Christopher Archie v. Acceptance Indemnity Ins Co.

507 F. App'x 451
CourtCourt of Appeals for the Fifth Circuit
DecidedJanuary 15, 2013
Docket12-60419
StatusUnpublished
Cited by3 cases

This text of 507 F. App'x 451 (Christopher Archie v. Acceptance Indemnity Ins Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Christopher Archie v. Acceptance Indemnity Ins Co., 507 F. App'x 451 (5th Cir. 2013).

Opinion

PER CURIAM: *

Plaintiff-Appellant Christopher Archie was injured during a shooting at a night club, and won a suit against the night club, the night club owner, and the security-guard who shot him. Archie then filed the present' declaratory action against the night club’s insurance carrier, Acceptance Indemnity Insurance Co. (“Acceptance Indemnity”), which had denied coverage of Archie’s injury. The district court granted summary judgment in favor of Acceptance Indemnity. Archie now appeals. We AFFIRM the district court’s judgment.

FACTS AND PROCEEDINGS

On January 29, 2003, Archie was in Club Focus, a night club in Itta Bena, Mississippi that was owned by Rosie Meeks Brown. Johnny King, d/b/a King Security, was the security guard on duty at Club Focus that evening. Another club patron, Alonzo Hemphill, fired a gun into the crowd. King returned fire. King fatally injured Hemphill and also shot and wounded Archie, who was rendered a paraplegic as a result of his injuries.

Archie sued Brown, King, Club Focus, and King Security, but did not name Brown’s insurance carrier, Acceptance Indemnity, as a defendant. Acceptance denied coverage of Archie’s claim, asserting that it fell within the Assault and Battery/Bodily Harm exclusion provision in the insurance contract. Archie moved the state court for leave to amend his complaint to add Acceptance as a defendant. However, he opted not to pursue the motion and took a default judgment against Brown and King. In the subsequent trial to determine damages, the jury awarded Archie $12,000,000.00 and $2.00 for punitive damages on March 11, 2010. On April 13, 2010, Archie filed a declaratory judgment in state court, seeking a declaration that Brown’s insurance policy covers his injuries. Acceptance Indemnity removed the case to federal district court on May 12, 2010. Acceptance Indemnity then moved for summary judgment, which the district court granted. Archie now appeals.

STANDARD OF REVIEW

We review “a district court’s grant of summary judgment de novo, applying the same standard as the district court.” Hillman v. Loga, 697 F.3d 299, 302 (5th Cir.2012). Summary judgment is appropriate if the record shows that “there is no genuine dispute as to any material fact.” Fed. R.Civ.P. 56(a). A fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of demonstrating that summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the nonmoving party would bear the burden of proof at trial, the moving party may meet its burden by showing “that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325, 106 S.Ct. 2548. Once the moving party has made this showing, the burden shifts back to the nonmoving party “to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there *453 is a genuine issue for trial.’” Id. at 324,-106 S.Ct. 2548; see also Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir.1985). The nonmoving party must-, in demonstrating that an issue of fact is genuine, “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). While any reasonable inferences are to be drawn in favor of the nonmoving party, Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 507 (5th Cir.2003), “[unsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment.” Brown v. City of Houston, Tex., 337 F.3d 539, 541 (5th Cir.2003).

ANALYSIS

Brown’s insurance contract with Acceptance Indemnity including an Assault and Battery/Bodily Injury exclusion that provides:

ASSAULT AND BATTERY EXCLUSION
It is agreed that the insurance does, not apply to Bodily Injury, including death, and/or Property Damage arising out of assault and/or battery or out of any act or omission in connection with the prevention of suppression of such acts, whether caused by or at the instigation or direction of the insured, his employees, patrons or any other person.

Archie argues that summary judgment should be denied because the exclusion is inapplicable because his injuries, were caused by “reckless disregard” and not by assault and battery because King and Hemphill lacked the requisite intent to commit assault or battery against him. He also claims that a minor typographical error in the clause — in which the word “or” was typed up as “of’ — introduced ambiguity into the contract and therefore creates a genuine issue of material fact. Because Archie’s injuries arose, out of the assault and battery committed by Hemp-hill, we affirm the district court.

The Mississippi Supreme Court has held that in insurance policies, “language in exclusionary clauses must be written in clear and unmistakable language and ... such clauses are always strictly interpreted.”; Miss. Farm Bureau Mut. Ins. Co. v. Jones, 754 So.2d 1203, 1204 (Miss.2000). Insurance contracts, including exclusionary clauses, are liberally construed in favor of the insured. U.S. Fid. & Guar. Co. of Miss. v. Martin, 998 So.2d 956, 963 (Miss.2008). However, “if a contract is clear and unambiguous, then it must be interpreted as written,” even if such interpretation results in hardship for the insured. Id.; see also Titan Indem. Co. v. Estes, 825 So.2d 651, 656 (Miss.2002). Here, the relevant terms are not ambiguous.

Under Mississippi law, an assault is committed “where a person (1) acts intending to cause a harmful or offensive contact with the' person of the other or a third person, or ap imminent apprehension of such contact, and (2). the other is thereby put in such imminent apprehension” Morgan v. Greenwaldt, 786 So.2d 1037, 1043 (Miss.2001). “A .battery goes one step beyond an assault in that a harmful contact, actually occurs.” Id. The terms are unambiguous. Both Hemphill and King committed assault, and King committed battery, in that his shots actual hit and killed Hemphill and injured Archie.

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