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The Travelers Home and Marine Insurance Co. v. Wilson

United States District Court, E.D. Arkansas, Western Division

September 22, 2016

THE TRAVELERS HOME AND MARINE INSURANCE COMPANY and THE AUTOMOBILE INSURANCE COMPANY OF HARTFORD, CONNECTICUT, Plaintiffs,
v.
EDGAR L. WILSON and PATRICIA RODDY on Behalf of the Estate of Dale Levon Metcalf, Deceased, Defendants.

          OPINION AND ORDER

          SUSAN WEBBER WRIGHT UNITED STATES DISTRICT JUDGE

         Plaintiffs, 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.

         Background

         The undisputed facts are as follows.[1] 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.

         In 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.

         On the 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.

         On the 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.

         More 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 recovered.

         Dr. 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 was possible.

         Mr. 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.

         Mr. 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.

         Mr. 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.

         Standard of Review

         A court 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.

         Discussion

         In 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. 2004).

         The 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 policy provides:

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.

         The 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 000012.

         As to 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 ...

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