Capitol Specialty Ins. Corp. v. PTAV, Inc.
Capitol Specialty Ins. Corp. v. PTAV, Inc.
Opinion of the Court
THOMAS W. THRASH, JR., United States District Judge *1332This is a declaratory judgment action regarding an insurer's duty to defend and indemnify. It is before the Court on the Defendant Capitol Specialty Insurance Corp.'s Motion for Summary Judgment [Doc. 34], and the Defendant RJV Corp.'s Motion to Join Co-Defendants' Opposition Brief [Doc. 37] and for Summary Judgment as to RJV's Cross Claim [Doc. 38]. For the following reasons, Capitol's Motion for Summary Judgment [Doc. 34] is GRANTED, RJV's Motion to Join Co-Defendants' Opposition Brief [Doc. 37] is GRANTED, and RJV's Motion for Summary Judgment [Doc. 38] is GRANTED in part and DENIED in part.
I. Background
On April 4, 2015, the Defendant P.M. was drugged and abducted by four men from a parking lot outside of the businesses known as Red Martini, Moondogs, and Hole in the Wall.
Eventually, the men did agree to take her home, but only if the men drove her and if she agreed to pay them $10,000 in cash.
This declaratory judgment action grows out of a tort case P.M. and her husband D.M. subsequently filed against the property and business owners of the three businesses located around the parking lot where she was abducted. Among these defendants were PTAV, which owns and operates *1333the restaurant Red Martini, and RJV, which owns the property.
In 2003, RJV leased the property located at 3179 Peachtree Road to Peachtree Tavern, Inc.
After P.M. and D.M. filed their tort suit in Georgia state court, Capitol filed this action on March 28, 2017, seeking a declaratory judgment stating that it has no duty to defend or indemnify PTAV or RJV in the underlying suit. PTAV did not answer the Complaint, and the Clerk entered a default. Meanwhile, RJV did answer the Complaint, and also filed a crossclaim against PTAV, seeking a declaratory judgment that PTAV owes a duty to defend or indemnify RJV in the underlying suit. Capitol and RJV now move separately for summary judgment.
II. Legal Standard
Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law.
III. Discussion
A. Capitol's Motion for Summary Judgment
Capitol seeks a declaration from this Court that it has no duty to defend or indemnify RJV in the underlying lawsuit because P.M. and D.M.'s allegations against RJV are explicitly excluded under the policy.
"An insurer's duty to defend," meanwhile, "is broader than its duty to indemnify."
Generally speaking, an insurer's duty to defend is determined by "compar[ing] the allegations of the underlying complaint against the provisions of the policy," and an insurer "can rely solely on the allegations contained within the complaint to establish that a policy exclusion precludes coverage."
Under the policy at issue in this case, Capitol agreed to cover PTAV for its liability for "damages because of 'bodily injury' ... [and] 'personal and advertising injury.' "
This insurance does not apply to, nor shall [Capitol] have a duty to defend, any claim or "suit" seeking damages or expenses due to "bodily injury," ... [or] "personal and advertising injury" ...
*1335arising out of, resulting from, or in connection with any of the following acts or omissions regardless of their sequence or any concurring causes:
a. "Assault or battery", whether or not caused or committed by or at the instruction of, or at the direction of or arising out of the negligence of [Ptav], any insured, any person or legal entity, or any causes whatsoever;
b. The suppression or prevention of, or the failure to suppress or prevent "assault or battery" by [Ptav], any insured, or any person or legal entity;
c. The failure by [Ptav], any insured, or any legal entity to provide an environment safe from "assault or battery", including but not limited to the failure to provide adequate security, or the failure to warn of the dangers of the environment which could contribute to "assault or battery" or failure to maintain the premises by [Ptav], any insured or any person or legal entity;
d. The negligent employment, investigation, hiring, supervision, training, retention, or any other employment related practice by any insured or any person or legal entity, including but not limited to contractors or subcontractors;
....
g. The reporting to the proper authorities or failure to do so by [Ptav], any insured, or any person or legal entity;
....31
The policy defines "Assault or battery" to mean:
a. Assault, including sexual abuse, sexual assault, intimidation, sexual harassment, verbal abuse, and any threatened harmful or offensive contact between two or more persons, whether or not caused or committed by or at the instruction of, or at the direction of, or arising out of the negligence of [Ptav], any insured, any legal entity, or any causes whatsoever, regardless of fault or intent; and b. Battery, including sexual abuse, sexual battery, sexual molestation, any physical altercation and any actual harmful or offensive contact between two or more persons, whether or not caused or committed by or at the instructions of, or at the direction of, or arising out of the negligence of, [Ptav], any insured, any legal entity, or any causes whatsoever, regardless of fault or intent.32
Lastly, the policy also excludes punitive, exemplary, or statutory damages, along with fines, fees or penalties.
P.M. and D.M.'s allegations in the underlying complaint fall squarely within these exclusions. The underlying complaint asserts five causes of action against RJV and PTAV: (1) negligence; (2) nuisance; (3) loss of consortium; (4) punitive damages; and (5) expenses of litigation.
P.M. and D.M., however, argue that the "arise out of" language in the exclusion should be interpreted narrowly. In the context of exclusions, Georgia courts generally *1336"interpreted the phrase 'arising out of' more narrowly, applying the 'but for' test traditionally used to determine cause-in-fact for tort claims."
But this argument is flawed for two reasons. First, the three cases they cite in support of this interpretation are easily distinguishable from the case at hand. All three cases involve policy exclusions which are much more narrow than the policy exclusion in this case. In Barrett v. National Union Fire Ins. , the policy stated that it would not apply to "any liability arising out of the actual or threatened discharge ... of Pollutants anywhere in the world."
All of the exclusions in these cases only included the phrase "arising out of." By contrast, the exclusion in this case is much more broad, excluding any injuries "arising out of, resulting from, or in connection with " an assault or battery.
Second, even if the Court were to adopt the narrow interpretation put forth in cases like Barrett , the claims against RJV and PTAV would still be excluded under the policy. In their response brief, P.M. and D.M. argue that their claims should not be excluded because they do not "arise solely from an assault or battery."
Because P.M. and D.M.'s claims both arise from and are connected with an assault *1337and battery, namely P.M.'s abduction and sexual assault, the claims are excluded under the policy and Capitol has no duty to defend RJV in the underlying litigation. It also follows logically that, because the claims are excluded, there is no situation under which Capitol would be required to indemnify RJV. Therefore, the Court finds that Capitol is also entitled to summary judgment on its declaratory claims against RJV.
B. RJV's Motion for Summary Judgment on its Crossclaim
Separately, RJV moves for summary judgment on its crossclaim against PTAV. In its answer and crossclaim, RJV seeks a declaration that PTAV owes a duty to defend and indemnify RJV in the underlying litigation based on certain provisions of the Lease Agreement between them. "As a general rule a party may contract away liability to the other party for the consequences of his own negligence without contravening public policy ... except when such an agreement is prohibited by statute...."
Paragraph 9 of the Lease Agreement between RJV and PTAV requires PTAV to defend and indemnify RJV in certain situations, stating in relevant part:
Lessee shall indemnify and hold harmless Lessor from and against any and all losses, damages, liabilities and claims occasioned by, and arising or resulting from or growing out of Lessee's use of the premises, or from the conduct of Lessee's business, or from any activity, work or things done, permitted or suffered by the lessee in or about the leased premises.... In case of any action or proceeding be brought against Lessor by reason of any such claim, Lessee, upon notice from Lessor, shall defend the same at Lessee's expense by counsel satisfactory to Lessor.
Lessee agrees that Lessee, as material part of the consideration to Lessor, assumes all risk of damage to property or injury to persons, in or about the Premises and that the Lessor shall not be liable for injury to ... invitees, or customers....46
The unambiguous language of the Lease Agreement makes clear that PTAV has a duty to defend RJV for any injuries "arising or resulting from or growing out of Lessee's use of the premises...." This is similar to an insurance contract, as it allocates risk among the parties for consideration. But unlike the exclusionary provision in the Capitol policy, this is more akin to a coverage provision, in which PTAV is agreeing to cover the costs of certain types of liabilities.
Georgia courts read the phrase "arising out of" much more broadly with regard to coverage provisions than exclusionary provisions.
The facts of this case make clear that P.M.'s claims do arise out of PTAV's operation of Red Martini as a nightclub and restaurant. P.M. was a patron of Red Martini immediately prior to her abduction, she was drugged prior to her abduction, and she was abducted in the parking lot immediately adjacent to Red Martini.
As to its duty to indemnify RJV, however, it is too soon to say. While PTAV agreed to generally indemnify RJV, the Lease Agreement also states that PTAV will not indemnify RJV for any injuries which are "solely caused by the willful misconduct of" RJV.
IV. Conclusion
For the reasons stated above, Capitol's Motion for Summary Judgment [Doc. 34] is GRANTED, RJV's Motion to Join Co-Defendants' Opposition Brief [Doc. 37] is GRANTED, and RJV's Motion for Summary Judgment [Doc. 38] is GRANTED in part and DENIED in part. The remainder of this case regarding PTAV's duty to indemnify RJV is hereby DISMISSED WITHOUT PREJUDICE as premature.
SO ORDERED, this 6th day of August, 2018.
Capitol's Statement of Undisputed Material Facts ¶ 4 (hereinafter "Capitol's SMF").
Defs. P.M. and D.M.'s Statement of Additional Undisputed Material Facts ¶ 3 (hereinafter "P.M. and D.M.'s SAMF").
Id. at ¶ 4.
Id. at ¶ 5.
Id. at ¶ 6.
Id. at ¶ 8.
Id. at ¶ 9.
Id. at ¶ 10.
Id. at ¶ 12.
RJV's SMF ¶ 1.
Id. at ¶¶ 2-3.
Id. at ¶¶ 4-5.
Fed. R. Civ. P. 56(a).
Adickes v. S.H. Kress & Co. ,
Celotex Corp. v. Catrett ,
Anderson v. Liberty Lobby, Inc. ,
Capitol also seeks a declaration against PTAV. Because PTAV never answered the Complaint, the Court grants Capitol's Motion for a Default Judgment against PTAV.
Elan Pharm. Research Corp. v. Emp'rs Ins. of Wausau ,
Atl. Cas. Ins. Co. v. GMC Concrete Co. , No. CIV.A. 07-0563WSB,
Western Heritage Ins. Co. v. River Entertainment ,
Shafe v. Am. States Ins. Co. ,
Elan Pharm. ,
Travelers Property Cas. Co. of America v. Kansas City Landsmen, L.L.C. ,
HDI-Gerling Am. Ins. Co. v. Morrison Homes, Inc.
Travelers ,
Colonial Oil Indus. Inc. v. Underwriters Subscribing to Policy Nos. TO31504670 & TO31504671 ,
Morrison Homes ,
Dillard House ,
Capitol's SMF ¶¶ 21-22.
Id. at ¶ 23.
Id. at ¶ 24.
Id. at ¶ 25.
Id. at ¶ 6.
Barrett v. National Union Fire Ins. Co. of Pittsburgh ,
Eady v. Capitol Indem. Corp. ,
Cotton States Mut. Ins. Co. v. Crosby ,
Capitol's SMF ¶ 23 (emphasis added).
Defs. P.M. and D.M.'s Resp. to RJV's Mot. for Summ. J., at 11 (emphasis added).
Eady ,
See
Lanier At McEver, L.P. v. Planners and Engineers Collaborative, Inc. ,
See World Championship Wrestling, Inc. v. City of Macon ,
RJV's SMF ¶ 4.
See Barrett ,
BBL-McCarthy, LLC v. Baldwin Paving Co. ,
P.M. and D.M.'s SAMF ¶ 3; RJV's Reply to Mot. for Summ. J., Ex. A, ¶ 22 [Doc. 45-1].
RJV's SMF ¶ 6.
Atl. Cas. Ins. Co. v. GMC Concrete Co. , No. CIV.A. 07-0563WSB,
Reference
- Full Case Name
- CAPITOL SPECIALTY INSURANCE CORPORATION v. PTAV, INC.
- Cited By
- 2 cases
- Status
- Published