State Farm Fire & Casualty Company v. Kenney et al
ORDER GRANTING MOTION 27 FOR SUMMARY JUDGMENT. This matter is ORDERED stricken from the docket and judgment entered in favor of the Plaintiff. Signed by Chief Judge Gina M. Groh on 5/15/2015. (tlg)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF WEST VIRGINIA
STATE FARM FIRE & CASUALTY COMPANY,
Civil Action No.: 3:14-CV-99
DEREK KENNEY; TIFFANY WATTS;
EMILEE BRAGG; EMILY UNGER;
JENNIFER BRILL; ASHLEY COSNER;
CHERYL DUNHAM; KATRINA SCHULER;
AMANDA ZITTLE; JENNIFER TILLER;
and JANE DOES (1-15),
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
On this date, the above-styled matter came before the Court for consideration of the
Plaintiff’s Motion for Summary Judgment, [ECF 27], filed on February 12, 2015. The
Plaintiff, State Farm Fire & Casualty Company (“State Farm”), moves the Court to grant
summary judgment in its favor as to its Complaint for Declaratory Relief, filed on September
2, 2014. State Farm argues that it has no duty to defend or indemnify Defendant Derek
Kenney (“Kenney”) in connection with any of the causes of action filed against him in the
Circuit Court of Berkeley County, West Virginia (“Underlying Actions”). The other abovenamed Defendants are the plaintiffs in the Underlying Actions. Because the Court finds
that State Farm has no duty to defend or indemnify Kenney in connection with any of the
Underlying Actions, and as there is no genuine issue as to any material fact in that regard,
the Court GRANTS State Farm’s Motion for Summary Judgment.
Kenney has been named as a defendant in six lawsuits filed by the other abovenamed Defendants in the Circuit Court of Berkeley County, West Virginia. These suits
stem from similar incidents and each suit alleges a similar set of facts. The suits allege that
Kenney secretly filmed women while they were using a tanning salon in Martinsburg, West
Virginia. According to the allegations in the complaints, after the women entered one of the
salon’s tanning booths and were either partially or fully nude, Kenney filmed them through
gaps above or below the tanning booth walls. The complaints assert causes of action
against Kenney for invasion of privacy and intentional infliction of emotional distress.
State Farm filed a complaint for declaratory relief in this Court on September 2,
2014. To date, Kenney has failed to appear, plead, or otherwise defend against this action.
On February 12, 2015, State Farm moved for entry of default against Kenney, and for
summary judgment. On February 24, 2015, the Clerk entered default.
II. Standard of Review
Summary judgment is appropriate under Federal Rule of Civil Procedure 56 when
there is no genuine issue as to any material fact and the moving party is entitled to
judgment in its favor as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A genuine issue exists “if the evidence is such that a reasonable jury could return a verdict
for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Thus, the Court must conduct “the threshold inquiry of determining whether there is the
need for a trial–whether, in other words, there are any genuine factual issues that properly
can be resolved only by a finder of fact because they may reasonably be resolved in favor
of either party.” Id. at 250.
The party opposing summary judgment “must do more than simply show that there
is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). That is, once the movant has met its burden to
show an absence of material fact, the party opposing summary judgment must then come
forward with affidavits or other evidence demonstrating there is indeed a genuine issue for
trial. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 323-35; Anderson, 477 U.S. at 248. “If the
evidence is merely colorable, or is not significantly probative, summary judgment may be
granted.” Anderson, 477 U.S. at 249 (citations omitted).
The relationship between State Farm and Kenney was established by way of an
insurance policy (“the Policy”) that State Farm issued to Sean and Wanda Kenney. State
Farm argues that the Policy does not require it to defend or indemnify Derek Kenney under
West Virginia law because Kenney’s actions, for which he is now being sued, constituted
neither bodily injury nor property damage–two types of harm covered by the Policy.
Additionally, State Farm argues that Kenney’s actions were “intentional acts,” which are
excluded from coverage under the Policy.
The Policy provides that if a claim is made against an insured for damages “because
of bodily injury or property damage to which this coverage applies, caused by an
occurrence,” then State Farm will pay up to its limit in liability “for the damages for which
the insured is legally liable” and provide a defense to the insured. Under the terms of the
Policy, an occurrence means “an accident, including exposure to conditions,” which results
in bodily injury or property damage.
In the Policy, “bodily injury” is defined as “physical injury, sickness, or disease to
a person.” Excluded from the definition of bodily injury are “emotional distress, mental
anguish, humiliation, mental distress, mental injury, or any similar injury unless it arises out
of actual physical injury to some person.” “Property damage” is defined as “physical
damage to or destruction of tangible property, including loss of use of this property.”
Expressly excluded under the Policy is “coverage for bodily injury or property
damage: (1) which is either expected or intended by the insured; or (2) which is the result
of willful and malicious acts of the insured.”
State Farm argues that the provisions of the Policy excerpted above are clear and
unambiguous, and establish that there is no genuine issue of material fact as to whether
Kenney is entitled to coverage under the policy in connection with the Underlying Actions.
For the following reasons, the Court agrees and finds that State Farm has no duty to
defend or indemnify Kenney.
Pursuant to the terms of the Policy, State Farm would be required to defend or
indemnify Kenney only if the Underlying Actions sought damages stemming from bodily
injury or property damage. Upon review of the record and applicable West Virginia
precedent, the Court finds that the damages alleged in the Underlying Actions are not
covered by the Policy. In Smith v. Animal Urgent Care, Inc., 542 S.E.2d 827, 828 (W. Va.
2000), the Supreme Court of Appeals of West Virginia considered “whether a sexual
harassment claim that is limited to emotional harm which lacks any physical manifestation
can be said to constitute a ‘bodily injury’” for purposes of insurance indemnity. The court
held that mental or emotional harm that “lacks physical manifestation” does not fall within
a definition of bodily injury limited to “bodily injury, sickness, or disease.” Id. at 831. In the
instant case, bodily injury is defined as “physical injury, sickness, or disease to a person.”
Accordingly, the injuries alleged in the Underlying Actions do not constitute bodily injury
under the Policy. It is just as apparent that the Underlying Actions do not contain any
allegations that qualify under the Policy’s definition of property damage. Because the circuit
court plaintiffs’ claims of invasion of privacy and intentional infliction of emotional distress
do not constitute bodily injury or property damage, State Farm is not obligated to defend or
Furthermore, even if the plaintiffs in the Underlying Actions were seeking damages
for bodily injury or property damage, the Policy’s exclusion of coverage for injury or damage
that is either expected, intended, or the result of willful or malicious acts would obviate State
Farm’s obligations to Kenney. Indeed, State Farm contends that West Virginia law would
estop Kenney from claiming his conduct was not intentional, because he has already
pleaded guilty to criminal invasion of privacy in violation of Section 61-8-28 of the West
Virginia Code. That law makes it unlawful for a person to “knowingly visually portray another
person without that other person’s knowledge while that other person is fully or partially nude
and is in a place where a reasonable person would have an expectation of privacy.” W. Va.
Code § 61-8-28 (emphasis added).
Under West Virginia law, an insurance policyholder may be estopped from claiming
his or her conduct was not intentional when a related criminal conviction previously
established the policyholder’s intent. See Baber v. Fortner ex rel. Poe, 412 S.E.2d 814, 821
(W. Va. 1991) (finding that relitigation of the issue of a policyholder’s intent “under a lesser
civil standard” would be pointless, where a criminal jury had already found the policyholder
guilty of voluntary manslaughter, which established his intent to kill). In the instant case,
Kenney was not found guilty by a jury, but instead pleaded guilty; a distinction that the
Supreme Court of Appeals of West Virginia has found to be “of little consequence” when
evaluating estoppel. Leach v. Schlaegel, 447 S.E.2d 1, 4 (W. Va. 1994) (per curiam). The
Leach court held that a defendant who pleaded guilty to a battery charge was estopped from
later denying that battery in a civil proceeding. Id.
This Court has applied Leach to a declaratory judgment action brought by an insurer
and has reached the same conclusion. Erie Ins. Prop. & Cas. Co. v. Farrell, Civil Action No.
3:05-CV-21, 2006 WL 2560285, at *4 (N.D.W. Va. Sept. 5, 2006) (granting summary
judgment in favor of the plaintiff-insurer and finding that a defendant was estopped from
claiming he was entitled to coverage under the insurance policy because the defendant
previously pleaded guilty to joyriding).
Here, there is little doubt that Kenney acted
intentionally under West Virginia law. Regardless of that fact, Kenney’s plea of guilty to
criminal invasion of privacy sufficiently established his intent for purposes of the Policy’s
“intentional act” exclusion.
Accordingly, the Policy does not cover the damages alleged in the Underlying
Actions, for multiple reasons. As the Policy’s terms are clear and unambiguous, there is no
genuine issue as to any material fact before this Court. Therefore, State Farm is entitled to
summary judgment. State Farm does not have a duty to defend or indemnify Kenney in
connection with the Underlying Actions.
For the reasons stated above, the Court hereby ORDERS that the Plaintiff’s Motion
for Summary Judgment, [ECF 27], is GRANTED. This matter is ORDERED STRICKEN
from the active docket of this Court. The Clerk is DIRECTED, pursuant to Federal Rule of
Civil Procedure 58, to enter a separate order of judgment in favor of the Plaintiff.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.
DATED: May 15, 2015
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