United States District Court, N.D. Mississippi, Aberdeen Division
Sharion Aycock UNITED STATES DISTRIC JUDGE
filed this declaratory judgment action on July 28, 2016.
Plaintiff has since filed its Motion for Summary Judgment
. Defendant Sheffield has responded , and Plaintiff
replied . Defendant Becky Winter did not respond to the
and Procedural Background
an action for declaratory judgment filed by Farmers Insurance
Exchange (Farmers). Farmers moves the Court to determine
whether coverage exists under Carlos Fowler's
homeowners' policy covers claims made by the Estate of
Crystal Orick against the Estate of Carlos Fowler in a
lawsuit filed in the Circuit Court of Lee County on September
1, 2011. Defendant Ricky Sheffield is the father of Crystal
Orick and is the representative of the wrongful death estate
of Crystal Orick.
underlying state court cause of action alleges that on May
12, 2011, Fowler, an elderly man, shot and killed Crystal
Orick, who was employed as Fowler's nonmedical, in-home
caretaker. After shooting Orick, Fowler did not attempt to
call 911 but rather fatally shot himself. Police and
forensics reports indicate that, among other substances,
Meprobamate, Benzodiazepines,  Carisoprodol,  and
Hydrocodone were all present in Fowler's body at
the time of his death. The underlying Complaint alleges
wrongful death liability based on an intentional tort cause
of action, as well as negligence. As to the negligence claim,
Orick's Estate alleges that underlying defendants failed
to exercise their duty of reasonable care, and that they knew
or should have known that the environment in which Orick was
exposed was unsafe. Further, Orick's Estate alleges that
the underlying defendants were grossly negligent in failing
to monitor Fowler's actions, and in failing to remove all
weapons and ammunition from his home.
judgment is warranted under Rule 56(a) of the Federal Rules
of Civil Procedure when the evidence reveals there is no
genuine dispute regarding any material fact and that the
moving party is entitled to judgment as a matter of law. The
rule “mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party
who fails to make a sufficient showing to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
allegations, speculation, unsubstantiated assertions, and
legalistic arguments are not an adequate substitute for
specific facts demonstrating a genuine issue for trial.
TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d
754, 759 (5th Cir. 2002). “A party asserting that a
fact cannot be or is genuinely disputed must support the
assertion by citing to particular parts of materials in the
record . . . or showing that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.” Fed.R.Civ.P. 56(c)(1). The court is
only obligated to consider cited materials but may consider
other materials in the record. Id. at 56(c)(3). The
court must resolve factual controversies in favor of the
nonmovant “but only when there is an actual
controversy, that is, when both parties have submitted
evidence of contradictory facts.” Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When such
contradictory facts exist, the court may “not make
credibility determinations or weigh the evidence.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
Mississippi, “the interpretation of an insurance policy
is a question of law, not one of fact.” Corban v.
United Services Auto. Ass'n., 20 So.3d 601, 609
(Miss. 2009) (quoting Noxubee Co. Sch. Dist. v. United
Nat'l Ins. Co., 883 So.2d 1159, 1165 (Miss. 2004)).
Insurance policies are contracts, and as such, must be
enforced according to their written provisions. Id.
(citing Noxubee Co., 883 So.2d at 1166. When parties
to a contract make mutual promises, they are entitled to the
benefit of that bargain and insurance companies must
therefore be able to “rely on their statements of
coverage, exclusions, disclaimers, definitions, and other
provisions.” Id. As such, the court relies
upon familiar rules of construction to discern their meaning.
Progressive Gulf Ins. Co. v. We Care Day Care Center,
Inc., 953 So.2d 250, 253 (Miss. Ct. App. 2006).
policy is to be considered as a whole, giving weight to all
relevant portions and, whenever possible, giving
“operable effect to every provision in order to reach a
reasonable overall result.” Id. (citing J
& W Foods Corp. v. State Farm Mut. Auto. Ins. Co.,
723 So.2d 550, 552 (Miss. 1998). While ambiguities in an
insurance contract are to be construed against the insurer, a
clear and unambiguous contract will be enforced as written.
Id. In reviewing a policy, terms should be
understood in their “plain, ordinary, and popular sense
rather than in a philosophical or scientific sense.”
Blackledge v. Omega Ins. Co., 740 So.2d 295, 298
filed its Motion for Summary Judgment, in which they argue
that there is no duty to provide coverage, including a duty
to indemnify or defend the Fowler Estate for several reasons.
First Plaintiff argues that Orick's claims against Fowler
do not allege an “occurrence” which would trigger
coverage. Second, Plaintiff argues that Orick's claims of
intentional actions are excluded by the intentional act
exclusion of the policy. Third, Plaintiff argues that they
owe no duty to indemnify or defend the Fowler Estate because
its representatives failed to comply with the notice
provisions set forth in the insurance policy.
burden of proving coverage rests with the insured.”
Architex Ass'n, Inc. v. Scottsdale Ins. Co., 27
So.3d 1148, 1157 (Miss. 2010). Farmers has two distinct
obligations to its insured-(1) a duty to indemnify its
insured for covered claims and (2) a duty to furnish a legal
defense to certain claims. Mimmit v. Allstate County Mut.
Ins. Co., 928 So.2d 203, 207 (Miss. Ct. App. 2006).
“Mississippi has adopted the ‘allegations of the
complaint' rule (sometimes referred to as the
eight-corners test) to determine whether an insurer has a
duty to defend, ” pursuant to which the court reviews
the allegations in the underlying complaint to see whether it
states a claim that is within or arguably within the scope of
the coverage provided by the insurance policy. Ingalls
Shipbuilding v. Federal Ins. Co., 410 F.3d 214, 225 (5th
Cir. 2005). In so doing, the court compares the words of the
complaint with the words of the policy, looking “not to
the particular legal theories” pursued by the
plaintiffs, “but to the allegedly tortious conduct
underlying” the suit. Id. (citations omitted).
See also United States Fidelity & Guarn. Co. v.
Omnibank, 812 So.2d 196, 200 (Miss. 2002). “If the
complaint states a claim that is within or arguably within
the scope of coverage provided by the policy, then the
insurer has a duty to defend.” QBE Ins. Corp. v.
Brown & Mitchell, Inc., 591 F.3d 439, 443 (5th Cir.
2009) (applying Mississippi law) (quotation omitted).
duty to indemnify, however, arises only if the facts actually
established in the underlying suit amount to a covered claim.
Estate of Bradley ex rel. Sample v. Royal Surplus Lines
Ins., 647 F.3d 524, 531 (5th Cir. 2011) (applying
Mississippi law). An insurer may have a duty to defend but,
eventually, no duty to indemnify. Moeller v. American
Guar. and Liability Ins. Co., 707 So.2d 1062, 1069
(Miss. 1996). In contrast, “if there is no duty to
defend, there can be ...