United States District Court, S.D. Indiana, Indianapolis Division
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Plaintiff: Robert
Scott O'Dell, O'DELL & ASSOCIATES, P.C., Carmel, IN.
DAVID WILLIAMS, Defendant: Christopher D. Wyant, BROWN
TOMPKINS LORY & MASTRIAN, Indianapolis, IN.
ANTHONY VAN DE VENTER, JEANETTE VAN DE VENTER, Defendants:
Christine L. Bartlett, Megan J. Schueler, FERGUSON &
FERGUSON, Bloomington, IN.
ON PARTIES' CROSS MOTIONS FOR SUMMARY JUDGMENT
EVANS BARKER, United States District Judge.
matter comes before us on cross Motions for Summary Judgment
filed by Defendants Anthony and Jeanette Van De Venter [Dkt.
No. 50] and Plaintiff American Family Mutual Insurance
Company [Dkt. No. 47]. The motions are fully briefed,
including an opposition to American Family's motion filed
by Defendant David Williams. For the following reasons
we GRANT Defendants Anthony and Jeanette Van De Venter's
Motion for Summary Judgment and DENY Plaintiff American
Mutual Insurance Company's Motion for Summary Judgment.
Plaintiff in this case, American Family Mutual Insurance
Company (" American Family" ) seeks a declaratory
judgment that an insurance claim made by Anthony and Jeanette
Van De Venter (the " Van De Venters" ) is outside
the scope of their homeowner's insurance policy and
American Family owes no duty to defend or duty to indemnify
the defendants. On October 23, 2012, David Williams, a
houseguest of the Van De Venters, was injured when he took
the Van De Venters' Labrador, Emma, into the Van De
Venters' backyard on a leash. The Van De Venters seek
insurance coverage for Mr. Williams's injuries and demand
that American Family
provide them with a defense in a state court lawsuit against
them filed by Mr. Williams.
Mr. Williams Was Injured When Taking Emma Into the Backyard
on a Leash.
Williams and the Van De Venters have been friends for many
years. [A. Van De Venter Dep. at 45, 48.] Mr. Williams lived
in San Diego, California when the Van De Venters invited him
to visit them at their home located at 6370 May Road,
Bloomington, Indiana. Mr. Williams arrived at the Van De
Venters home for a five-day visit on October 20, 2012.
[Williams Dep. at 93.] At the time of Mr. Williams's
visit, the Van De Venters owned a black Labrador, Emma. [J.
Van De Venter at 14, 52.]
De Venters had to be away from home for their jobs on October
23, 2012 during Mr. Williams' visit. They offered Mr.
Williams their vehicle in order to get into town and to the
gym. [Williams Dep. at 119.] Mr. Williams declined the offer
and chose to stay at the Van De Venters' home. [
Id. ] The Van De Venters told Mr. Williams that Emma
would be fine staying inside while they were working, but
that she might signal her need to go outside by ringing a
bell by the front door. [J. Van De Venter Dep. at 39.]
Typically during colder weather, Emma was left alone in the
home, either enclosed in the laundry room or free to roam the
home. [A. Van De Venter Dep. at 29.] According to Mr.
Williams, Mr. Van De Venter asked him to take Emma outside
the next morning because the Van De Venters would again be
working. [Williams Dep. at 107-08.]
De Venters' yard is not enclosed with a fence. [Williams
Resp. to Req. for Admis. at 18-19; Van De Venters' Resp.
to Req. for Admis. at 18-19.] A dispute exists with respect
to the Van De Venters' instructions to Mr. Williams. Mr.
Williams claims that Mr. Van De Venter showed him the
retractable leash and instructed him on how to attach it to
Emma's collar. [Williams Dep. at 108-09, 111, 114; A. Van
De Venter Dep. at 58-59.] The Van De Venters claim that Mr.
Williams was instructed not to walk the dog and that if he
wanted to let Emma outside, he was to attach her collar to
the chain connected to a stake in the ground near the door to
the garage. [A. Van De Venter Dep. at 54-55.] It is the Van
De Venters' contention that on October 22, 2012, Mrs. Van
De Venter attempted to instruct Mr. Williams on how to use
the outdoor chain for Emma, but that Mr. Williams "
would not listen and said he did not need instructions since
he had handled dogs before." [Dkt. No. 48 at 8 (citing
A. Van De Venter Dep. at 70-71; J. Van De Venter Dep. at
39-40).] Mr. Williams denies that he was instructed to put
Emma on the chain outside and denies that he was told not to
walk Emma. [Williams Dep. at 109.] It is undisputed that the
Van De Venters did not ask Mr. Williams to provide food or
water to Emma during his visit. [J. Van De Venter Aff. at
¶ 10; A. Van De Venter Aff. at ¶ 10.] The Van De
Venters also did not ask Mr. Williams to care for Emma (aside
from the conversation regarding letting Emma outside, which
is in dispute), nor did they pay or offer to pay Mr. Williams
to care for Emma. [ Id. ]
October 23, 2012, Mrs. Van De Venter gave Emma food and water
before leaving for work. [J. Van De Venter Dep. at 44.] Mr.
Williams was at home by himself with Emma. [A. Van De Venter
Dep. at 53.] Sometime in the morning, Mr. Williams, while
lying in bed watching television, heard Emma scratching at
the door. [Williams Dep. at 112-13.] Mr. Williams went
downstairs, put the leash on Emma's collar and took Emma
outside. [ Id. at 113.] This task was performed by
him more than once. [ Id. at 115.]
second time that Mr. Williams took Emma outside, he took her
away from the road towards the Van De Venters' garden.
[Williams Dep. at 121-22; Williams Interrog. Resp. at
3.] While holding Emma's leash, Mr.
Williams heard another dog bark. [Williams Dep. at 123, 125.]
Emma pulled away from Mr. Williams causing him to fall on his
right shoulder, which injury caused Mr. Williams intense pain
(the " Incident" ). [ Id. at 125-27, 137.]
result of the Incident, Mr. Williams filed a lawsuit against
the Van De Venters in the Monroe County Circuit Court, cause
number 53C06-1308-CT-1435 (the " Underlying Suit"
). In his complaint, Mr. Williams alleges the Van De Venters
were negligent in failing to properly train, restrain and
supervise Emma; for failing to warn him of Emma's
dangerous propensities; for failing to instruct or warn him
about the use of the retractable leash; for failing to
provide an adequate leash for Emma; and for failing to
exercise reasonable care for his safety while he was a guest
at the Van De Venters' Home. Mr. Williams alleges that as
a direct and proximate cause of the Van De Venters'
negligence he suffered personal injuries, incurred medical
expenses, pain and suffering, and other damages. The Van De
Venters seek to have their homeowners insurance policy cover
any losses and the insurance company provide a defense to the
suit filed by Mr. Williams.
The Van De Venters' Insurance Policy
with American Family.
time of the Incident, the Van De Venters were insured by
American Family pursuant to an Indiana Homeowners Policy for
the residence at 6370 West May Road, Bloomington Indiana,
policy number 13-BJ8536-01 (" the Policy" ). The
Policy extends the following liability coverage to the Van De
COVERAGE D -- PERSONAL LIABILITY COVERAGE
We will pay, up to our limit, compensatory damages for which
any insured is legally liable because of bodily injury or
property damage caused by an occurrence covered by this
If a suit is brought against any insured for damages because
of bodily injury or property damage caused by an occurrence
to which this policy applies, we will provide a defense at
our expense by counsel of our choice. We will defend any suit
or settle any claim for damages payable under this policy as
we think proper.
OUR OBLIGATION TO DEFEND ANY CLAIM OR SUIT ENDS WHEN THE
AMOUNT WE HAVE PAID FOR DAMAGES RESULTING FROM THE OCCURRENCE
EQUALS OUR LIMIT.
at Liability Coverages -- Section II, Coverage D -- Personal
Liability Coverage, page 9 of 16 (emphasis in original).]
Policy defines " bodily injury" as " bodily
harm, sickness or disease. It includes
resulting loss of services, required care and death."
[Policy at Definitions, paragraph 1, page 1 of 16.] "
Occurrence" means " an accident, including exposure
to conditions, which results during the policy period,
in:" (a) bodily injury; or (b) property damage. [
Id. at Definitions, paragraph 9, page 2 of 16.] The
Policy defines an insured as follows:
DEFINITIONS -- INSURED
a. Insured means you and, if residents of your household:
(1) your relatives; and
(2) any other person under the age of 21 in your care or in
the care of your resident relatives.
b. Under Personal Liability and Medical Expense Coverages,
insured also means:
(1) Any person or organization legally responsible for a
watercraft or animal owned by any person included in
paragraph a. to which Section II Coverages apply. This does
not include a person or organization using or having
custody of the watercraft or animal in the
course of business or without your specific permission.
[ Id. at Definition, page 1 of 16 (emphasis in
original).] The Policy contains the following exclusions from
Coverage D -- Personal Liability and Coverage E -- Medical
Expense do not apply to:
* * *
11. Intra-insured Suits. We will not cover bodily injury to
* * *
17. Violation of Law. We will not cover bodily injury or
property damage arising out of:
a. violation of any criminal law for which any insured is
b. violation of any building or housing code for which any
insured is convicted; or
c. violation of any criminal law for which any insured is not
convicted due to ...