United States District Court, D. South Carolina, Charleston Division
CANOPIUS U.S. INSURANCE, INC., Plaintiff,
CHARLES MIDDLETON, JR. d/b/a CHARLEY O’S, OMAR HAMILTON, JAMAR HAMILTON, ANTWONIA HEYWARD, BRANDON GREENE, and LATEIKA JONES, Defendants.
C. NORTON, UNITED STATES DISTRICT JUDGE.
following matters are before the court on plaintiff Canopius
U.S. Insurance, Inc.’s (“Canopius”) first
and second motions for summary judgment, as well as
defendants Omar Hamilton, Jamar Hamilton, Antwonia Heyward
(the “Hamilton-Heyward defendants”), and Lateika
Jones’s (“Jones, ” together with the
Hamilton-Heyward defendants, the “moving
defendants”) competing motion for summary judgment. For
the following reasons, the court denies Canopius’s
first motion for summary judgment, grants Canopius’s
second motion for summary judgment, and grants in part and
denies in part the moving defendants’ motion for
early morning of February 22, 2015, the moving defendants and
defendant Brandon Greene (“Greene”) were shot at
Charley O’s, a North Charleston, South Carolina,
nightclub owned by defendant Charles Middleton, Jr.
(“Middleton”). Though it is unclear what exactly
precipitated the shooting, the local media reported that
police investigators believe the shooting related to a
longstanding feud between Stanley Greene and defendant
Omar Hamilton. Pl.’s First Mot. Exs. B, C (local news
articles describing investigation of the incident). Two
defendants-Jones and Greene-also suggested that the gunfire
was related to some sort of feud in their correspondence with
Canopius. See Pl.’s First Mot. Ex. H (letter
from Jones’s counsel stating that “a customer . .
. began firing because of some feud”); Pl.’s
First Mot. Ex. G (letter from Greene’s counsel
including draft complaint which alleges that “a dispute
. . . escalated into gunfire”). However, this
information has not been confirmed or presented in the form
of admissible evidence. All that is known is multiple shots
were fired and the incident caused a number of patrons to
flee the premises. Pl.’s First Mot. Ex. J, Jones
Interrogatories at 3.
time of the incident, Middleton held a commercial general
liability insurance policy with Canopius (the
“Policy”). Pl.’s First Mot. Ex. A, Policy.
Under the Policy, Canopius agreed to “pay those sums
that [Middleton] becomes legally obligated to pay as damages
because of ‘bodily injury’” when such
“‘bodily injury’ is caused by an
‘occurrence’” during the policy period.
Id. at 22. “Bodily injury” is defined
under the Policy as “bodily injury, sickness or disease
sustained by a person.” Id. at 33. An
“occurrence” is defined as “an accident,
including continuous or repeated exposure to substantially
the same general harmful conditions.” Id. at
35. The Policy provides a $1, 000, 000 per occurrence limit
for this coverage. Id. at 17.
Policy also contains an Assault and Battery Exclusion
(“A/B Exclusion”), which provides that coverage
“does not apply to any claim and/or cause of action
1. An assault and/or battery regardless of culpability or
2. A physical altercation; or
3. Any act or failure to act to prevent or suppress such
assault and/or battery or physical altercation.
Id. at 47. The A/B Exclusion further specifies that
the Policy also excludes the following:
4. Damages arising out of allegations of negligent hiring,
placement, training or supervision, or to any act, error, or
omission relating to such assault and/or battery or physical
5. Damages arising out of failure to provide proper security
or safe premises to any person subject to and assault and/or
battery or physical altercation.
filed the instant declaratory judgment action on September
15, 2015, before any action was filed against Middleton,
seeking a declaration that it has no obligation to indemnify
the defendants for any bodily injury that resulted from the
February 22, 2015 incident. Compl. ¶¶ 18-20.
Canopius filed its initial motion for summary judgment in
this action on February 24, 2016.
March 4, 2016, Greene filed a civil lawsuit against Middleton
in the Court of Common Pleas for Charleston County
(“Greene Action”). Greene’s complaint
alleges that “a dispute occurred amongst  patrons
inside Charley O’s, ” and that “this
dispute escalated into gunfire resulting in four  innocent
patrons, including [Greene], being shot.” Pl.’s
Second Mot. Ex. A, Greene Compl. ¶¶ 4, 5. Greene
further claims his injuries were caused by Middleton’s
negligence in “failing to protect [Greene] from
foreseeable risk of physical harm;  failing to implement
proper measures to deter and prevent crimes on [the]
premises;  failing to staff adequate personnel to ensure
the rights and safety of [Greene]; [and] failing to train
personnel as were on hand in the best security
practices.” Id. ¶ 10. Middleton has
demanded that Canopius provide a defense in the Greene Action
and indemnify him for any damages incurred in connection
therewith. Pl.’s Second Mot. Ex. B.
April 14, 2016, following the filing of the Greene Action,
Canopius filed a second motion for summary judgment,
specifically requesting a declaration that it had no duty to
defend or indemnify any defendant with regard to that action.
On May 2, 2016, the moving defendants filed a joint response
to both motions as well as their own motion for summary
judgment. On May 5, 2016, Canopius filed a response
to the moving defendants’ motion, and on May 16, 2016,
the moving defendants filed a reply. The court held a hearing
on the motions on June 22, 2016.
19, 2016, the Hamilton-Heyward defendants brought three
separate, but identical, actions against Middleton in the
Court of Common Pleas for Charleston County
(“Hamilton-Heyward Actions”). See
Exhibit A, Omar Hamilton Compl. ¶¶ 1-5; Exhibit B,
Jamar Hamilton Compl. ¶¶ 1-5; Exhibit C, Antwonia
Heyward Compl. ¶¶ 1-5. Unlike the Greene Action,
the Hamilton-Heyward Actions do not specifically allege that
the February 22, 2015 incident arose from a dispute. Instead,
the Hamilton-Heyward defendants simply allege that they were
“injured by the discharge of a firearm at
[Middleton’s] premises, ” and that their injuries
were the result of Middleton’s negligence.
E.g., Omar Hamilton Compl. ¶ 3.
motions are now ripe for the court’s review.
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “Rule 56(c) of the Federal Rules of
Civil Procedure requires that the district court enter
judgment against a party who, ‘after adequate time for
discovery . . . fails to make a showing sufficient 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.’” Stone v. Liberty
Mut. Ins. Co., 105 F.3d 188, 190 (4th Cir. 1997)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986)). Any reasonable inferences are to be drawn in favor
of the nonmoving party. See Webster v. U.S. Dep’t
of Agric., 685 F.3d 411, 421 (4th Cir. 2012). However,
to defeat summary judgment, the nonmoving party must identify
an error of law or a genuine issue of disputed material fact.
See Fed.R.Civ.P. 56(a); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986); see also
Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d
514, 522 (4th Cir. 2003).
the court must draw all justifiable inferences in favor of
the nonmoving party, the nonmoving party must rely on more
than conclusory allegations, mere speculation, the building
of one inference upon another, or the mere existence of a
scintilla of evidence. See Anderson, 477 U.S. at
252; Stone, 105 F.3d at 191. Rather, “a party
opposing a properly supported motion for summary judgment . .
. must ‘set forth specific facts showing that there is
a genuine issue for trial.’” Bouchat,
346 F.3d at 522 (quoting Fed.R.Civ.P. 56(e) (amended 2010)).
If the adverse party fails to provide evidence establishing
that the factfinder could reasonably decide in his favor,
then summary judgment shall be entered “regardless of
‘[a]ny proof or evidentiary requirements imposed by the
substantive law.’” Id. (quoting
Anderson, 477 U.S. at 248).
the summary judgment stage the judge’s function is not
himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.” Id. at 249. When the party moving for
summary judgment does not bear the ultimate burden of
persuasion at trial, it may discharge its burden by
demonstrating to the court that there is an absence of
evidence to support the nonmoving party’s case.
Celotex, 477 U.S. at 325. The nonmovant must then
“make a showing sufficient to establish ...