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[T] American Economy Insurance Company v. Simon2/12/2003
Defendants appeal from the district court's grant of summary judgment. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
I. Background Facts and Proceedings.
Dick Schurman was injured in a fight with Russ Simon at Russ's Sportsman Lounge on November 22, 1999. As a result, Simon was charged with willful injury . Simon subsequently pleaded guilty to the lesser offense of assault causing bodily injury. Simon's written guilty plea states:
I am knowingly and intelligently pleading guilty to the lesser included offense of Assault Causing Bodily Injury . . . on the basis of United States v. Alford. The defendant [Simon] stipulates that the Minutes of Testimony attached to the Trial Information would be sufficient to establish guilt beyond a reasonable doubt if this case proceeded to trial.
A judgment of conviction and sentencing orders were entered in accordance with Simon's plea.
Schurman sued Russ, Inc., d/b/a Russ's Sportsman Lounge, and Simon for personal injury and punitive damages resulting from the November 22, 1999, fight with Simon. Schurman claimed Russ, Inc. was liable for the damages claimed because it failed to protect him from injury while on its premises as a business invitee. Russ, Inc. and Simon denied liability, claiming Simon used reasonable force to protect himself and others from Schurman.
American Economy, Russ, Inc.'s liability insurer, filed this action requesting the court to declare that it had no obligation to defend or indemnify Russ, Inc. American cited the following policy provisions excluding coverage for the damages claimed:
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury " or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury" or "property damage" to which this insurance does not apply. . . . No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for under SUPPLEMENTARY PAYMENTS - COVERAGES A AND B.
b. This insurance applies to "bodily injury " and "property damage" only if:
(1) The "bodily injury " or "property damage" is caused by an "occurrence" that takes place in the "coverage territory;"
2. Exclusions
This insurance does not apply to:
a. Expected or Intended Injury
"Bodily injury " or "property damage" expected or intended from the standpoint of the insured. This exclusion does not apply to "bodily injury" resulting from the use of reasonable force to protect persons or property.
2. Exclusions
This insurance does not apply to:
a. "Personal Injury " . . .
(3) Arising out of the willful violation of a penal statute or ordinance committed by or with the consent of the insured;
1. Insuring Agreement
a. We will pay medical expenses as described below for "bodily injury " caused by an accident;
2. Exclusions
We will not pay expenses for "bodily injury ":
a. To any insured.
g. Excluded under Coverage A.
SECTION II - WHO IS AN INSURED
1. If you are designated in the Declarations as:
d. An organization other than a partnership, joint venture or limited liability company, you are an insured. Your "executive officers" and directors are insureds, but only with respect to their du
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