Atain Specialty Insurance Company v. Sai Darshan Corp. d/b/a America's Best Value Inn et al

Filing 35

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

ENTERED

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ATAIN SPECIALTY INSURANCE
COMPANY,

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Plaintiff,
v.
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.,
Defendants.

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,
("Patel"),

Vantage

Hospitality

Doyle, Joseph Tippins,

Group,

Inc.

("Sai Darshan"),

Arvindbhai N.

Patel

("Vantage"),

Andre

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
a

declaration

Chapter

37

of

pursuant
the

Texas

to

28

Civil

U.S.C.

§

Practice

2201
&

and

Remedies

§

2202
Code

and
that

coverage does not exist under Policy No. CIP183811 ("the Policy")
issued to America's Best Value Inn/Sai Darshan for claims asserted

in a

state

court

lawsuit

styled Andre

Doyle,

Joseph Tippins,

Sherreka Tippins, Angela Tippins, Thomika Andrews, Rhonai Simmons,
Pamela Kennedy, Individually and a/n/f of J.T. and J.T. v. Vantage
Hospitality Group,
Value

Inn,

District

and

Court

("Underlying

Inc.,

Sai Darshan Corp.

Arvindbhai
of

Harris

Patel,

filed

County,

Texas,

Lawsuit") . 1

Pending

before

d/b/a America's Best
in

the

61st

Cause

No.

the

court

Judicial

2016-29571
is

Atain

Specialty Insurance Company's Motion for Summary Judgment ( "Atain' s
MSJ")

(Docket Entry No.

Group,

Inc.'s Partial Motion for Summary Judgment on Plaintiff's

25) ,

and Defendant Vantage Hospitality

Duty to Defend ("Vantage's MPSJ")
reasons

explained

below,

Atain's

(Docket Entry No. 31).
motion

will

be

For the

granted

and

Vantage's motion will be denied as moot.
I.

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
1.

The policy period was from 12/26/2013

The grant of coverage was as follows:

Insuring Agreement
a. We will pay those sums that the insured becomes
legally obligated to pay as damages because of

Plaintiffs'
Original
Petition
("Original
Petition"),
Exhibit B to Atain Specialty Insurance Company's Original Complaint
Seeking Declaratory and Other Relief ("Original Complaint") , Docket
Entry No. 1-2.
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.
-2-

"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
those damages.
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
Insurance; and
(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

The

Policy

contains

a

Combined

Coverage

and

Exclusion

Endorsement which in pertinent part provides:
IX.

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
following:
1.

Assault and Battery committed by any Insured, any
employee of any Insured or any other person;

2.

The failure to suppress or prevent Assault
Battery by any person in 1[,] above;

3.

[R]esulting from or allegedly related to the
negligent hiring, supervision or training of any
employee of the Insured; or

4.

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.

3

Id. at 98.
-3-

and

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:
1

a.

Expected Or Intended Injury

"Bodily Injury" or "property damage" expected or
intended from the standpoint of the insured. 4
On May 11
Value Inn.

1

2014,

Tommy Thurman checked into America

After checking in at the office,

1

S

Best

Thurman drove his

truck around to the parking lot in the area close to his room.

As

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
Underlying

Lawsuit

against

Vantage,

Sai

Darshan,

Patel. 6

and

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:

4

Id. at 85-86.

5

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'
Docket
Entry No. 281 p. 9.
1

1

6

0riginal Petition,
Entry No. 1-2.

1

)

,

Exhibit B to Original Complaint, Docket
-4-

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
robbed.
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,
train,

or

ensure

that

Sai

Darshan

and

Patel

were

providing

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
not

exist

under

the

Policy

due

to

the

Assault

and

Battery

Exclusion, and that Atain owes neither a duty to defend nor a duty
to indemnify any person or entity in the Underlying Lawsuit (Docket
Entry

No.

1).

On

July

8,

2016,

the

Individual

Defendants

(plaintiffs in the Underlying Lawsuit) filed their answer (Docket
Entry No. 9); on July 13, 2016, Sai Darshan and Patel filed their
answers

(Docket Entry Nos.

11 and 12);

7

Id. at 3 ~ 9, 5-10 ~~ 15-37.

8

Id. at 3-4 ~~ 10-11.
-5-

and on August 5,

2016,

Vantage filed its answer

(Docket Entry No.

2016,

stipulation of no coverage as to Sai

the court signed a

16).

On August 19,

Darshan d/b/a America's Best Value Inn and Patel,
those defendants without prejudice
September 6,

2016,

and dismissed

(Docket Entry No.

20).

On

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.

31)

that

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.
II.

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.
material

facts

are

Fed. R. Civ. P. 56(a).

"genuine"

if

the

evidence

Disputes about
is

such

that

a

reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2511 (1986).

The

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,
showing

sufficient

to

against a party who fails to make a

establish
-6-

the

existence

of

an

element

essential to that party's case, and on which that party will bear
the burden of proof at trial."
S.

Ct.

"must

2548,

2552

(1986) .

Celotex Corp.

v.

Catrett,

106

A party moving for summary judgment

'demonstrate the absence of

a

genuine

issue of material

fact,' but need not negate the elements of the nonmovant's case."
Little v.
(en bane),

Liquid Air Corp.,
(quoting Celotex,

37 F.3d 1069,
106 S.

Ct.

1075

(5th Cir.

at 2553-2554).

1994)

Factual

controversies are to be resolved in favor of the nonmovant,
only

when

both

contradictory facts."

parties

have

submitted

Little, 37 F.3d at 1075.

cross-motions for summary judgment,

evidence

"but
of

"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

298

(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

(2005)

("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.").
III.

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
-7-

Battery Exclusion contained in the Policy excludes coverage for all
of the claims asserted against all of the defendants named in the
Underlying Lawsuit.
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,

2016,

yet

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.

Tex .

R.

7.3

(2 0 0 0 ) .

Local Rule 7.4 provides:
Failure to respond will be taken as a representation of
no opposition. Responses to motions
A.

Must be filed by the submission day;

B.

Must be written;

C.

Must include or be accompanied by authority; and

D.

Must be accompanied by a
denying the relief sought.

-8-

separate

form order

S . D . Tex . R . 7 . 4 ( 2 0 0 0 ) .
court

takes

the

In accordance with Local Rule 7.4, the

Individual

Defendants'

failure

to

respond

to

Atain's MSJ as a representation of no opposition to Atain's summary
judgment evidence.

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.
See

John v.

State

of

Louisiana

(Board

of

Trustees

for

Colleges and Universities), 757 F.2d 698, 708 (5th Cir. 1985)

State
(when

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
v.

MBank Dallas,

843

F.2d 172,

174

(5th Cir.

1988)

(when the

nonmovant fails to respond to a motion for summary judgment, the
court

does

not

err

by

granting

the

motion

when

the

movant's

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.

-9-

A.

Principles of Insurance Contract Construction

In diversity cases federal courts must apply the substantive
law of the forum state.
817 (1938).

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)).

Texas

rules of contract construction require courts to "give effect to
all

contractual

meaningless."

provisions

that

none

will

be

rendered

Texas Industries, 486 F.3d at 846 (citing American

Manufacturers Mutual Ins.
(Tex. 2 0 0 3) ) .

so

Co.

v.

Schaefer,

124 S.W.3d 154,

157

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."'
ambiguity

does

not

Texas Industries, 486 F.3d at 846.

arise

conflicting interpretations.
contract

language

interpretations.

is

simply
Id.

the

parties

offer

An ambiguity exists only if the

susceptible
When an

because

An

to

two

or

more

reasonable

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.'"

Id.

(quoting Kelly Associates, Ltd. v. Aetna Casualty & Surety Co., 681
-10-

S.W.2d 593,

596

(Tex.

1984)

(this rule is

'"especially so when

dealing with exceptions and words of limitation'")).

See also

Utica National Insurance Co. of Texas v. American Indemnity Co.,
141 S.W.3d 198,

202

(Tex.

2004)

(When faced with more than one

reasonable interpretation of a policy exclusion, the court "'must
adopt

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.'")).
B.

Atain's Motion for Summary Judgment

1.

Atain Has No Duty to Defend
(a)

Applicable Law

An insurer in a liability insurance policy assumes two duties:
( 1)

to defend the

insured against covered lawsuits and

( 2)

to

indemnify the insured against all covered claims and judgments.
D. R.

Horton-Texas,

Ltd.

Ltd., 300 S.W.3d 740,

v.

743

Markel

International

(Tex. 2009).

Insurance Co.,

The duties to defend and

indemnify are distinct, and one may exist without the other.

Id.

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.
Service,

22

F.3d

88,

Gulf States Insurance Co. v. Alamo Carriage
90

(5th Cir.

1994)

i

Fidelity

&

Guaranty

Insurance Underwriters, Inc. v. McManus, 633 S.W.2d 787, 788 (Tex.
1982) .

Texas

follows

the

"eight-corners
-11-

rule"

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,
ordinarily not

material

to

(Tex. 2006).

even those easily ascertained,
the

determination,

and

are

allegations

against the insured are liberally construed in favor of coverage.
Id.

"If a petition does not allege facts within the scope of

coverage,

an insurer is not

against its insured."
876 S.W.2d 842,

848

legally required to defend a

suit

American Physicians Ins. Exchange v. Garcia,
(Tex.

1994).

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).

The insured

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.

Id.

Doubts regarding the duty to

defend are resolved in favor of the duty.
(b)
Atain

Id.

Analysis

does

not

dispute

that

the

claims

asserted

in

the

Underlying Lawsuit are potentially within the Policy's coverage,
-12-

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
shooting,

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
Reinsurance,

Inc.,

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
negligence.
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

that

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
coverage

for

the

claims

because

the

exclusion

Vantage argues that

9

Atain's MSJ, Docket Entry No. 25, p. 12

10

Id. at 27

~~

63-64.
-13-

~

14.

is

ambiguous.

the structure of Atain' s policy language calls for
application of the doctrine of ejusdem generis.
Under
this doctrine, Atain' s interpretation of the exclusion is
revealed to be improperly expansive.
Furthermore, in
light of this doctrine, application of the exclusion to
Vantage
would
improperly
contravene
the
policy's
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
{1)

Vantage

argues

The Assault
Ambiguous

that

and

the Assault

Battery

Exclusion

Is

Not

and Battery Exclusion is

ambiguous because
[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.
For
example,
Section 3
specifically excludes
damages
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,

11

Vantage' s Response to Atain' s MSJ, Docket Entry No. 28, p. 7.
See also Vantage's MPSJ, Docket Entry No. 31, p. 7.
12

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.
-14-

permissive users of the insured's premises.
Section 1
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
(or,
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."
(ATAIN 0085)
(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
tenet
of
policy
interpretation
requiring
narrow
interpretation
of
exclusionary
language.
More
importantly,
even were
this
court
to
find this
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
construction. 13

13

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 ... )
-15-

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
conduct of

"any Insured,

any employee of any Insured [,]

or any

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

13

( • • • continued)
("The Assault and Battery exclusion is susceptible to more than one
reasonable interpretation.
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
control.").

14

p. 15.

Vantage' s Response to Atain' s MSJ, Docket Entry No.
See also Vantage's MPSJ, Docket Entry No. 31, p. 8.

15

The Policy,
No. 1-1, p . 8 5 .

Exhibit A to Original Complaint,

28,

Docket Entry

16Id.

17

Vantage's Response to Atain's MSJ, Docket Entry No.
p. 15. See also Vantage's MPSJ, Docket Entry No. 31, p. 8.
-16-

28,

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.
at 846.

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

Inc. v.

(Tex. 2016)

("An

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.
1977)

("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."

Ideal Mutual

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
persons"

found in

gives meaning

18

to

The Policy,
No. 1-1, p. 8 5.

§

4.

the

§

1, "any person" found in

§

2, and "other

"A reasonable construction is one that
disputed

language

in

the

context

Exhibit A to Original Complaint,
-17-

of

the

Docket Entry

writing, not one that strips the language of meaning altogether."
Id.

Since an ambiguity only exists if the contract language is

susceptible

to

Industries,

486 F.3d at 846,

Vantage's
reasonable,

two

or

more

interpretation of
the

court

reasonable

Texas

and since the court does not find
the

concludes

Exclusion is not ambiguous.

interpretations,

Assault
that

and

the

Battery Exclusion

Assault

and

Battery

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
authority

holding

that

the

phrases

"any

other

person,"

"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
insured's control.

Moreover,

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

For example,

in Markel

International Insurance Co. Ltd. v. A-Mart, Civil Action No. H-071001, 2007 WL 3231430, *2 (S.D. Tex. October 30, 2007), the court
held that

the

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.
19

-18-

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

respect

allegations

to

any

cha [r] ges

or

of

negligent

hiring,

training, placement or supervision."
In

Tarrant

County

Ice

Sports,

662

S.W.2d

at

131,

the

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

insured team.

The insurance policy at

issue

provided that "bodily injuries or death alleged to have been caused
by ASSAULT AND/OR BATTERY shall

not

be

deemed an accident

or

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
policy.

Id. at 132 ("[I]n plain, simple language, the endorsement

-19-

. 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
shot

by an unknown

restaurant.

assailant

in

the

parking

lot

outside

the

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.

Id.

at 537.

The

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

fell

and/or battery exclusion.

The exclusion at issue in Garrison

Id.

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,
his/her employee,

patrons or any cause whatsoever."

The

restaurant claimed that the exclusion did not apply because the
claims

asserted

in

the

underlying

negligence not assault or battery.

lawsuit

Id.

were

all

based

on

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
our

sister

court,"

id.

at

538,

the

court

concluded

that

the

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
assailant.
The endorsement in the insurance policy
-20-

excludes claims arising
regardless of the cause.

out

of

assault

and

battery

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,

and Vantage's

guishing these decisions are not convincing.

reasons

for

distin-

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

issue

injury arising out of

765 S.W.2d at 536,
here

"[a] ssaul t

excludes
or

the Assault and

from

coverage bodily

[b] attery,

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

20

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
~ 4.
21

Id. at 1-5

~~

1-3.
-21-

lawfully or otherwise on, at or near the premises owned or occupied
or by any other person. " 22

by the Insured,

Accordingly,

as in

Garrison where the court recognized that the exclusionary language
of the policy before it differed from the
sister courts,

the court concludes

without distinction."
The

facts

that

language before its

"this

is a

difference

765 F.2d at 538.

alleged

in

the

Underlying

identical to those at issue in Garrison.

Lawsuit

are

nearly

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.
See id.

at 537.

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

22

The Policy,
No. 1-1, p. 85.

Exhibit A to Original Complaint,
-22-

Docket Entry

remove from coverage all claims asserted in the Underlying Lawsuit,
and precludes Atain's duty to defend against any of those claims.
(2}

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
Insureds

Clause,

2,

§§

3,

and

4

of

Exclusion do not preclude coverage. 23

the

Assault

and

Battery

Atain argues that the rule

of ejusdem generis does not apply in this case. 24
The doctrine of ejusdem generis is a
providing

that

"when

words

of

a

general

rule of construction
nature

are

used

in

connection with the designation of particular objects or classes of
persons

or

restricted

things,

the

to

particular

the

meaning

of

the

general

words

will

Hilco

designation."

be

Electric

Cooperative v. Midlothian Butane Gas Co., Inc., 111 S.W.3d 75, 81
(Tex.

2003)

(citing Carr v.

Rogers,

383 S.W.2d 383,

387

1964), and Cleveland v. United States, 67 S. Ct. 13 (1946)
the ejusdem generis rule of construction,

(Tex.

('"Under

the general words are

23

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.
24

Atain's Reply, Docket Entry No. 30, p. 6
-23-

~

2.

confined to the class and may not be used to enlarge it.'")).

But

"[t]he doctrine of ejusdem generis applies only when the contract
is ambiguous."

Hussong v. Schwan's Sales Enterprises,

S.W.2d 320, 325

(Tex. App. -Houston [1st Dist.]

Inc.,

896

1995, no writ).

The rule of ejusdem generis does not apply to contract construction
when, as in this case, the contract is not ambiguous.

Id.

the

and Battery

court

has

already concluded

Exclusion is not ambiguous,

that

the

Assault

Because

the doctrine of ejusdem generis does

not apply.
2.

Atain Has No Duty to Indemnify
(a)

Applicable Law

"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."
Horton-Texas,
defend
duties."

and

300 S.W.3d at 743.

the

duty

to

Utica National

Under Texas law the duty to

indemnify
Insurance,

"are

distinct

and

separate

141 S. W. 3d at 203.

While

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,

2009) .

656

(Tex.

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."
-24-

Northfield Insurance,

363 F.3d at 529 (quoting Farmers Texas County Mutual Insurance Co.
v.

Griffin,

955 S.W.2d 81,

84

(Tex.

1997)).

Texas courts have

regularly held that if an assault and battery exclusion precludes
the duty to defend,

there

is also no duty to

indemnify.

See

American Western Home Insurance Co. v. Israel, 747 F. Supp. 2d 785,
793

(S.D. Tex. 2010)

Inc.,

924 F.

Cir. 1996)).
(holding

Supp.

(citing Century Surety Co. v. Glen Willows,

76,

77

(S.D. Tex.),

aff'd,

100 F.3d 952

(5th

See also Tarrant County Ice Sports, 662 S.W.2d at 129

that

assault

and battery exclusion precluded duty to

defend or indemnify claims arising out of an assault on patrons of
an insured hockey team) .
(b)

Analysis

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
support,

Atain cites to Nautilus Insurance Co.

Apartments Ltd.,
955

duty to

S. W. 2d at

84

566 F.3d 452, 458

indemnify.
v.

For

Country Oaks

(5th Cir. 2009), and Griffin,

("We now hold that

the duty to

indemnify is

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
25

Atain's MSJ, Docket Entry No. 25, pp. 27-28
Reply, Docket Entry No. 30, p. 17 ~ 26.
-25-

~~

65-66i Atain's

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.

Griffin, 955

The relevant policy limited coverage to injury and

property damage resulting from an auto accident.

Id.

The court

found that the term "auto accident" referred only to situations in
which one or more vehicles are
person,

or

shootings.

object,

and

Id. at 83.

involved with another vehicle,

therefore

did

not

include

drive-by

The court therefore held that the claims

fell outside the policy's coverage and that the insurer had no duty
to

defend.

Id.

The

court

also

concluded

that

because

the

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
concluded

that

pursuant

to

III.B.1,

§

the

Assault

above,
and

the court has

Battery

Exclusion

contained in the Policy, Atain has no duty to defend the claims
asserted in the Underlying Lawsuit because those claims are not
covered

by

the

Policy.

Because

underlying action in Griffin,

like

the

plaintiff

in

the

the plaintiffs in the Underlying

Lawsuit here can never plead facts that do not arise out of the
May

11,

2014,

shooting

death

of

-26-

Thurman

which

constitutes

a

battery, see Garrison, 765 S.W.2d at 537, the court concludes that
there

is

no

possibility

that

Atain will

ever have

a

duty

to

indemnify the defendants in the Underlying Lawsuit for the claims
asserted there.

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
129.

Accordingly,

the court concludes that Atain is entitled to

judgment as a matter of law that it has no duty to indemnify any of
the defendants.
C.

Vantage's Motion for Partial Summary Judgment
Because for the reasons stated in

§

III.B, above,

the court

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.
IV.

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

named

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.

-27-

Accordingly,

Atain

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

-28-