Opinion
CIVIL ACTION NO: 03-1590 SECTION: "R" (1)
May 27, 2004
ORDER AND REASONS
In this declaratory action, State Farm Fire and Casualty Company moves the Court for summary judgment on the issue of whether its homeowner's liability insurance policy covers the allegedly intentional acts of defendant Thomas Neyhart. Neyhart opposes the motion. For the following reasons, the Court grants State Farm's motion.
I. BACKGROUND
In August 2001, defendant Thomas Neyhart and his wife, Lisa Neyhart, attended a business convention in Las Vegas, Nevada. On August 6, the Neyharts joined two business acquaintances for dinner and gambling at the Paris Hotel and Casino.
While Mrs. Neyhart gambled with one of her dinner companions, Dedric Akins, who was allegedly intoxicated, joined them at the gambling table. Mrs. Neyhart knew who Akins was from previous conventions. Akins began to verbally abuse Mrs. Neyhart in front of two convention attendees who sat at the same table. (See Pl.'s Opp. Mot. Summ. J., Ex. 2, at 1-2; Ex. 4, at 1-2). Although Mrs. Neyhart asked Akins to stop, he did not do so. ( See id.). Mrs. Neyhart informed security personnel at the Paris Hotel of Akins's abuse, but they did not intervene. ( See id., Ex. 2, at 2). Mrs. Neyhart then informed her husband of Akins's actions. Neyhart advised his wife to ignore Akins and to move to another table.
When Mrs. Neyhart moved to another table, Akins followed her and continued to abuse her verbally. ( See id., at 2; Ex. 4, at 2). Mrs. Neyhart again attempted to move to another area of the casino, but Akins followed her, grabbed her, and tried to grope her in a sexual manner. ( See id.).
Mrs. Neyhart informed her husband of Akins's actions. Neyhart found Akins, approached him from the side, and struck him in the side of the face. ( See id., Ex. H). Neyhart struck Akins a second time as they both fell to the floor, Neyhart landing on top of Akins. ( See id.). The blow resulted in serious injuries to Akins, including extensive left eye vitreal hemmorrhaging and undisplaced fracture of the orbital floor and medial wall. These injuries resulted in the loss of Akins's eye and a glass replacement. ( See id., Ex. B, at 2). There is a videotape of the incident, which shows that before he attacked Akins, Neyhart approached a security guard at the casino and handed him something. ( See id., Ex. H). Through discovery, it has been revealed that Neyhart handed the security guard a $100 bill and told him, "You didn't see anything." Counsel for State Farm informed the Court of this discovery at oral argument, and Neyhart's counsel offered no contradiction.
Paul Urban, custodian of the records for the security/video department of Bally's/Paris Las Vegas, attests to the authenticity of the videotape. See Pl.'s Mot. Summ. J., Ex. H).
At the time of this incident, Neyhart had in full force and effect a policy of homeowner's liability insurance with State Farm. The policy provides that
[i]f a claim is made or suit is brought against an insured for damages caused because of bodily injury or property damage to which this coverage applies, caused by an occurrence, we will:
1. pay up to our limit of liability for the damages for which the insured is legally liable; and
2. provide a defense at our expense by counsel of our choice.
( See id., Ex. A, at 14-15).
The policy also includes an intentional act exclusion that provides
Coverage L and Coverage M do not apply to:
a. bodily injury or property damage:
(1) which is either expected or intended by an insured; or
(2) to any person or property which is the result of willful and malicious acts of the insured.
( See id., at 16).
In November 2001, a grand jury in the State of Nevada indicted Neyhart on one count of mayhem and one count of battery with substantial bodily harm. The prosecutors eventually dropped the mayhem count. In September 2002, Neyhart pleaded guilty to battery with substantial bodily harm. The Nevada District Court sentenced him to a suspended sentence of imprisonment, five years probation, a $100,000 fine, and ordered him to attend a counseling program.
In February 2002, Akins sued Neyhart and others in the state district court in Nevada. Akins subsequently died, and the court appointed Laurie Moreno, his wife, as administratrix of his estate. Moreno filed an amended complaint against Neyhart.
In February 2003, Neyhart's counsel made written demand upon State Farm to assume Neyhart's defense. Citing, inter alia, the intentional act exclusion, State Farm denied its duty to pay, indemnify, defend, or otherwise perform under the policy. ( See id., Ex. D).
In June 2003, State Farm filed for declaratory relief in this Court under 28 U.S.C. § 2201, alleging that the intentional act exclusion precludes coverage for Neyhart's intentional acts. State Farm now moves for summary judgment.
II. Discussion
A. Legal Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) ( citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). The moving party bears the burden of establishing that there are no genuine issues of material fact.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts than establish a genuine issue exists for trial. See id. at 325; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).
B. Analysis
Louisiana courts interpret an insurance policy in accordance with the general rules of contract interpretation. See Thermo Terratech, 265 F.3d at 334 (citing Louisiana Ins. Guar. Ass'n v. Interstate Fire Cas. Co., 630 So.2d 759, 763 (La. 1994)). This requires a judicial determination of the common intent of the parties to the contract. See id. at 334. The intent of the parties, "as reflected by the words of the policy [,] determine[s] the extent of coverage." Id. A court construes the terms of an insurance policy according to their "general, ordinary, plain, and proper meaning . . . unless [they] have acquired a technical meaning." Id. Moreover, "[a]n insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by the terms or so as to achieve an absurd conclusion." Carrier v. Reliance Ins. Co., 759 So.2d 37, 43 (La. 2000). When the language of an insurance policy is clear, the policy must be enforced as written. Thermo Terratech, 265 F.3d at 334 (citing Reynolds v. Select Props. Ltd., 634 So.2d 1180, 1183 (La. 1994)). If the language in the policy is ambiguous, it must be construed against the drafter of the policy. See id. (citing Oaks v, Dupuy, 653 So.2d 165, 168 (La.Ct.App. 1995)).
Exclusions from coverage contained in an insurance policy must be "clearly and expressly set forth." Id. (citing Ogima v. Rodriguez, 799 F. Supp. 626, 630 (M.D. La. 1992)). Courts construe exclusionary provisions in insurance contracts strictly against the insurer. Garcia v. St. Bernard Parish School Bd., 576 So.2d 975, 976 (La. 1991). Under this rule of strict construction, courts construe equivocal language that seeks to narrow an insurer's obligation strictly in favor of the insured and against the insurer. See Carrier, 759 So.2d at 43. The strict construction principle is, however, subject to exceptions. One exception is that "the rule applies only if the language is susceptible to two or more reasonable interpretations." Id. (emphasis in original). Therefore, if the language contained in an exclusionary clause is susceptible to more than one reasonable interpretation, the court must adopt the interpretation that provides coverage to the insured. See id. (citing Talley v. Blue Cross Blue Shield of La., 760 So.2d 1193, 1195 (La.Ct.App. 2000)).
The dispositive issue here is Neyhart's intent. Once again, the policy exclusions provide that
[i]f a claim is made or suit is brought against an insured for damages caused because of bodily injury or property damage to which this coverage applies, caused by an occurrence, we will:
1. pay up to our limit of liability for the damages for which the insured is legally liable; and
2. provide a defense at our expense by counsel of our choice.
( See id., Ex. A, at 14-15).
The intentional act exclusion provides that
Coverage L and Coverage M do not apply to:
a. bodily injury or property damage: (1) which is either expected or intended by an insured; or
(2) to any person or property which is the result of willful and malicious acts of the insured.
Coverage L is personal liability coverage, and Coverage M covers "Medical Payments to Others." ( See Pl.'s Mot. Summ. J., Ex. A, at 14-15).
The exclusion will preclude coverage if either paragraph (1) or (2) is satisfied. The Court considers these provisions seriatim.
In support of his argument that the first provision does not preclude coverage, Neyhart refers the Court to two Louisiana Supreme Court decisions that have interpreted intentional act exclusions. In Pique v. Saia, the court found that a similar clause, which excluded "bodily injury . . . which is either expected or intended from the standpoint of the Insured," was ambiguous because "the exclusion could be interpreted to bar recovery for either intentional and negligent injuries or only an intentional injury." 450 So.2d 654, 655 (La. 1984). The court further held that "[a]n injury is intentional, i.e., the produce of an intentional act, only when the person who acts either consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to the result." Id. (citing Bazley v. Tortorich, 397 So.2d 475 (La. 1981)).
In Breland v. Schilling, the court revisited the intentional act exclusion that it treated in Pique. 550 So.2d 609, 610 (La. 1989). In Breland, the plaintiff either "dropped, tossed, or threw" a softball in the direction of the defendant, striking the defendant on the chin. See id. The defendant then struck the plaintiff on the chin. See id. Because the plaintiff's mouth was open when the defendant struck him, unusual fracturing occurred, which resulted in severe injuries. See id. The defendant argued that he did not intend the severity of the injuries and that the policy exclusion did not bar coverage. See id. The Supreme Court agreed and concluded that the intentional act exclusion did not apply. See id. at 614. It further held that
when a minor bodily injury is intended, and such results, the injury is barred from coverage. When serious bodily injury is intended, and such results, the injury is also barred from coverage. When a severe injury of a given sort is intended, and a severe injury of any sort occurs, then coverage is also barred. But when a minor injury is intended, and a substantially greater or more severe injury results, whether by chance, coincidence, accident, or whatever, coverage for the more severe injury is not barred. Whether a given resulting bodily injury was intended "from the standpoint of the insured" within these parameters is a question of fact.Id.
The insured's subjective intent, "as well as his reasonable expectations as to the scope of his insurance coverage, will determine whether an act is intentional." Yount v. Maisano, 627 So.2d 148, 152 (La. 1993).
The testimony of the insured as to his intent is only one factor that the Court must consider. See Yount, 627 So.2d at 152. The Court must also consider all the facts and circumstances in the record to determine whether the insured expected or intended the injury. See id. Indeed, the Louisiana Supreme Court and the courts of appeal have limited Breland's holding to situations in which the resulting injuries are "freakish." See Yount, 627 So, 2d at 152-53 n. 7; Henderson v. Sellers, 861 So.2d 923, 930 (La.Ct.App. 2003). Considering the totality of the circumstances here, the Court finds that there is a weak issue of material fact concerning Neyhart's intent. Neyhart attests that he "did not reasonably expect or intend the resulting harm to Mr. Akins." (Def.'s Mem. Opp. Mot. Summ. J., Ex. 1). Although it is clear chat Neyhart intended the blows he inflicted upon Akins to produce pain and injury in retaliation for the latter's behavior toward Neyhart's wife, Neyhart's affidavit creates an issue of fact as to whether he intended to inflict severe bodily injuries. Although Neyhart barely escapes summary judgment on the "expected or intended" prong of the exclusion, the Court finds that the "willful and malicious acts" prong precludes coverage. This provision precludes coverage for willful and malicious acts of the insured. ( See Pl.'s Mot. Summ. J., Ex. A, at 16). The Louisiana Third Circuit Court of Appeal has interpreted the word "willful" in this exclusion to include "conduct which is still merely negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is treated in many respects as if harm was intended." Keathley v. State Farm Fire Casualty Ins. Co., 594 So.2d 963, 965 (La.Ct.App. 1992); see also Thomas v. Fontenot, 647 So.2d 643, 644 (La.Ct.App. 1994) (same). Further, the Court said that "willful" conduct "is usually accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow." See Keathley, 594 So.2d at 965 (citing PROSSER, LAW OF TORTS, § 34, at 187-89 (3d ed. 1964)). Relying on Black's dictionary, the court defined "malicious" conduct as "wrongful and done intentionally without just cause or excuse." Keathley, 594 So.2d at 965; see also Thomas, 647 So.2d at 644 (same). According to Black's, "willful and malicious injury" requires
an intent to commit a wrong either through actual malice or from which malice will be implied. Such an injury does not necessarily involve hatred or ill will, as a state of mind, but arises from intentional wrong committed without just cause or excuse.Thomas, 647 So.2d at 644.
In contrast to the "expected or intended" exclusion, the Court in Keathley held that under the willful and malicious acts provision, "it is immaterial whether the defendant intended the actual resulting injuries." Keathley, 594 So.2d at 965-66 (emphasis added). The Keathley Court found that the willful and malicious acts exclusion applied because
when a person strikes another from behind without warning or notice, he must have, intended for harm to follow. This conduct shows indifference to the consequences that may flow from his actions as well as acting wrongfully and without just cause.594 So.2d at 966.
Here, although Neyhart did not strike Akins from behind, the videotape shows that he struck Akins from the side without warning or notice. ( See Pl.'s Mem. Supp. Mot. Summ. J., Ex. H). The videotape clearly shows that Neyhart approached an unaware Akins from the side and punched him in the face. ( See id.). The blow was sufficiently severe to knock Akins over, whereupon Neyhart punched Akins again as he fell to the floor, landing on top of him. ( See id.). Akins had no opportunity to protect himself as he was unaware that the attack was coming. ( See id.). Further, when Neyhart hit Akins a second time when he was down, he manifested an intention to compound the harm that was already severe enough to fell Akins. Clearly, Neyhart intended some harm here, and his actions demonstrate more than a conscious indifference to the injuries that an unaware Akins would sustain. As such, his conduct fully satisfies the willful and malicious acts exclusion.
In addition, Neyhart pleaded guilty in Nevada state court to battery with substantial bodily harm in violation of Nevada Revised Statute 200.481(2)(e). ( See Pl.'s Mem. Supp. Mot. Summ. J., Exs. F G). Neyhart's guilty plea is admissible in a subsequent civil suit under federal law, see FED. R. EVID. 410, and under Louisiana law as a statement against interest, see West ex. rel. West v. Watson, 843 So.2d 565, 570-71 (La.Ct.App. 2003); Hooper, 782 So.2d at 1034 (citing Shepard v. Sheeler, 701 So.2d 1308 (La. 1997). Under Nevada law, battery is "any willful and unlawful use of force or violence upon the person of another." NEV. REV. STAT. § 200.481(1) (a). Further, substantial bodily harm is a "[b]odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement: or protracted loss of impairment of the function of any bodily member or organ; or prolonged physical pain." NEV. REV. STAT. § 0.060(1) — (2).
At Neyhart's rearraignment, the following colloquy between Neyhart and the court occurred:
THE COURT: The prior plea is withdrawn. You stand charged now under Count II of the Indictment with Battery With Substantial Bodily Harm. It's alleged to have occurred in Clark County on or about August 6th of the year 2001 and further alleges that you willfully and unlawfully used force or violence upon the person of Dedric, D-E-D-R-I-C, Akins, A-K-I-N-S, by striking that person in the head with your fist, knocking him to floor [sic], which resulted in substantial bodily harm to him. Did you do this?
DEFENDANT NEYHART: Yes, Your Honor.
THE COURT: How do you plead today to this charge?
DEFENDANT NEYHART: Guilty, Your Honor.
THE COURT: Are you pleading guilty because in truth and in fact you are guilty?
DEFENDANT NEYHART: Yes, Your Honor.
THE COURT: Are you pleading guilty here today of your own free will, freely and voluntarily?
DEFENDANT NEYHART: Yes, Your Honor.
(Pl.'s Mem. Supp. Mot. Summ. J., Ex. G, at 2).
Based on this colloquy, it is clear that Neyhart admitted that he wilfully and unlawfully used force or violence upon Akins by striking him in the head with his fist. ( Id., Ex. F, Ex. 1).
Neyhart argues than the second exclusion requires a "willful and malicious" act, not merely a "willful" act, as stipulated to in the plea agreement. This argument is unavailing. The Court has already held that Neyhart's act was willful and malicious, and the evidence of the plea merely supports the "willful" character of his actions. Neyhart's acts were wrongful and done intentionally without just cause or excuse. Thomas, 647 So.2d at 644. Although Neyhart argues that he struck Akins to force him to desist from verbally abusing and touching his wife, this is not just cause. Like Neyhart's wife, Neyhart could have informed security personnel of Akins's actions. Indeed, the videotape demonstrates that security personnel were present when Neyhart attacked Akins. ( See Pl. `s Mot. Summ. J., Ex. H). He could easily have asked security to intervene with Akins instead of taking matters into his own hands. This argument fails.
IV. Conclusion
For the foregoing reasons, the Court grants State Farm's motion for summary judgment.