Opinion
Civil Action, No. 01-599, Section: "C"(1)
November 7, 2001
ORDER AND REASONS
Before the Court are cross-motions for summary judgment by Plaintiff, Manis, and Defendant St. Paul Fire and Marine Insurance Co. ("St. Paul"). After reviewing the arguments of counsel, the record and the application law, IT IS ORDERED that the motions are hereby PARTIALLY GRANTED and PARTIALLY DENIED, as set forth below.
STANDARD OF REVIEW
A district court can grant a motion for summary judgment only when the "'pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). When considering a motion for summary judgment, the district court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto, Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). The court must find "[a] factual dispute . . . [to be] 'genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party . . . [and a] fact . . . [to be] 'material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
"If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Engstrom v. First Nat'l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citing Celotex, 477 U.S. at 322-24, and Fed.R.Civ.P. 56(e)). The mere argued existence of a factual dispute will not defeat an otherwise properly supported motion. See Anderson, 477 U.S. at 248. "If the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Id. at 249-50 (citations omitted).
BACKGROUND
Manis alleges and St. Paul does not deny, for the purpose of these motions, the following: On March 8, 2000, Manis was arrested by Defendant Herbert Este, a Gretna Police Department officer. See Rec. Doc. 1 at ¶ 3. Manis then was taken to police headquarters and, while handcuffed and without provocation, was needlessly and repeatedly kicked and beaten with fists and sticks by several Defendant Gretna officers. See id. at ¶¶ 3-4. These officers were acting under color of state law, and their use of force was grossly excessive. See id. at ¶ 3. Several defendant and unknown officers, all acting under color of state law, witnessed the brutal attacks but did not intervene. See id. at ¶ 5.
After the beating, the Department took him to Jefferson Parish Lock-up, where correctional officers refused to book him because of his injuries. See id. at ¶ 6. Manis then was taken back to the department where, still handcuffed, he was dragged from a police vehicle and needlessly beaten again by the Defendant officers. The use of official force was grossly excessive and an abuse of official power. See id. at ¶ 7.
Defendant Officer Castagneto then took Manis to the hospital, threatening him en route with further violence and injury if he told anyone about the incidents. See id. at ¶ 8.
Finally, Defendant Officer Este prepared and Defendant Lieutenant J. Jackson, his supervisor, signed a report containing false information about the incident and Manis to cover up the civil rights violations and place Manis at risk for improper prosecution. See id. at ¶ 11.
As a result of the police officials' actions, Manis has incurred damages from (1) past, present and future physical and mental pain and suffering; (2) past, present and future mental anguish, fear and fright; and (3) permanent physical injury and disability including, but not limited, to scarring and nerve damage. Manis has incurred and will continue to incur medical expenses. See id. at ¶ 18.
In sum, the parties have stipulated (see Rec. Doc. 12 at 1-2), that: (1) the police deprived Manis of his fights under the Fourth, Fifth, and Eighth Amendments of the United States Constitution, all in violation of 42 U.S.C. § 1983, see Rec. Doc. 1; (2) the officers are thus liable to Manis for compensatory damages; punitive damages for acting maliciously, willfully and wantonly, and attorney fees under 42 U.S.C. § 1988, see id. at ¶¶ 19-20; and (3) the police violated Louisiana Civil Code Articles 2315, et seq., which provide Manis with an additional cause of action, see id. at ¶ 15.
As applied to Defendants through the Fourteenth Amendment.
The Court has jurisdiction over Manis' state-law claim under 28 U.S.C. § 1367 (a).
The parties dispute only whether an insurance policy issued to the City of Gretna and expressly covering its employees covers the above-mentioned defendant officials' actions. See Rec. Doc. 12.
ANALYSIS
Standards for interpreting insurance policies under Louisiana law
As the subject policy was delivered in the State of Louisiana, the Court interprets the provisions of the policy under that state's law. See Thermo Terratech v. GDC Enviro-Solutions, Inc., 265 F.3d 329, 334 (5th Cir. 2001) (citing Adams v. Unione Mediterranea Di Sicurta, 220 F.3d 659, 677 (5th Cir. 2000)). "Under Louisiana law, interpretation of an insurance policy is subject to the general rules of contract interpretation which requires judicial determination of the common intent of the parties to the contract." Id. (citing La. Ins. Guar. Asson v. Interstate Fire Gas, Co., 93-0911 (La. 1/14/94), 630 So.2d 759, 763. "The intent of the parties, 'as reflected by the words in the policy[,] determine the extent of coverage.'" Id. (quoting La. Ins. Guar. Ass'n, 630 So.2d at 763). The Court construes the words of an insurance policy by applying their "'general, ordinary, plain, and proper meaning.'" Id. (quoting La. Ins. Guar. Ass'n, 630 So.2d at 763).
Exclusions to coverage must be clear and express. See id. (citing Ogima v. Rodriguez, 799 F. Supp. 626, 630 (M.D. La. 1992). "When the language of an insurance policy is clear, it must be enforced as written." Id. (citing Reynolds v. Select Props, Ltd., 93-1480 (La. 4/11/94), 634 So.2d 1180, 1183). "If, however, the terms of the policy are ambiguous, they must be construed against the drafter of the policy." Id. (citing Oaks v. Dupuy, 26, 729 (La.App. 2 Cir. 4/5/95), 653 So.2d 165, 168). Therefore, if an exclusionary clause is susceptible to more than one reasonable interpretation, the Court must adopt the interpretation providing coverage to the insured. See id. at 334-35 (citing Talley v. Blue Cross Blue Shield of La., 99-1974 (La.App. 3 Cir. 5/3/00), 760 So.2d 1193, 1195).
The policy
The pertinent parts of the policy are as follows:
First, the policy covers "amounts any protected person is legally required to pay as damages for covered injury or damage that: results from the conduct of law enforcement duties by or for [the police department]; happen while this agreement is in effect; and is caused by a wrongful act."
Second, " Injury or damage means bodily injury, personal injury or property damage."
Third, " Personal injury means injury, other than bodily injury, caused by any of the following wrongful acts:
False arrest, detention or imprisonment.
Malicious prosecution.
. . . .
Violation of civil rights protected under any federal, state or local law." Rec. Doc. 15, Ex. B (emphasis added).
Later in the policy, St. Paul purports to limit coverage for these actions in two ways. First, wrongful act is defined as "any error, omission or negligent act," thus excluding conduct performed with a more culpable mental state than error, omission, or negligence. Id.
Second, the policy expressly does not cover "injury or damage that results from any criminal, dishonest or fraudulent act or omission." Id.
Construction of the policy
Manis argues that the coverage and exclusion provisions clash. He contends that several of the above-mentioned wrongful acts, for which the policy expressly provides coverage, are invariably intentional and criminal and thus at the same time are excluded. See Rec. Doc. 14. Thus, Manis concludes, ambiguity results, and the policy must be construed in favor of covering these acts. See id.
It is assumed for the purposes of the Court's analysis that the policy purports to exclude coverage not just for criminal convictions but also for acts that constitute "clear violations" of penal statutes, albeit without conviction. See Allstate Ins. Co. v. Raynor, 969 P.2d 510, 516 (Wash.Ct.App. 1999); cf. Applewbite v. Baton Rouge, 380 So.2d 119, 123 (La.App. 1St Cir. 1979).
Initially, it is the Court's task to attempt to discover whether the terms of the policy are clear, that is, whether the coverage and exclusion provisions can be squared. See Thermo Terratech, 265 F.3d at 334.
With a careful reading, it is technically possible to square the policy's coverage and exclusion provisions. In the policy, St. Paul agrees to pay legally required damages for covered injury or damage. The policy then defines injury or damage to include personal injury. Personal injury includes injury, other than bodily injury, caused by, inter alia, false arrest, detention or imprisonment, malicious prosecution, and violation of federal, state or local civil rights. See Rec. Doc. 15 at Ex. B. Thus, as long as the act in question constitutes error, omission or negligence, but is not criminal, dishonest, or fraudulent, one is covered.
Running down the list of acts causing personal injury, the Court finds that a policyholder would be able to recover in theory for each act, despite the limitations on coverage.
For example, coverage for false imprisonment is not precluded under such a theory. To begin with, one may prevail on a tort claim of false imprisonment without a showing of intent, see Frisk v. Palazzo, 95-1475 (La.App. 4th Cir. 1/19/96), 668 So.2d 415, 417. Proving intent is necessary, however, to convict for the crime of false imprisonment. See LSA-R.S. 14:46. Thus, as long as an act of false imprisonment constitutes error, omission, or negligence not in violation of clearly established law, it would not be criminal and, thus, any resulting non-bodily injury would be covered under the policy.
The torts of false arrest and malicious prosecution could be covered as well. This is because, in terms of the culpable state of mind, one need only show malice to prevail on torts of false arrest and malicious prosecution. See Morin v. Caire, 77 F.3d 116, 122 (5th Cir. 1996). Malice can exist when a party exhibits simply a "reckless disregard for the truth." See Stark v. Eunice Superette, Inc., 457 So.2d 291, 294-95 (La.App. 3d Cir. 1984). Here, arresting or prosecuting with a "reckless disregard for the truth" would constitute error, omission, or negligence and thus be covered under the policy while still not rising to the willfulness required for conviction under 18 U.S.C. § 242 for the same acts. Thus, the policy could cover non-bodily injuries resulting from non-willful false arrest or malicious prosecution.
And, there are, of course, non-criminal civil rights violations arising from omissions, errors, and negligence, which seemingly would be covered under the policy. For instance, a municipality's failure to train employees can provide a basis for municipal liability "where the failure to train amounts to deliberate indifference to the rights of persons with whom the [officials] come in contact." Canton v. Harris, 489 U.S. 378, 388 (1989). Assuming the officials' behavior does not rise at least to willful violation of clearly established constitutional rights, the officials themselves would not be criminally liable.
The inquiry does not end here, however. Just because the coverage provisions and exclusions of the policy may be reconciled, "[a]n insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion." La. Ins. Guar Ass'n, 630 So.2d 759, 763 (emphasis added).
The cramped reading above would achieve such a conclusion. This is because coverage of § 1983 excessive force claims, such as alleged in this case, would be illusory under the policy. If an officer uses excessive force in violation of clearly established law, his conduct amounts to criminal battery under Louisiana law. The officer's conduct thus is necessarily precluded from coverage under the policy.
See United States v. Lanier, 520 U.S. 259, 270-71 (1997) (law must be clearly established to subject officer either to civil liability under 42 U.S.C. § 1983 or criminal liability under 18 U.S.C. § 242); Saldana v. Garza, 684 F.2d 1159, 1165 (5th Cir. 1982) (qualified immunity protects conduct not in violation of clearly established law); Keller v. McElveen, 98-812 (La.App. 3 Cir. 6/2/99), 744 So.2d 643, 648 (announcing application of qualified immunity standard for state tort liability).
See LSA-R.S. 14:33; State v. Dauzat, 392 So.2d 393, 396 (La. 1980) (essential element of battery is "physical contact whether injurious or merely offensive"); In re Glassberg, 88 So.2d 707, 709 (La. 1956) (showing that aggravated battery defendant intended to injure victim not essential).
Consequently, two provisions of the contract — one expressly covering liability for "violation of civil rights" and one excluding coverage for injury or damage resulting from a "criminal" act — are directly in conflict. It is unclear from the contract which provision trumps. When ambiguity exists, the interpretation that provides coverage is to be applied.
Furthermore, given the policy's express coverage of civil rights violations by Gretna law enforcement officers and the number of § 1983 excessive force claims filed against law enforcement officers, it would be surprising, to say the least, that the City of Gretna would have conceived that such claims would not be covered under the policy. See Imperial Casualty and Indemnity Co. v. State, 714 A.2d 1230, 1238 (Conn. 1998). Imperial Casualty involved the interpretation of a law enforcement professional liability policy providing coverage for liability resulting from some of the same acts as the policy at issue here does. These acts specifically included false arrest, false imprisonment, malicious prosecution, and those creating liability under § 1983, all of which the court termed intentional acts. Another provision in the policy, however, purported to limit coverage to unintentional conduct, which the insurer contended excluded coverage. The Court had difficulty imagining that the insured "could have intended to purchase a policy of insurance that excluded such coverage." Id. The court applied what the Louisiana Supreme Court has identified as the "reasonable expectations doctrine," which states that "courts will protect the [insured's] reasonable expectations . . . regarding the coverage afforded by insurance contracts even though a careful examination of the policy provisions indicates that such expectations are contrary to the expressed intention of the insurer." La. Ins. Guar. Ass'n, 630 So.2d at 764, 764 n. 9 (citation omitted).
The Sixth Circuit also used the logic of this doctrine to resolve a case involving the question of insurance coverage for an alleged act of intentional employment discrimination. See North Bank v. Cincinnati Ins. Co., 125 F.3d 983 (6th Cir. 1997). In North Bank, the policy language provided coverage for "occurrences," which the policy defined as events that "unexpectedly or unintentionally resulted in personal injury," where personal injury was defined to include a number of inherently intentional torts. Id. at 985. The court found that the policy language was inconsistent and ambiguous. "[I]n selling the policies, the insurance company uses these conflicting provisions to create the impression that the policy provides coverage for an employer's intentional employment discrimination, but when an insured attempts to claim coverage the insurance company argues that the discrimination is not actually covered by the policy." Id. at 987 (internal quotations omitted). Accordingly, the court construed the ambiguity in favor of coverage. See id.
It is apparent thus far that the terms of the policy are ambiguous and, as such, must be construed against the drafter of the policy to provide coverage. St. Paul, however, raises as a bar to coverage the public policy against insuring parties for criminal behavior. See Young v. Brown, 27,018 (La.App. 2 Cir., 6/21/95), 658 So.2d 750.
Young, however, is distinguishable on its facts. The case involved the question of whether providing insurance coverage for negligent criminal behavior conflicted with what the court asserted was Louisiana public policy against insuring a party for its criminal behavior. See Id. Insofar as the court declared that insuring intentional criminal behavior also was against Louisiana public policy, this court reads this assertion as dicta.
Moreover, the public policy consideration raised by St. Paul is not the only one at issue here, as the Young court recognized. Young considered the public policy related to protecting innocent injury victims, but ultimately decided that the two could be balanced by allowing coverage for non-intentional criminal behavior while asserting that coverage for intentional criminal behavior is void as against public policy. See id. at 753-55.
Not every court has seen it the Young court's way. See Graham v. Jackson Assocs., Inc., 352 S.E.2d 878 (N.C.Ct.App. 1987). Graham concerned the question of coverage under a policy for an act strikingly similar to the one in Young. In Graham, a town police officer was convicted of involuntary manslaughter. See id. at 881. An insurance policy issued to the town provided coverage for negligently inflicted bodily injury resulting from assault and battery, a criminal act. See id. The policy, however, expressly excluded criminal acts, drawing the provision and exclusion into conflict. See id. Although recognizing the public policy considerations against insuring criminal behavior, the Graham court ultimately was swayed by the importance of protecting not only innocent victims, but also a municipality's officers, directors, and stockholders. See id. at 881-82. Thus, the court held that the policy provided coverage. See Id. at 882.
Thus, to the extent that the exception for coverage from criminal acts conflicts with coverage for personal injury, it is necessary to construe the policy in favor of Manis and hence void this exception to provide coverage. See Thermo Terratech, 265 F.3d at 334. See also Isdoll v. Scottsdale Ins. Co., 466 S.E.2d 48, 50-51 (Ga.Ct.App. 1995); City of Greenville v. Haywood, 502 S.E.2d 430 (N.C.Ct.App. 1998); Graham, 352 S.E.2d at 881.
The "error, omission, or negligent act" provision
St. Paul further urges a reading that would exclude acts that are more egregious than error, omission, or negligence. The problem with construing the provision this way is as follows: the policy's specific coverage for acts of error, omission, and negligence suggests anything but intentional acts would be covered. Thus, given the understanding of the provision as a ban on covering intentional acts, this provision conflicts with the acts specifically covered in the Personal Injury provision, which are almost invariably intentional in their own right or may become intentional by virtue of a touching. See supra.
Therefore, because the provision limiting coverage to errors, omissions, and negligence conflicts with the provision specifically covering personal injuries, it is necessary to void the former in order to construe the ambiguity in favor of covering Manis. See Thermo Terratech, 265 F.3d at 334-35. See also Lincoln Nat'l Health Cas. Ins. Co. v. Brown, 782 F. Supp. 110, 112-13 (M.D. Ga. 1992).
Claim under Civil Code Article 2315. et seq .
The policy specifically covers tort liability for "any error, omission or negligent act." As such, it does not specifically cover damages for intentional torts other than personal damages for the acts specifically listed. Thus, Manis' recovery is limited to personal injury damages caused by the § 1983 violations alleged.
Law Enforcement Duties
St. Paul further argues that coverage of the officers' actions is excluded because the policy covers only legally required damages "resulting from the conduct of law enforcement duties" by or for the Gretna Police Department. Rec. Doc. 15 at Ex. B. The policy goes on to define "law enforcement duties" as "duties or obligations that must be performed or fulfilled by or for [the Department] in order to enforce or carry out local, state, or federal government laws or regulations." Id. St. Paul contends that because the officers' actions clearly did not have to be performed to enforce or carry out any laws, coverage is therefore excluded. See id., Mem. in Supp. of Mot. for Summ. J. on Coverage at 4-6.
Taken literally, this provision would exclude all coverage — no act, negligent or intentional, that created civil or criminal liability can be said to be required to enforce or carry out laws. St. Paul urges that this provision should be read to provide coverage for non-criminal acts. But such a dividing line is arbitrary. It is not clear, for instance, why it would be necessary for a law enforcement officer to unintentionally make a false arrest but be unnecessary for him to intentionally perform the same act. Even if the intent behind this limitation is to protect officers for good-faith errors committed while performing their duties, this design plainly does not work in the excessive force context — a good-faith, but unreasonably excessive use of force still leads' to criminal liability under Louisiana law.
In arguing that the Gretna officers' actions did not sufficiently relate to their law enforcement duties to invoke coverage, St. Paul analogizes to a case involving the question of coverage for a priest's alleged lewd and lascivious conduct. See Fontaine v. Roman Catholic Church of the Archdiocese of New Orleans, 94-1772 (La.App. 4 Cir. 1/31/96), 669 So.2d 493, 496. The policy in question covered the priest "while acting in the scope of his duties." Id. The Fontaine court found that the alleged activity did not fall within the "scope" of the priest's duties. Id. The language of that policy is inapposite, however. The use of the word "scope" in the Fontaine policy suggests that the bounds of coverage there were to be determined by roughly the same course-and-scope analysis used to determine employer respondeat superior. See Lamkin v. Brooks, 498 So.2d 1068, 1070-71 (La. 1986). The policy here is far narrower — it excludes coverage for any act not necessary to carry out law enforcement duties. As such, this provision clearly conflicts with the provision expressly covering a list of specific acts. Thus, this ambiguity must be construed against St. Paul and in favor of Manis.
Coverage for policy report falsification and malicious prosecution
As a subsidiary matter, St. Paul contends that coverage does not exist for the officers who falsified police reports because Manis "was not harmed by the reports." The Complaint alleges, however, that three defendant officials and other unknown officers "knowingly and maliciously conspired to falsify policy reports concerning the incident and engaged in a cover-up of the truth, all in violation of plaintiffs due process and liberty rights." Rec. Doc. 1 at ¶ 11. The Complaint further alleges that, as a result of their actions, the officers are liable to Manis for compensatory and punitive damages and for attorney fees under 42 U.S.C. § 1983 for "these" constitutional violations. Id. at ¶¶ 19-20. Furthermore, St. Paul stipulated to the truth of these allegations. See Rec. Doc. 12 at 1-2. Thus, coverage for the false report is provided here.
Manis, meanwhile, submits that the Complaint alleges a claim for malicious prosecution. Manis nowhere alleges even the hint of a prosecution resulting from the officials' actions. See Rec. Doc. 12. As this claim is not alleged and the stipulations cover only what is alleged, no coverage is provided for malicious prosecution.
CONCLUSION
The St. Paul policy provisions (1) excluding coverage for criminal acts and (2) limiting coverage to error, omission, and negligent acts fatally conflict with the provisions that specifically provide coverage for personal injury arising from various specific acts, including civil rights violations. Because they conflict with such coverage, the exclusions must be read out of the policy. Thus, the policy provides coverage for personal, i.e., non-bodily, injury resulting from the § 1983 violations alleged and accepted as true for the purposes of these motions. Accordingly,
IT IS ORDERED that:
Manis' and St. Paul's motions for summary judgment are hereby PARTIALLY GRANTED and PARTIALLY DENIED as set forth above.