United States District Court, N.D. Indiana, Fort Wayne Division
CANOPIUS U.S. INSURANCE, INC., Plaintiff,
YANHOS, INC., et al., Defendants.
OPINION AND ORDER
L. Miller, Jr. Judge.
Canopius U.S. Insurance must cover a bar's liability for
a brawl depends on whether the insurance broker was
Canopius's agent. There isn't enough evidence for a
jury to conclude that he was Canopius's agent, and so
Canopius has no coverage obligations and the court grants its
motion for summary judgment.
a dispute over whether Canopius has any obligation to provide
insurance coverage for, to defend against, or to indemnify
for losses related to a fight at the Hideaway Bar &
Grill. There's discrepancy about who started the fight.
All agree, though, that bar employee Tequilla Hoskins punched
Jordan Funk in the face, breaking her nose. Ms. Hoskins was
then convicted of battery.
Funk sued in Grant Superior Court I. She sued Ms. Hoskins for
breaking her nose and the related medical expenses, pain,
anguish, and emotional distress. She also sued Yanhos, Inc.,
which owns the Hideaway, and Charles Hoskins and Rudolph
Yanis, who own Yanhos. She claimed they had inadequate
security at the bar and inadequate control over their
is Yanhos's commercial general liability insurer.
Canopius sued Yanhos, Ms. Hoskins, Mr. Yanis, Mr. Hoskins,
and Ms. Funk in this court for a declaration that Canopius
has no obligation to cover Ms. Funk's claims, and that it
has no duty to defend or to indemnify Yanhos, Mr. Yanis, Mr.
Hoskins, or Ms. Hoskins against or for Ms. Funk's claims.
The court already has entered default judgments against Ms.
Hoskins and Ms. Funk. Canopius now seeks summary judgment
against Yanhos, Mr. Yanis, and Mr. Hoskins. The court heard
oral argument on July 6, 2017.
defendants don't dispute whether liability from the fight
falls beyond Canopius's written coverage
obligations. They parry that Canopius misrepresented
their coverage to include bar-fights. Whether Canopius did
this depends on how the Canopius insurance policy was sold to
Burnette sold Canopius insurance to Yanhos. He considers
himself an independent insurance agent. Mr. Burnette
doesn't have direct contractual relationships with
insurers that cover high-risk customers, such as bars.
Instead, he goes through a managing general agent to procure
policies for these customers. The customer fills out the
application, Mr. Burnette passes it on to the managing
general agent, the managing general agent obtains quotes from
different insurance companies, and Mr. Burnette then presents
one or more quotes to the customer.
Burnette worked with Mr. Hoskins to obtain insurance for the
Drunken Chicken, a different bar that Mr. Hoskins used to
operate. In his deposition, Mr. Burnette said that when he
sold the policy for the Drunken Chicken, he explained to Mr.
Hoskins that the policy didn't cover altercations. He
said that commercial general liability policies always
exclude assault and battery claims. He said they discussed
the fact that Mr. Hoskins wasn't buying a liquor
liability policy for the Drunken Chicken. Mr. Burnette later
clarified in his affidavit that the Drunken Chicken policy
had limited liability coverage for assault and battery, but
no liquor liability coverage. Mr. Hoskins said he remembered
asking Mr. Burnette for coverage for everything, including
bar fights, for the Drunken Chicken.
Burnette and Mr. Hoskins worked together again to insure the
Hideaway. Mr. Burnette says he explained the insurance
options for the Hideaway similarly to the way he did for the
Drunken Chicken. Mr. Burnette said he obtained a quote for a
liquor liability policy, but because of the price, Mr.
Hoskins opted for a general commercial liability policy,
which excludes assault and battery claims. Mr. Hoskins
recalls it differently: he says he remembered asking for
coverage for everything at the Hideaway, just like he did
with the Drunken Chicken, and that when he picked up the
policy, Mr. Burnette explained that it provided coverage for
everything Mr. Hoskins wanted.
affidavit, Mr. Burnette explained that because the Hideaway
offered food and drink, it was a low enough risk to qualify
for Canopius insurance. The Drunken Chicken only sold drinks.
This made its policy significantly more expensive, but that
more expensive policy also included limited liability
coverage for assault and battery.
Burnette doesn't have a contract with Canopius. Roush
Insurance Services was the managing general agent that
provided Mr. Burnette with an insurance quote for the
Hideaway. Mr. Burnette gave Mr. Hoskins's application to
Roush. Roush then obtained quotes from Canopius and
Scottsdale Insurance Company. Roush determined that Canopius
had the best policy, and sent Mr. Burnette the Canopius quote
to present to Mr. Hoskins. Because the Canopius policy's
rate was substantially better than the Scottsdale
policy's rate, Mr. Burnette presented only the Canopius
policy to Mr. Hoskins, and that's what Mr. Hoskins
Standard of Review
judgment is appropriate when the pleadings, discovery
materials, disclosures, and affidavits demonstrate no genuine
issue of material fact, such that the movant is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56; Protective
Life Ins. Co. v. Hansen, 632 F.3d 388, 391-392 (7th Cir.
2011). The evidence and all inferences that reasonably can be
drawn from it must be construed in the light most favorable
to the non-moving parties. Anderson v. Liberty Lobby,
Inc.,477 U.S. 242, 255 (1986). As the moving party,
Canopius bears the burden of informing the court of the basis
for its motion, together with evidence demonstrating the
absence of any genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). If Canopius
meets that burden, the defendants can't rest upon the
allegations in the pleadings, but must “point to
evidence that can be put in admissible form at trial, and
that, if believed by the fact-finder, could support judgment
in [their] favor.” Marr v. Bank of Am., N.A.,
662 F.3d 963, 966 (7th Cir. 2011); Hammel v. Eau Galle