Mt. Vernon Fire Insurance Company v. Dobbs et al
Filing
23
MEMORANDUM OPINION AND ORDER granting 22 plaintff's Motion for Summary Judgment. This civil action is DISMISSED and STRICKEN from the active docket of this Court. Clerk directed to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 5/31/12. (cc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MT. VERNON FIRE INSURANCE COMPANY,
Plaintiff,
v.
Civil Action No. 5:11CV92
(STAMP)
SHERRILL ROGER DOBBS,
ENOCH’S LLC, d/b/a TED’S TROPHY CLUB,
ENOCH EDWARD FISHER and JIMMY WORRLES,1
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
I.
Procedural History
On November 22, 2010, defendant Sherrill Roger Dobbs (“Dobbs”)
filed a complaint in the Circuit Court of Marshall County, West
Virginia alleging that on December 14, 2008, while patronizing
Ted’s Trophy Club, he was the victim of an unprovoked attack at the
hands of defendant Enoch Edward Fisher (“Fisher”) and defendant
Jimmy Worrles (“Worrles”), both of whom were agents of Enoch’s LLC,
d/b/a Ted’s Trophy Club.
On June 29, 2011, the plaintiff in this action, Mt. Vernon
Fire Insurance Company (“Mt. Vernon”), filed a complaint for
declaratory judgment, requesting that this Court declare that it
has no obligation or duty to provide any benefits, indemnification,
1
In the complaint filed in the Circuit Court of Marshall
County, West Virginia, defendant Jimmy Worrles’ name is spelled
“Worrels.” This Court spells the name as it appears in the style
of the complaint filed in this Court.
defense, or coverage for any of the defendants in the underlying
state court action.
Defendant Sherrill Roger Dobbs, through his
attorney, filed an answer to the complaint on August 11, 2011.
On February 10, 2012, pursuant to Rule 55(a) of the Federal
Rules of Civil Procedure, Mt. Vernon filed requests for entry of
default as to defendant Jimmy Worrles, defendant Enoch Edward
Fisher,
and
defendant
Enoch’s
LLC,
d/b/a
Ted’s
Trophy
Club.
Despite having been served with the summons and the complaint,
these
three
defendants
failed
to
plead
or
otherwise
defend.
Therefore, this Court directed the Clerk to enter their default on
March 5, 2012.
Mt. Vernon then filed a motion for summary judgment on March
29, 2012.
In support of this motion, the plaintiff argues: (1) it
has no duty to defend or indemnify the defendants from any claim
involving intentional acts; (2) it has no duty to defend or
indemnify the defendants with regard to any negligence claim
asserted in the underlying complaint; and (3) it has no duty to
indemnify the defendants with regard to any claim for punitive
damages asserted in the underlying complaint.
not
file
a
response
to
the
plaintiff’s
2
The defendants did
motion
for
summary
judgment.2
For the reasons set forth below, this Court finds that
the plaintiff’s motion for summary judgment must be granted.
II.
Facts
Ted’s Trophy Club is a bar located in Moundsville, West
Virginia and is owned by Enoch’s LLC.
Mt. Vernon issued a
commercial liability insurance policy to Enoch’s LLC, d/b/a Trophy
Club.3
On December 14, 2008, defendant Sherrill Roger Dobbs was a
patron of Ted’s Trophy Club, and while there, he purchased and
consumed alcohol. On November 22, 2010, Dobbs filed a complaint in
the Circuit Court of Marshall County alleging that on the subject
evening, he was assaulted by Enoch Edward Fisher and Jimmy Worrles.
In the underlying complaint, Dobbs alleged that Fisher and Worrles,
both of whom were agents of Enoch’s LLC, d/b/a Ted’s Trophy Club,
hit, punched, and kicked him, causing him to sustain various
injuries. (Compl. ¶¶ 37-38.) Dobbs also asserted that Enoch’s LLC
failed to provide a reasonably safe environment for him as a
business invitee.
Mt. Vernon is currently providing a defense to
Enoch’s LLC, d/b/a Trophy Club in the state court matter filed by
2
This Court notes that the defendants’ failure to respond to
the motion for summary judgment “does not fulfill the burdens
imposed on moving parties by Rule 56 . . . . Although the failure
of a party to respond to a summary judgment motion may leave
uncontroverted those facts established by the motion, the moving
party must still show that the uncontroverted facts entitle the
party to ‘a judgment as a matter of law.’” Custer v. Pan Am. Life
Ins. Co., 12 F.3d 410, 416 (4th Cir. 1993).
3
Policy No. CL2327648A.
3
Sherrill Roger Dobbs pursuant to a full reservation of rights.
Jimmy Worrles is not an insured under the subject policy.
III.
Applicable Law
Under Rule 56(c) of the Federal Rules of Civil Procedure,
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in
the record, including depositions, documents,
electronically stored information, affidavits
or
declarations,
stipulations
.
.
.
admissions, interrogatory answers, or other
materials; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine
dispute, or that an adverse party cannot
produce admissible evidence to support the
fact.
Fed. R. Civ. P. 56(c).
The party seeking summary judgment bears
the initial burden of showing the absence of any genuine issues of
material fact.
(1986).
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
“The burden then shifts to the nonmoving party to come
forward with facts sufficient to create a triable issue of fact.”
Temkin v. Frederick County Comm’rs, 945 F.2d 716, 718-19 (4th Cir.
1991), cert. denied, 502 U.S. 1095 (1992) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). However, as the
United States Supreme Court noted in Anderson, “Rule 56(e) itself
provides that a party opposing a properly supported motion for
summary judgment may not rest upon the mere allegation or denials
of his pleading, but must set forth specific facts showing that
there is a genuine issue for trial.”
4
Id. at 256.
“The inquiry
performed is 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; see also Charbonnages de France v.
Smith, 597 F.2d 406, 414 (4th Cir. 1979)(stating that summary
judgment “should be granted only in those cases where it is
perfectly clear that no issue of fact is involved and inquiry into
the facts is not desirable to clarify the application of the law.”
(citing Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th
Cir. 1950))).
In Celotex, the Court stated that “the plain language of Rule
56(c) mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to make a
showing
sufficient
to
establish
the
existence
of
an
element
essential to that party’s case, and on which that party will bear
the burden of proof at trial.”
Celotex, 477 U.S. at 322.
Summary
judgment is not appropriate until after the non-moving party has
had sufficient opportunity for discovery.
See Oksanen v. Page
Mem’l Hosp., 912 F.2d 73, 78 (4th Cir. 1990), cert. denied, 502
U.S. 1074 (1992). In reviewing the supported underlying facts, all
inferences must be viewed in the light most favorable to the party
opposing the motion.
See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
5
IV.
Discussion
In its motion for summary judgment, Mt. Vernon first argues
that it has no duty to defend or indemnify the defendants in
connection
with
intentional acts.
any
claim
resulting
from
the
defendants’
The insurance policy in this case, according to
the plaintiff, clearly provides that the coverage applies to bodily
injury and property damage only if, “[t]he ‘bodily injury’ or
‘property damage’ is caused by an ‘occurrence’ that takes place in
the ‘coverage territory.’”
(Compl. Ex. A at 1.)
The policy
defines “occurrence” as “an accident, including continuous or
repeated
exposure
conditions.”
to
substantially
(Compl. Ex. A at 14.)
the
same
general
harmful
In the state court action,
Dobbs alleged that his injuries were the proximate result of being
hit, kicked, and punched by Fisher and Worrles -- acts that Mt.
Vernon contends were intentional, not accidental.
¶¶ 36-37.)
(Dobbs’ Answer
Additionally, Mt. Vernon argues that the insurance
policy contains a specific exclusion for assault and battery and
that
the
alleged
attack
definition of “battery.”
on
Dobbs
fits
squarely
within
the
(Compl. Ex. A, Assault or Battery
Exclusion.) Mt. Vernon also highlights the fact that the insurance
policy excludes injuries resulting from “the failure to protect any
person while that person was in the care, custody or control of the
insured.”
(Compl. Ex. A, Assault or Battery Exclusion.)
This
language, argues the plaintiff, precludes any injuries alleged to
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have occurred as a result of Enoch’s LLC’s failure to provide a
reasonably safe environment.
This
Court
agrees
that
based
upon
the
language
of
the
insurance policy itself, Mt. Vernon has no duty to defend or
indemnify the defendants and that Mt. Vernon is entitled to
judgment as a matter of law.
As the plaintiff noted, this case is
strikingly similar to Evanston Ins. Co. v. Radcliff, No. 5:05-0230,
2006 WL 328147 (S.D. W. Va. Feb. 10, 2006). Evanston also involved
a
complaint
for
declaratory
judgment
regarding
an
insurance
company’s duty to defend and/or indemnify a bar and its agents in
an underlying personal injury case.
Id. at *1.
In Evanston, the
underlying complaint alleged that an agent of a Veterans of Foreign
Wars
(“VFW”)
Post
forcefully
removed
the
plaintiff
from
the
premises and proximately caused her to incur a broken shoulder and
other injuries.
Id.
The Evanston court first addressed the insurance policy’s
coverage for assault and battery. The court looked to the language
of the insurance policy, which covered bodily injury caused by an
“occurrence.”
Id. at *2.
Referring to the policy, the court
defined “occurrence” as an accident, and defined an accident as
“unusual, or unexpected events.”
Id.
(citing West Virginia Fire
& Cas. Co. v. Stanley, 602 S.E.2d 483, 492 (W. Va. 2004)).
The
court then held that “[a]ssault and battery both involve an
intentional act.
Because assault and battery are both intentional
7
acts by definition, the policy does not cover bodily injury
resulting from them.”
Id. at *3.
After noting the policy’s
specific exclusion for intentional acts, the court concluded that
“even if bodily injury resulting from an assault or battery
constituted an ‘occurrence’ triggering coverage under the policy,
it would be precluded by the policy’s exclusions.”
Id. at *3.
Like the insurance policy in Evanston, the policy in this case
clearly provides that the coverage applies to bodily injury and
property damage only if it is caused by an occurrence, which is to
say an accident. Clearly, the alleged assault upon Dobbs cannot be
construed
as
an
accident,
and
even
if
it
could,
the
policy
specifically excludes any claim based on assault or battery.4
Next, Mt. Vernon argues that is has no duty to defend or
indemnify the defendants with regard to any negligence claim
asserted in the underlying complaint.
Mt. Vernon asserts that the
insurance policy excludes from coverage any injury which may result
from
the
type
of
negligence
described
in
Dobbs’
complaint.
According to Mt. Vernon, even if the defendants did negligently
hit, punch, and kick Dobbs, these actions would still fall within
4
The policy states that the insurance does not apply to: “Any
claim, demand or ‘suit’ based on ‘assault’ or ‘battery’, or out of
any act or omission in connection with the prevention of
suppression of any ‘assault’ or ‘battery’, including the use of
reasonable force to protect persons or property, whether caused by
or at the instigation or direction of an insured, its ‘employees’,
agents, officers or directors, patrons or any other person.”
(Compl. Ex. A, Assault or Battery Exclusion.)
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the policy’s definition of battery and would be excluded from
coverage.
With regard to Dobbs’ assertion that Enoch’s LLC failed
to provide a reasonably safe environment, Mt. Vernon argues that it
is not required to provide a defense and indemnification because
the language of the policy excludes coverage for any injury
resulting from Enoch’s LLC’s “failure to protect any person,” and
therefore, there is no coverage for injuries resulting from an
alleged failure to provide a safe environment.
(Compl. Ex. A,
Assault or Battery Exclusion.)
This
Court
agrees
that
Dobbs
cannot
mischaracterize
intentional acts as negligence claims in order to avoid the
exclusions contained within the insurance policy.
Evanston, 2006
WL 328147, at *3 (“Under West Virginia law, a plaintiff cannot
bypass the intentional act exclusion by including negligence-type
allegations when the complaint essentially alleges intentional
conduct.”) (citing Smith v. Animal Urgent Care, Inc., 542 S.E.2d
827, 834 (W. Va. 2000)).
Dobbs alleged that Fisher and Worrles
“negligently, willfully, wantonly and recklessly engaged in an
altercation” with him. (Marshall County Compl. ¶ 6.) Although the
word
“negligently”
intentional assault.
is
present,
the
complaint
describes
an
Similarly, Dobbs’ “failure to provide a
reasonably safe environment” claim is solely based on allegations
that employees of Enoch’s LLC punched, hit, and kicked him.
Accordingly, this Court finds that the negligence claims presented
9
actually describe intentional behavior and are thereby precluded
from coverage under the policy.
Thus, Mt. Vernon has no duty to
defend or indemnify the defendants.
Lastly, Mt. Vernon asserts that it has no duty to indemnify
the defendants with regard to any claim for punitive damages
asserted in the underlying complaint.
The policy specifically
states:
Regardless of any other provision of this policy, this
policy does not apply to punitive or exemplary damages.
If a suit is brought against any insured, and falls
within the coverage provided by the policy, seeking both
compensatory damages (damages for economic loss and pain
and suffering) and punitive or exemplary damages (damages
as a means of punishment), no coverage shall be provided
by this policy for any costs, interest, defense costs or
damages attributable to punitive or exemplary damages.
(Compl. Ex. A Punitive or Exemplary Damages Exclusion.) Based upon
the language of the policy, this Court finds that Mt. Vernon has no
obligation or duty to reimburse the defendants for any judgment of
punitive
damages
which
may
be
rendered
against
them
in
the
underlying case.
V.
Conclusion
For the reasons stated above, the plaintiff’s motion for
summary judgment (ECF No. 22) is GRANTED. This Court declares that
Mt. Vernon Fire Insurance Company has no obligation or duty to
provide any benefits, indemnification, defense or coverage pursuant
to
Policy
No.
CL2327648A
for
any
of
the
defendants
herein,
generally and specifically for any claims made by Sherrill Roger
10
Dobbs in the Circuit Court of Marshall County, West Virginia and
for any injuries or damages arising out of the subject attack as
alleged to have occurred, on, or about, the 14th day of December
2008, at the premises of Enoch’s LLC, d/b/a Ted’s Trophy Club.
It
is further ORDERED that this case be DISMISSED and STRICKEN from
the active docket of this Court.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
DATED:
May 31, 2012
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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