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Nautilus Insurance Co. v. Johnson

United States District Court, N.D. Indiana

January 17, 2019

NAUTILUS INSURANCE COMPANY, Plaintiff,
v.
STEVEN JOHNSON, B.B.D. MANAGEMENT LLC d/b/a TOO MUCH TEMPTATIONS, and DANIEL GAMEZ, Defendants.

          OPINION AND ORDER

          THERESA L. SPRINGMANN CHIEF JUDGE

         Defendant Daniel Gamez (“Gamez”) filed a state court suit against Defendants Steven Johnson (“Johnson”) and B.B.D. Management, LLC, d/b/a Too Much Temptations (“B.B.D.”), for damages sustained during a shooting at B.B.D.'s premises on March 11, 2015. The Plaintiff, Nautilus Insurance Company, has filed a Complaint for Declaratory Judgment [ECF No. 1]. On September 22, 2017, the Clerk entered a Default Judgment against Defendants Johnson and B.B.D. [ECF No. 9].

         On May 8, 2018, the Plaintiff filed a Motion for Summary Judgment [ECF No. 14], seeking judicial determination that: (1) Nautilus owes no duty to defend or indemnify Johnson and B.B.D. Management, LLC and/or any of its owners, incorporators or shareholders under the terms of the Nautilus policy number NN175053 in response to the Underlying Complaint and any claim or lawsuit that has been or may be made or filed by Daniel Gamez arising out of the March 11, 2015 incident/shooting; (2) There is no coverage under the Nautilus policy for any claim that has been or may be made or filed by Daniel Gamez arising out of the March 11, 2015 incident on the basis that the attack did not result in “bodily injury'' caused by an “occurrence, ” and/or on the basis of the policy's “All Assault or Battery” exclusion and/or the "Weapons" exclusion; and (3) There is no coverage under the Nautilus policy for any claim for punitive damages due to the punitive damages exclusion of the policy.

         As Defendants Johnson and B.B.D. are in default, they did not dispute the Motion. Defendant Gamez' response would ordinarily have been due on June 5, 2018. As no response was filed, the Court ordered Defendant Gamez to file any response on or before August 29, 2018, and warned Defendant Gamez that failure to file such a response might result in the Court granting summary judgment in favor of the Plaintiff if the Motion and supporting materials including any undisputed facts show that the Plaintiff was entitled to such a judgment. [ECF No. 17]. Defendant Gamez did not file any response.

         STATEMENT OF FACTS

         The following facts are not in dispute. See Fed. R. Civ. P. 56(e)(2)(“If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may…consider the fact undisputed for the purposes of the motion.”).

         A. The Policy

         The Plaintiff issued a Commercial General Liability policy (the “Policy”) to B.B.D., with a policy period covering the relevant date. The Policy provided that the Plaintiff was obligated to pay damages, and had a right and duty to defend Defendant B.B.D. Management, because of “bodily injury” to which the insurance applied; and that the Plaintiff was not obligated to pay damages or defend a suit for “bodily injury” to which the insurance did not apply. (See Policy, Section I.1.a, ECF No. 1-2.) The Policy further provided that “[t]his insurance applies to ‘bodily injury' . . . only if: (1) The ‘bodily injury' . . . is caused by an ‘occurrence' that takes place in the ‘coverage territory'.” (Id. at 1.1.b(1)). “Occurrence” is defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” (Id. at V.13).

         The Policy also specifically excludes coverage for any assault or battery. (Id. at “Exclusion - All Assault or Battery, ” p. 31). The Policy specifies that “[r]egardless of culpability or intent of any person, this insurance does not apply to ‘bodily injury' . . . arising out of any: 1. Actual or alleged assault or battery; 2. Physical altercation; or 3. Any act or omission in connection with the prevention or suppression of such acts, including the alleged failure to provide adequate security.” (Id.) The exclusion applies regardless of whether the damages are caused by the insured, an employee, a patron, or any other person. (Id.) The exclusion specifically applies to:

1. All causes of action arising out of any assault or battery, or out of a physical altercation including, but not limited to, allegations of negligent hiring, placement, training, or supervision, or to any act, error, or omission relating to such an assault or battery, or physical altercation;
2. Any claims or “suits” brought by any other person, firm or organization asserting rights derived from, contingent upon, or arising out of an assault or battery, or a physical altercation; and specifically excludes from coverage claims or “suits” for:
a. Emotional distress for loss of society, services, consortium or income; or
b. Reimbursement for expenses including, but not limited to, medical expenses, hospital expenses, or wages, paid or incurred, by such ...

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