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Great Lakes Insurance SE v. One Stop Mart, LLC

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

June 19, 2019

GREAT LAKES INSURANCE SE PLAINTIFF
v.
ONE STOP MART, LLC, MOHAMED ALABDY, MOE'S MINI MART LLC, KENNETH LOWE, and ORIC LEWIS SR. and KATRELL LEWIS on behalf of their minor child Oric Lewis Jr. and JOHN DOES 1-10 DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          DAVID BRAMLETTE UNITED STATES DISTRICT JUDGE

         This cause is before the Court on the plaintiff Great Lakes Insurance SE (“Great Lakes”)'s Motion for Summary Judgment (docket entry 21) and Amended Motion for Summary Judgment (docket entry 51).

         Having carefully considered the plaintiff's Complaint (docket entry 1) and the defendants' Answer (docket entry 10) as well as the aforesaid motions for summary judgment, the defendants' response (docket entry 57) to Great Lakes' Amended Motion for Summary Judgment, and Great Lakes' “Response” (Reply) (docket entry 61) in Support of its Amended Motion for Summary Judgment, and the parties' memoranda of law, the Court finds as follows:

         Great Lakes issued a commercial lines policy to One Stop Mart LLC, a food mart located at 550 Medgar Evers Boulevard in Fayette, Mississippi. The policy went into effect on December 14, 2016 and expired a year later. This is the only policy under which defendants One Stop Mart, LLC, Mohamed Alabdy, Moe's Mini Mart LLC (collectively “the Moe Defendants”) contend they have coverage. See EXHIBIT 2, Responses to Requests for Production (Producing EXHIBIT 1).

         The Lowe and Lewis Lawsuits

         Great Lakes filed its declaratory judgment action based on two lawsuits, both of which were filed against Moe's Food Mart and Moe Alabdy on May 5, 2017, in the Circuit Court of Jefferson County, Mississippi: (1) Lewis v. Moe's Food Mart, Moe Alabdy & John Does and (2) Lowe v. Moe's Food Mart, Moe Alabdy & John Doe. See EXHIBITS 3 and 4, Amended Complaints. Although the named insured One Stop Mart is not a defendant in either lawsuit, One Stop Mart submitted these lawsuits to Great Lakes, requesting a defense to and indemnification from them. Great Lakes denied One Stop Mart's request for two reasons: First, no insured under the policy is a defendant in either lawsuit (see EXHIBIT 5, September 11, 2017 Letter); and second, even if Moe's Food Mart and Moe Alabdy were insureds, all the allegations fall within the express language of the policy's Assault or Battery Exclusion. Id. Great Lakes told One Stop that the policy provided no coverage for the Lewis and Lowe lawsuits. Id.

         After Lewis and Lowe obtained default judgments (which have since been set aside), they attempted to collect from Great Lakes, but Great Lakes instituted the present Declaratory Judgment Action and moved for summary judgment (see docket entries 21 and 41) based on the same positions Great Lakes took in its declination letter. Even if there is some question as to whether Moe's Food Mart and Moe Alabdy are insured under the Great Lakes' policy issued to One Stop Mart, the allegations of the Lewis and Lowe lawsuits fall precisely within the Assault or Battery Exclusion. Thus, there is no coverage owed by Great Lakes to any of the Moe Defendants or Moe's Food Mart.

         The Carter Lawsuit

         Shortly after Great Lakes moved for summary judgment, the Moe Defendants sought permission to file an Amended Answer (docket entry 23). The most significant aspect of the Amended Answer is the Moe Defendants' attempt to include a third underlying lawsuit as part of their new counterclaim for a failure to defend: Darrius Carter v. Moe's Food Mart & Moe Alabdy & Albert Johnson (docket entry 23-1 at p.5). In its Rebuttal in Support of Summary Judgment (docket entry 41), Great Lakes included the Carter lawsuit in its arguments. Great Lakes also served discovery on the Moe Defendants pertaining to the Carter lawsuit.

         The Court granted the Moe Defendants' Motion to Amend Answer (see docket entry 44). However, the Moe Defendants did not file an Amended Answer. The Court then ordered the Moe Defendants to file their Amended Answer by January 23, 2019 (see docket entry 47). No. Amended Answer has been filed.

         On February 20, 2019, Great Lakes received the Moe Defendants' discovery responses. Therein, the Moe Defendants admit that the only policy under which they contend there is insurance coverage is the December 14, 2016, to December 14, 2017 Great Lakes Policy. See Exhibit 2. The Moe Defendants also admit that the Carter lawsuit alleges that the shooting that caused the injuries occurred on September 13, 2016. See Exhibit 6, Responses to Requests for Admissions; see also Exhibit 7, Carter Complaint, ¶ 6. Whether the Amended Answer is ever filed or not, based on the Carter Complaint there is no duty on the part of Great Lakes to defend any of the Moe Defendants or Moe's Food Mart from the Carter lawsuit.

         Allegations of the Underlying Complaints

         Liability policies have two levels of analysis: the duty to defend and the duty to indemnify. The duty to defend is “broader than the insurer's duty to indemnify” and is based solely on the factual allegations made in the complaint. Titan Indem. Co. v. Pope, 876 So.2d 1096, 1101 (Miss. Ct. App. 2004). To determine whether the duty to defend exists, the Court compares the allegations of the complaint to the insurance policy. Auto. Ins. Co. of Hartford v. Lipscomb, 75 So.3d 557, 559 (Miss. 2011).

         In its Amended Motion for Summary Judgment (docket entry 52), Great Lakes addresses the Carter lawsuit as if the Amended Answer had been filed.

         The Lewis and Lowe cases, filed against Moe's Food Mart and Moe Alabdy, arise out of the same February 11, 2017 shooting that allegedly took place on “the premises of the Moe's Food Mart Store.” See EXHIBITS 3 and 4, ¶¶ 2-3, 6. According to Lewis and Lowe, after they arrived at the store, and while they were “on the premises, ” they were shot and injured. Id., ¶ 7.[1] Lewis and Lowe assert that because “Moe's Food Mart Store [and] Moe Alabdy owed to Darrius Carter a duty of care and a duty to make their premises reasonably safe, ” their conduct proximately caused “the vicious shooting ....” Id., ¶ 16. Based on these allegations, Lewis and Lowe demand compensatory and punitive damages from Moe's Food Mart and Alabdy. Id., ¶¶ 21-22.

         There are no allegations against One Stop Mart, which is never even mentioned in the lawsuits. The Moe Defendants admit that although they contend One Stop Mart is a proper party, they have taken no action to add One Stop Mart as a party. See EXHIBIT 8.

         Based on the allegations of the complaints, and the terms of the policy, Great Lakes argues that no defense is owed to any of the Moe Defendants or to Moe's Food Mart. Because the Assault or Battery Exclusion encompasses the allegations of the Lowe and Lewis complaints, there is no coverage owed.[2] As for the Carter complaint, there was no policy in place at the time of the shooting, so Great Lakes could never owe coverage for Carter. But even if the Carter shooting took place during the Great Lakes policy's effective period, the Assault or Battery Exclusion would bar coverage for that lawsuit.

         Insurance policies are contracts and must be enforced according to their provisions. Noxubee County Sch. Dist. v. United Nat'l Ins. Co., 883 So.2d 1159, 1166 (Miss. 2004). The interpretation of an insurance contract presents a question of law.” Coleman v. Acceptance Indem. Ins. Co., No. 5:08-cv-260(DCB)(JMR), 2009 U.S. Dist. LEXIS 54742, ...


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