 529 (quoting Farmers Texas County Mutual Insurance Co.
955 S.W.2d 81,
Texas courts have
regularly held that if an assault and battery exclusion precludes
the duty to defend,
is also no duty to
American Western Home Insurance Co. v. Israel, 747 F. Supp. 2d 785,
(S.D. Tex. 2010)
(citing Century Surety Co. v. Glen Willows,
100 F.3d 952
See also Tarrant County Ice Sports, 662 S.W.2d at 129
and battery exclusion precluded duty to
defend or indemnify claims arising out of an assault on patrons of
an insured hockey team) .
Atain argues that it has no duty to indemnify Vantage or any
other defendant named in the Underlying Lawsuit because the Assault
and Battery Exclusion that negates the duty to defend also negates
any possibility that Atain will have a
Atain cites to Nautilus Insurance Co.
S. W. 2d at
566 F.3d 452, 458
(5th Cir. 2009), and Griffin,
("We now hold that
the duty to
justiciable before the insured's liability is determined in the
liability lawsuit when the insurer has no duty to defend and the
same reasons that negate the duty to defend likewise negate any
possibility the insurer will ever have a duty to indemnify.") . 25
Atain's MSJ, Docket Entry No. 25, pp. 27-28
Reply, Docket Entry No. 30, p. 17 ~ 26.
In Griffin an automobile liability insurance company sought a
declaratory judgment that it had no duty to defend or indemnify the
driver of a vehicle involved in a drive-by shooting.
S.W.2d at 82.
The relevant policy limited coverage to injury and
property damage resulting from an auto accident.
found that the term "auto accident" referred only to situations in
which one or more vehicles are
Id. at 83.
involved with another vehicle,
The court therefore held that the claims
fell outside the policy's coverage and that the insurer had no duty
plaintiff in the underlying action could never plead facts that
would transform the drive-by shooting into an auto accident, the
insurer had no duty to indemnify.
Id. at 84 ("[T]he same reasons
that negate the duty to defend likewise negate any possibility the
insurer will ever have a duty to indemnify.").
For the reasons stated in
the court has
contained in the Policy, Atain has no duty to defend the claims
asserted in the Underlying Lawsuit because those claims are not
underlying action in Griffin,
the plaintiffs in the Underlying
Lawsuit here can never plead facts that do not arise out of the
battery, see Garrison, 765 S.W.2d at 537, the court concludes that
indemnify the defendants in the Underlying Lawsuit for the claims
See Israel, 747 F. Supp. 2d at 787; Century Surety
Co., 924 F. Supp. at 77; Tarrant County Ice Sports, 662 S.W.2d at
the court concludes that Atain is entitled to
judgment as a matter of law that it has no duty to indemnify any of
Vantage's Motion for Partial Summary Judgment
Because for the reasons stated in
has concluded that Atain is entitled to summary judgment that it
has no duty to defend or to indemnify any of the defendants named
in the Underlying Lawsuit for any of the claims asserted therein,
Vantage's MPSJ that Atain has a duty to defend it in the Underlying
Lawsuit is moot.
Conclusions and Order
For the reasons explained in
III, above, the court concludes
that the Assault and Battery Exclusion bars coverage for the claims
asserted in the Underlying Lawsuit,
defend or to
that Atain has no duty to
indemnify the defendants
in the Underlying
Lawsuit, and that Atain is entitled to judgment as a matter of law
declaring that it has no duty to defend or indemnify any of the
defendants named in the Underlying Lawsuit.
Specialty Insurance Company's Motion for Summary Judgment (Docket
Entry No. 25) is GRANTED, and Defendant Vantage Hospitality Group,
Inc.'s Partial Motion for Summary Judgment on Plaintiff's Duty to
Defend (Docket Entry No. 31) is DENIED AS MOOT.
SIGNED at Houston, Texas, this 29th day of December, 2016.
UNITED STATES DISTRICT JUDGE
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