Travelers Indem. Co. v. Forrest Cnty.

195 F.Supp.3d 890

The TRAVELERS INDEMNITY COMPANY, et al., Plaintiffs

v.FORREST COUNTY, et al., Defendants.

CIVIL ACTION NO. 2:14-CV-22-KS-MTP

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

Signed July 18, 2016

Charles Greg Copeland, Mary Jordan Kirkland, Copeland, Cook, Taylor & Bush, PA, Ridgeland, MS, Dennis M. Dolan—PHV, Litchfield Cavo, LLP, Chicago, IL, for Plaintiffs.

S. Robert Hammond, Jr., S. Robert Hammond, Jr., Attorney at Law, David B. Miller, Forrest County Board of Supervisors, Annie L. Amos, Annie L. Amos Law Offices, PLLC, Scott Joseph Schwartz, Scott J. Schwartz, PA, Derek Royce Arrington, Jackson & Arrington, PLLC, Earl Lindsay Carter, Jr., Carter Law Office, PLLC, Hattiesburg, MS, Charles E. Lawrence, Jr., C. G. Law Group, Crystal Wise Martin, Precious Tyrone Martin, Ratoya J. Gilmer, Suzanne Griggins Keys, Precious Martin, Sr. and Associates, PLLC, Jackson, MS, Alexander T. Brown—PHV, Michael J. Abrams—PHV, William G. Beck—PHV, Kevin M. McKenzie—PHV, Lathrop & Gage, LLP, Kansas City, MO, for Defendants.

MEMORANDUM OPINION AND ORDER

Keith Starrett, UNITED STATES DISTRICT JUDGE

For the reasons below, the Court grants in part and denies in part First Mercury Insurance Company's Motion for Summary Judgment [437] and denies the Bivens Parties' Motion for Partial Summary Judgment [434] as to First Mercury's duty to defend.

I. BACKGROUND

This is a liability insurance coverage case arising from a civil rights lawsuit. The Court previously discussed the case's background. See Travelers v. Forrest County , No. 2:14–CV–22–KS–MTP, 164 F.Supp.3d 899, 900 – 02, 2016 WL 626549, at *1–2, 2016 U.S. Dist. LEXIS 18288, at *6–*9 (S.D.Miss. Feb. 16, 2016) ; Bivens v. Forrest County , No. 2:13–CV–8–KS–MTP, 2015 WL 1457529, at *1–3, 2015 U.S. Dist. LEXIS 40602, at *3–*10 (S.D.Miss. Mar. 30, 2015). On February 16, 2016, the Court granted [370] motions for judgment on the pleadings filed by Zurich Specialties London Limited ("ZSLL"), Gemini Insurance Company, and Steadfast Insurance Company. See Travelers , 2016 WL 626549 at *9–10, 2016 U.S. Dist. LEXIS 18288 at *31–*32. The Court ruled that the Bivens Plaintiffs¹ had not alleged any specific wrongful acts or omissions during the applicable policy periods, and that ZSLL, Gemini, and Steadfast had no duty to defend or indemnify the Bivens Defendants against the Bivens Plaintiffs' claims.

The parties then filed numerous dispositive motions [258, 344, 346, 349, 351, 353, 354, 355, 359, 361, 363, 365], each addressing an insurer's duty to defend and/or indemnify the Bivens Defendants against the Bivens Plaintiffs' claims. On April 20, 2016, the Bivens Plaintiffs filed a Third Amended Complaint. See Third Amended Complaint, Bivens v. Forrest County , No. 2:13-CV-8-KS-MTP (S.D. Miss. Apr. 20, 2016), ECF No. 307. Anticipating that the parties would need to address the Bivens Plaintiffs' new allegations, the Court denied [401] all pending dispositive motions without prejudice, and set a new motions deadline. Once again, the parties filed numerous dispositive motions [402, 404, 406, 408, 410, 412, 414, 416, 418, 420, 422, 424, 426, 428, 430, 432, 434, 437].

The Bivens Plaintiffs and Defendants filed a Motion for Reconsideration [424] of the Court's order [370] granting the motions for judgment on the pleadings. On June 22, 2016, the Court granted [502] the motion for reconsideration in part and denied it in part. See Travelers Ind. Co. v. Forrest County , No. 2:14–CV–22–KS–MTP, 2016 WL 3512233, 2016 U.S. Dist. LEXIS 81206 (S.D.Miss. June 22, 2016). Specifically, the Court granted the motion with respect to its previous ruling that ZSLL had no duty to defend or indemnify the Bivens Defendants in the underlying case, but the Court denied the motion in all other respects. Id. at *4, 2016 U.S. Dist. LEXIS 81206 at *17, 2016 WL 3512233. The Court held that the Bivens Plaintiffs had alleged specific omissions and/or breaches of duty by the Bivens Defendants during the ZSLL policy periods, id. at *3–4, 2016 U.S. Dist. LEXIS 81206 at *14–*16, 2016 WL 3512233, but that they had not alleged any specific wrongful acts during the Gemini and Steadfast policy periods. Id. at *2, 2016 U.S. Dist. LEXIS 81206 at *13, 2016 WL 3512233. For these same reasons, the Court granted [504] the Motions for Summary Judgment [410, 414] filed by Steadfast and Gemini on June 23, 2016. See Travelers Ind. Co. v. Forrest County , No. 2:14–CV–22–KS–MTP, 2016 WL 3548761, 2016 U.S. Dist. LEXIS 81826 (S.D.Miss. June 23, 2016).

On June 29, 2016, the Court granted in part and denied in part [515] the Motion for Summary Judgment [418] filed by The Travelers Indemnity Company, The Travelers Indemnity Company of America, United States Fidelity & Guaranty Company, and St. Paul Fire and Marine Insurance Company (collectively, "Travelers"), and it granted the Bivens Parties' Motion for Partial Summary Judgment [432] as to Travelers. Travelers Ind. Co. v. Forrest County , No. 2:14–CV–22–KS–MTP, ––– F.Supp.3d ––––, 2016 WL 3626330, 2016 U.S. Dist. LEXIS 84534 (S.D.Miss. June 29, 2016). Specifically, the Court held that Travelers had no duty to defend or indemnify the Bivens Defendants under a variety of general liability policies issued to Forrest County and the City of Hattiesburg, but that it did have a duty to defend the Bivens Defendants under a law enforcement liability policy issued to the Forrest County Board of Supervisors. Id. at *6–7, 2016 U.S. Dist. LEXIS 84534 at *22, 2016 WL 3626330.

On June 30, 2016, the Court granted in part and denied in part [516] Sirius America Insurance Company's Motion for Summary Judgment [402] and granted in part and denied in part the Bivens Parties' Motion for Partial Summary Judgment [422] as to Sirius America. Travelers Ind. Co. v. Forrest County , No. 2:14–CV–22–KS–MTP, 2016 WL 3653892, 2016 U.S. Dist. LEXIS 85399 (S.D.Miss. June 30, 2016). Specifically, the Court held that Sirius America has a duty to defend the Bivens Defendants under a law enforcement liability policy effective from November 13, 1984, to November 13, 1985, but that it has no duty to defend or indemnify under a policy effective from October 7, 1984, to November 13, 1984. Id. at *6, 2016 U.S. Dist. LEXIS 85399 at *11, 2016 WL 3653892. The Court additionally held that Sirius America has no duty to defend or indemnify any of the claims against the Bivens Defendants Larry James, Jim Erwin, and Arlon Moulds. Id. at *6, 2016 U.S. Dist. LEXIS 85399 at *14, 2016 WL 3653892.

On July 1, 2016, the Court granted in part and denied in part Great American E&S Insurance Company's Motion for Summary Judgment [404] and denied the Bivens Parties' Motion for Partial Summary Judgment as to Great American. Travelers Indem. Co. v. Forrest County , No. 2:14–CV–22–KS–MTP, 2016 WL 3653968, 2016 U.S. Dist. LEXIS 86108 (S.D.Miss. July 1, 2016). Specifically, the Court found that Great American has no duty to defend the Bivens Defendants in the underlying case, but the Court could not determine whether it has a duty to indemnify under several law enforcement liability policies issued to the Forrest County Sheriff's Department from November 13, 1996, to November 13, 2000. Id. at *5–6, 2016 U.S. Dist. LEXIS 86108 at *19–*20, 2016 WL 3653968. The Court now considers ZSLL's Motion for Summary Judgment [416].

On July 7, 2010, the Court granted in part and denied in part Zurich Specialties London Limited's Motion for Summary Judgment [416]. Travelers Indem. Co. v. Forrest County , No. 2:14–CV–22, 2016 WL 3680864, 2016 U.S. Dist. LEXIS 88095 (S.D.Miss. July 7, 2016). Specifically, the Court granted the motion insofar as it found that ZSLL had no duty to defend or indemnify the Bivens Defendants against any claims asserted by the Bivens Plaintiffs arising from wrongful actions or omissions committed by the following individual Bivens Defendants: Gene Walters, Joe Hopstein, Henry Brown, Terry Martin, Larry James, Jim Erwin, and Arlon Moulds. Id. at *8, 2016 U.S. Dist. LEXIS 88095 at *20–*21, 2016 WL 3680864. The Court also granted the motion with respect to ZSLL's duty to defend and/or indemnify the Bivens Defendants under a ZSLL policy effective from November 13, 2001, to November 13, 2002. Id. at *8, 2016 U.S. Dist. LEXIS 88095 at *10, 2016 WL 3680864. The Court denied the motion in all other respects. Id. at *8, 2016 U.S. Dist. LEXIS 88095 at *22, 2016 WL 3680864.

On July 11, 2016, the Court granted in part and denied in part the Motion for Summary Judgment [420] filed by Scottsdale Insurance Company and denied the Bivens Parties' Motion for Partial Summary Judgment [428]. Travelers v. Forrest County , No. 2:14–CV–22–KS–MTP, 2016 WL 3751643, 2016 U.S. Dist. LEXIS 89513 (S.D.Miss. July 11, 2016). Specifically, the Court found that Scottsdale has no duty to defend or indemnify the Bivens Defendants under its public officials & employees liability policies, and that it has no duty to defend Arlon Moulds and Ricky Rawls. Id. at *5, 2016 U.S. Dist. LEXIS 89513 at *20, 2016 WL 3751643. However, the Court found that there exists a genuine dispute of material fact as to the application of a notice provision in Scottsdale's law enforcement liability policy. Id. at *3–4, 2016 U.S. Dist. LEXIS 89513 at *17–*18, 2016 WL 3751643.

On July 12, 2016, the Court granted Zurich American Insurance Company ("Zurich American") and American Zurich Insurance Company's ("American Zurich") Motion for Summary Judgment as to their commercial and general liability policies and Zurich American's Motion for Summary Judgment as to its excess policies. Travelers v. Forrest County , No. 2:14–CV–22–KS–MTP, 2016 WL 3855459, 2016 U.S. Dist. LEXIS 90223 (S.D.Miss. July 12, 2016). Specifically, the Court found that the claims asserted against the Bivens Defendants in the underlying case are excluded from coverage under the Zurich CGL policies and excess policies because they arise out of law enforcement activities. Id. at *4–6, 2016 U.S. Dist. LEXIS 90223 at *18–*20, 2016...