United States District Court, E.D. Arkansas, Western Division
THE TRAVELERS HOME AND MARINE INSURANCE COMPANY and THE AUTOMOBILE INSURANCE COMPANY OF HARTFORD, CONNECTICUT, Plaintiffs,
EDGAR L. WILSON and PATRICIA RODDY on Behalf of the Estate of Dale Levon Metcalf, Deceased, Defendants.
OPINION AND ORDER
WEBBER WRIGHT UNITED STATES DISTRICT JUDGE
Travelers Home and Marine Insurance Company
(“Travelers”) and the Automobile Insurance
Company of Hartford, Connecticut (“Automobile”),
bring this action for declaratory judgment against Edgar L.
Wilson (“Wilson”) and Patricia Roddy
(Roddy”) on behalf of the Estate of Dale Levon Metcalf.
Plaintiffs seek a determination that policies of insurance
they issued to Wilson afford him no coverage with respect to
claims made against Wilson by Roddy in underlying litigation
in state court. The matter is before the Court on
Plaintiffs' motion for summary judgment. Defendant Roddy
responded in opposition to Plaintiffs' motion and
Plaintiffs filed a reply to Roddy's response. For the
reasons that follow, the Court grants Plaintiffs' motion
for summary judgment.
undisputed facts are as follows. Travelers issued homeowners
policy number 984555151 633 1 to Edgar Wilson and Janet S.
Wilson beginning in 2009. The policy insured a dwelling
located at 7 Apache Circle, Lonoke, Arkansas. The relevant
policy period is April 1, 2012 to April 1, 2013. Mr. Wilson
paid a premium for and the policy provided personal liability
coverage pursuant to certain terms, limitations, exclusions,
and conditions set forth in the policy. Automobile issued a
personal liability umbrella of security policy number
932779781 311 to Edgar Wilson and Janet S. Wilson beginning
in 2009. The relevant policy period is April 1, 2012 to April
1, 2013. Mr. Wilson paid a premium for and the policy
provided personal excess liability coverage pursuant to
certain terms, limitations, exclusions, and conditions set
forth in the policy.
approximately 1999, Edgar and Janet Wilson purchased a liquor
store in DeValls Bluff, Arkansas. Sometime after 1999, but
before the shooting at issue, the Wilsons transferred some of
their holdings in the liquor store to a corporation known as
Edgar L. Wilson Enterprises, Inc., which they owned. The
corporation did business as Happy Times Liquor. Official
records for the subject property in 2012 list the record
owners as Edgar L. Wilson and Janet S. Wilson. Edgar L.
Wilson Enterprises, Inc. d/b/a Happy Times Liquor was
separately insured by Hartford Casualty Insurance Company
(“Hartford”) under a business liability policy.
Mr. Wilson not only owned the corporation that owned the
liquor store but also was an employee of the liquor store.
night of September 14, 2012, Wilson and Brenda Dolphin were
working at the liquor store. Dale Levon Metcalf came on the
liquor store's premises. Mr. Wilson knew Metcalf from
previous encounters with him in connection with the liquor
store. According to Wilson, there had been several incidents
between the two where Metcalf had cursed Wilson or threatened
his employees. Mr. Wilson had never know Metcalf to carry a
gun or knife.
night at issue, Wilson took Dolphin outside the liquor store
to point Metcalf out to her. Ms. Dolphin claimed not to know
Metcalf. While outside, on the liquor store premises, Metcalf
and Wilson engaged in a verbal argument. At some point,
Wilson pulled a .25 caliber pistol from his pocket and shot
Metcalf. The record reflects that Wilson had a concealed
carry permit and was trained in the use of a weapon. Mr.
Metcalf died at the scene.
than one eyewitness to the shooting says Metcalf turned to
leave when Wilson charged him, shooting him in the back of
the head. Wilson said Metcalf charged him and he shot him in
self defense. Mr. Wilson claims he thought Metcalf had a
weapon but admits he never saw a weapon. No weapon was ever
Steven Erickson, deputy medical examiner, a physician and
forensic pathologist, testified the bullet Wilson fired
entered Metcalf's head right in front of his left ear and
traveled left to right, stopping just beneath the skin of his
right temple. Stippling on Metcalf's skin at the entrance
wound indicated Wilson fired the gun at close range to
Metcalf. Dr. Erickson estimated the distance to have been
three to four feet, which he described as a “can't
miss distance.” He could not say from his examination
how Metcalf's body was positioned, whether forward- or
rear-facing, when Wilson shot him. Dr. Erickson said either
Wilson was charged with murder in the first degree. Following
a two-day jury trial, he was found guilty of second degree
murder. The jury rejected his claim of self-defense. Mr.
Wilson was sentenced to fifteen years in the Arkansas
Department of Correction. He did not appeal and the time to
appeal has run.
Metcalf's estate, by and through Roddy, filed a wrongful
death lawsuit on March 12, 2013, against Wilson and Edgar L.
Wilson, Inc. In the complaint, Roddy alleges Metcalf was a
customer of Edgar L. Wilson, Inc. d/b/a/ Happy Times Liquor
Store, at the time of the shooting. Ms. Roddy alleges
Wilson's acts were intentional.
Wilson requested coverage under his personal and business
policies. Plaintiffs are providing a defense to Wilson under
a reservation of rights. Hartford is defending Wilson and his
corporation under a reservation of rights also. On August 26,
2015, Plaintiffs filed this action seeking a determination of
whether Wilson's personal policies with them provide
coverage to him for the shooting of Metcalf. Plaintiffs named
Wilson and Roddy, on behalf of Metcalf's estate, as
defendants. Mr. Wilson was served but has never appeared or
answered. Plaintiffs filed a motion for default judgment
against him. They now seek summary judgment.
should enter summary judgment if the evidence, viewed in the
light most favorable to the nonmoving party, demonstrates
that there is no genuine dispute as to any material act and
that the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a); see also Anderson v. Liberty
Lobby, Inc. 477 U.S. 242, 249-50 (1986). A genuine
dispute of material fact exists only if the evidence is
sufficient to allow a jury to return a verdict for the
nonmoving party. Anderson, 477 U.S. at 249.
diversity cases, the federal courts look to the law of the
forum state when interpreting the provisions of an insurance
contract. Shelter Ins. Cos. v. Hildreth, 255 F.3d
921, 925 (8th Cir. 2001). If the language of the policy is
ambiguous, courts will construe the policy liberally in favor
of the insured and strictly against the insurer. Elam v.
First Unum Life Ins. Co., 57 S.W.3d 165, 169 (Ark.
2001). “Language is ambiguous if there is doubt or
uncertainty as to its meaning and it is fairly susceptible to
more than one reasonable interpretation.” Id.
Whether language of the policy is ambiguous is ordinarily a
question of law to be decided by the court. Castaneda v.
Progressive Classic Ins. Co., 166 S.W.3d 556, 561 (Ark.
homeowners policy Travelers issued to Wilson and his wife
insures a dwelling in Lonoke, Arkansas. Under Section II -
Liability Coverages, Coverage E - Personal Liability, the
If a claim is made or a suit is brought against an
‘insured' for damages because of ‘bodily
injury' . . . caused by an ‘occurrence' to
which this coverage applies, we will:
1. Pay up to our limit of liability for the damages for which
an ‘insured' is legally liable . . . and
2. Provide a defense at our expense by counsel of our choice,
even if the suit is groundless, false or fraudulent[.]
Pls.' Mot. Summ.J., Ex. A (ECF No, 25-1) at 000026.
homeowners policy defines “insured, ” in relevant
part, as “a. you and residents of your household who
are: (1) Your relatives; or (2) Other persons under the age
of 21 and in the care of any person named above.” Ex. A
at 000011. “Bodily injury” is defined as
“bodily harm, sickness, or disease, including required
care, loss of services, and death that results.” Ex. A
at 000010. The homeowners policy defines
“occurrence” as “an accident, including
continuous or repeated exposure to substantially the same
general harmful conditions, which results during the policy
period, in: a. ‘bodily injury'[.]” Ex. A at
exclusions from coverage, the homeowners policy provides:
Section II - Exclusions, A. Coverage E - Personal Liability
and Coverage F -Medical Payments to Others.
Coverages E and F do not apply to ‘bodily injury' .
1. Which is expected or intended by an ‘insured'
even if the resulting ...