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Auto-Owners Insurance Co. v. American Central Insurance Co.6/25/1999
REL:06/25/99AUTO-OWNERS
NOTICE: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 242-4621), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
OCTOBER TERM, 1998-99
The plaintiff Auto-Owners Insurance Company appeals from a summary judgment entered in favor of the defendant American Central Insurance Company in this case involving a coverage dispute between the two insurance companies. We affirm.
Auto-Owners sued for a declaratory judgment to determine its duties and obligations under an umbrella policy of insurance, and American Central's duties and obligations under a homeowner's policy of insurance, to defend and/or indemnify Emmette L. Barran III in an underlying action filed by Jason Jones against Kappa Alpha Order, Inc., Barran, and others. Auto-Owners asked the trial court to hold that American Central owed primary liability coverage for Barran, that American Central should reimburse Auto-Owners for all defense costs incurred, and that American Central should provide a full and complete defense for Barran.
The parties filed cross motions for summary judgment. The trial court entered a summary judgment in favor of American Central, concluding that, as a matter of law, all of Jones's claims against Barran in the underlying action were excluded from coverage under American Central's policy. After the trial court made the summary judgment final pursuant to Rule 54(b), Ala. R. Civ. P., Auto-Owners appealed.
Jones commenced the underlying action on October 17, 1995. He claimed that while he was a pledge of the Nu Chapter of Kappa Alpha fraternity at Auburn University, he was subjected to mental and physical abuse during brutal hazing incidents. Jones alleged, among other things, that the defendants participated in and allowed unlawful hazing tactics to be used against him, that they intentionally and recklessly caused him to suffer emotional distress, and that they committed assault and battery upon him. Barran held the office of vice president and "pledge trainer" for Nu Chapter of Kappa Alpha. The trial court entered a summary judgment in favor of the defendants as to all of Jones's claims except his assault-and-battery claims against two fraternity members. The Court of Civil Appeals reversed that summary judgment, holding that whether Jones had assumed the risk of injury by pledging to the fraternity was a question of fact. See Jones v. Kappa Alpha Order, Inc., [Ms. 2960663, December 5, 1997] ___ So. 2d ___ (Ala. Civ. App. 1997). This Court reversed the judgment of the Court of Civil Appeals and reinstated the summary judgment, holding that, as a matter of law, Jones had assumed the risk of injury by pledging to the fraternity. See Ex parte Barran, [Ms. 1970679, December 4, 1998] ___ So. 2d ___ (Ala. 1998). Therefore, all of Jones's claims against Barran have been resolved in Barran's favor and no judgment was ever entered against him.
After Barran was sued, he sought defense and indemnity from American Central under a policy of homeowner's insurance issued to his father, Emmette L. Barran, Jr. American Central denied coverage and refused to indemnify, claiming that its policy excluded coverage for bodily injury or property damage resulting from physical or mental abuse. Barran's defense was subsequently tendered to Auto-Owners under an umbrella policy issued to Barran's father. Auto-Owners agreed to defend Barran under a reservation of rights. It
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