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Mesa Underwriters Specialty Insurance Co. v. Daffy's On River, Inc.

United States District Court, S.D. Mississippi, Southern Division

October 8, 2014

MESA UNDERWRITERS SPECIALTY INSURANCE COMPANY, Plaintiff,
v.
DAFFY'S ON THE RIVER, INC.; NICHOLAS BURGE; and WINSTON GENE JONES, Defendants.

MEMORANDUM OPINION GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

LOUIS GUIROLA, Jr., Chief District Judge.

BEFORE THE COURT is the Motion for Summary Judgment [33] filed by the plaintiff, Mesa Underwriters Specialty Insurance Company, in this declaratory judgment action concerning insurance coverage. The defendant, Nicholas A. Burge, has filed a response in opposition to the Motion, and Mesa has submitted a reply.[1] After reviewing the submissions of the parties and the applicable law, the Court finds the Motion for Summary Judgment should be granted.

FACTS

On April 16, 2013, a vehicle driven by Winston Gene Jones struck a pedestrian, Nicholas Burge, on Lorraine Road in Biloxi, Mississippi. It is undisputed that, prior to the accident, Jones consumed alcoholic beverages at a bar called Daffy's On the River. After the accident, Jones was arrested for driving under the influence of alcohol and for leaving the scene of an accident. The Mississippi Crime Laboratory determined that Jones's blood-alcohol content was 0.24%. (Pl.'s Mot., Ex. F, ECF No. 33-6). On July 25, 2013, Jones pled guilty to driving under the influence. (Pl.'s Mot., Ex. G, ECF No. 33-7).

Candace Thompson, a Daffy's bartender, testified that Jones entered and exited the bar approximately four to five times on the night of the accident. (Def.'s Resp., Ex. A at 14, ECF No. 37-1). She served Jones at least two beers and other unspecified alcoholic beverages, but her attorney would not permit her to testify as to the specific beverages served or the number of beverages served to Jones on the night of the accident. ( Id. at 17-19).

On May 20, 2013, counsel for Burge sent a notice of claim letter to Daffy's, alleging that Jones "consumed and was over-served several alcoholic beverages while he was a patron" at Daffy's. (Pl.'s Mot., Ex. A, ECF No. 33-1). Daffy's submitted the notice of claim letter to Mesa, which had issued Daffy's a commercial general liability policy for the period December 19, 2012, through December 19, 2013. (Pl.'s Mot., Ex. B, ECF No. 33-2). The policy excludes coverage for:

c. Liquor Liability
"Bodily injury" or "property damage" for which any insured may be held liable by reason of
(1) Causing or contributing to the intoxication of any person;
(2) The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or
(3) Any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages. This exclusion applied only if you are in the business of manufacturing, distributing, selling, serving or furnishing alcoholic beverages.

( Id. at 4).

Mesa filed this lawsuit and the present Motion for Summary Judgment seeking a declaration that it does not have a duty to defend or indemnify ...


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