United States District Court, S.D. Indiana, Terre Haute Division
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF NO.
R. SWEENEY II JUDGE
matter is set for trial on September 30, 2019. Plaintiff
American Family Mutual Insurance Company, by counsel, filed
its Motion for Summary Judgment in its action seeking
declaratory judgment that it has no duty to defend or
indemnify against Defendants, Robert Brenton, Jr. and James
Brenton. James Brenton has not appeared in this matter.
Accordingly, the Court, having considered the Motion, now
finds that the Motion should be GRANTED with respect to
Robert Brenton, Jr. and DENIED with respect to James Brenton.
The Underlying Action On September 12, 2015, Robert
Brenton, Jr. (“Robert”) engaged in a physical
altercation (the “Incident”) with his brother,
James Brenton (“James”), at James'
home. (See ECF No. 50-1, James Dep.
7:4-25, 8:1-12; ECF No. 50-4, Robert Dep. 8:6-11, 9:8-9.)
Robert arrived at James' home to settle a dispute
regarding a watch broken by Robert's son. (See
ECF No. 50, Br. Supp. Pl.'s Mot. Summ. J. (hereinafter
Pl.'s Br.) 4; ECF No. 50-1, Ex. A, James Dep.
(hereinafter James Dep.) 6:18-8:4.) Robert and James moved
into the kitchen, where they started to wrestle.
(See ECF No. 50-1, James Dep. 8:5-10;
9:3-10.) During the altercation, James grabbed a crossbow
arrow and stabbed Robert. (See Id. at 10:10-19.) The
Vigo County prosecutor brought five charges against James
resulting from the Incident. (ECF No. 50, Pl.'s Br. 7.)
To those charges, James pleaded guilty to “recklessly,
knowingly, or intentionally, with a deadly weapon,
perform[ing] an act that created a substantial risk of bodily
injury to Robert Brenton, Jr. in violation of Indiana
law.” (Id.) The Vigo Superior Court
subsequently found James guilty of criminal recklessness with
a deadly weapon. (See ECF No. 50-1, James Dep.
22:1-25:12, 26:20-27:9.) In an underlying action filed in the
Clay (Indiana) Circuit Court (Cause No. 11C01-1709-CT-00058)
(“Underlying Action”), Robert claims damages from
injuries allegedly caused by James during the Incident.
(See ECF No. 28-1, Underlying Compl. 3.)
The Insurance Policies
reported the Incident to an insurance agent of Plaintiff,
American Family Mutual Insurance Company (“American
Family”). (See ECF No. 28, Compl. ¶ 17.)
American Family issued two insurance policies to James,
effective September 12, 2015: the Homeowners Policy and the
Umbrella Policy. (See ECF 50, Pl.'s Br. 7, 9;
ECF No. 1-2, Ex. B; ECF No. 28-2, Homeowners Policy; ECF No.
28-3, Umbrella Policy.) Both the Homeowners Policy and the
Umbrella Policy contain identical provisions describing their
coverage for personal liability and American Family's
obligation to provide a legal defense to the insured. Those
provisions state, in relevant part:
LIABILITY COVERAGES - SECTION II
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 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
(ECF No. 28-2, Homeowners Policy 12; ECF No. 28-3, Umbrella
policy sets forth definitions to control interpretation of
the policy language.
Umbrella Policy states, in relevant part:
* * *
13. Occurrence means:
a. Under Personal Liability Coverage, an accident, including
continuous or repeated exposure to substantially the same
general harmful conditions, which results, during the policy
period, in personal injury and/or property damage[.]
(ECF No. 28-3, Umbrella Policy 5.) The Homeowners Policy
provides a substantially similar definition. (See
ECF No. 28-2, Homeowners Policy 4.)
Homeowners Policy and the Umbrella Policy also contain
exclusions. The Homeowners Policy excludes coverage for the
EXCLUSIONS - SECTION II
Coverage D - Personal Liability and Coverage E - Medical
Expense do not apply to:
1. Abuse. We will not cover bodily injury or
property damage arising out of or resulting from any ...