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Scottsdale Insurance Co. v. Moonshine Saloon LLC

United States District Court, D. South Carolina, Charleston Division

January 6, 2017

SCOTTSDALE INSURANCE COMPANY, Plaintiff,
v.
MOONSHINE SALOON, LLC, and ROY W. INFINGER, JR., as Personal Representative of the Estate of APRIL INFINGER, Defendants.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE

         The instant matters are before the court on plaintiff Scottsdale Insurance Company (“Scottsdale”) and defendant Roy W. Infinger, Jr.'s (“Infinger”) cross motions for summary judgment. For the following reasons the court grants Scottsdale's motion for summary judgment, and denies Infinger's motion for summary judgment.

         I. BACKGROUND

         On the night of December 8, 2013, decedent April Infinger (“decedent”), and her husband, Wayne Infinger (“Wayne”), attended a concert at the Moonshine Saloon (the “Saloon”), a bar and grill operated by defendant Moonshine Saloon, LLC (“Moonshine LLC”). ECF No. 1, Ex. B, Underlying Compl. ¶¶ 6-8. The Saloon was crowded that night and a number of Moonshine LLC's security personnel were present. Id. ¶ 8. At some point, another patron, Shearon Bennett (“Bennett”), became involved in an altercation and was asked to leave. Id. ¶¶ 9, 10. Though the nature of this altercation and Bennett's subsequent actions are the subject of some dispute, it is undisputed that Bennett eventually discharged a firearm in the Saloon's parking lot, and that one round from the firearm penetrated a wall of the Saloon and struck decedent in the back. Id. ¶¶ 11, 12. Decedent later died from the injuries she sustained in the shooting. Id. ¶ 13.

         At the time of the shooting, Moonshine LLC was insured by a commercial general liability policy provided by Scottsdale (the “Policy”). Compl. Ex. A, Policy. Under the Policy, Scottsdale agreed to “pay those sums that [Moonshine LLC] becomes legally obligated to pay as damages because of ‘bodily injury'” where such “‘bodily injury' is caused by an ‘occurrence.'” Id. at 17.[1] The Policy defines an “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” Id. at 31. The Policy provides coverage of up to $1, 000, 000 per occurrence. Id. at 14.

         However, such coverage is subject to an Assault and Battery Sublimit (“A/B Sublimit”), pursuant to which the Policy's $1, 000, 000 per occurrence coverage limit does not extend to “injury” or “bodily injury” arising from:

1. Assault and/or Battery committed by . . . [a]ny insured [or] [a]ny other person; or
2. The failure to suppress or prevent Assault and/or Battery by any person in 1. above; or
3. The selling, serving or furnishing of alcoholic beverages which results in Assault and/or Battery; or
4. The negligent . . . Employment; . . . Supervision; Reporting to proper authorities, or failure to so report; or . . . Retention . . . of a person for whom any insured is or ever was legally responsible and whose conduct would be excluded by paragraphs 1. and 2. above.

Id. at 48. Instead, the A/B Sublimit substitutes a $25, 000 per occurrence coverage limit-and a $50, 000 aggregate limit-for all “damages” that Scottsdale becomes legally obligated to pay “because of ‘injury, ' [or] ‘bodily injury' . . . to any person arising out of Assault and/or Battery.” Id. at 48, 49.

         On January 20, 2015, Infinger filed suit against Moonshine LLC in the Court of Common Pleas for Berkeley County, bringing causes of action for negligence, gross negligence, and recklessness in connection with decedent's death (the “underlying action”). Underlying Compl. ¶¶ 14-22. Pursuant to the Policy, Scottsdale is providing a defense to Moonshine LLC in the underlying suit. Compl. ¶ 13. However, the parties disagree as to the extent of Scottsdale's coverage obligations. Scottsdale contends that the A/B Sublimit applies, and consequently, that Scottsdale's liability for the claims in the underlying action is limited to $25, 000. Id. ¶ 23.

         Scottsdale filed the instant declaratory judgment action on March 11, 2016. Infinger file a motion for summary judgment on April 12, 2016. ECF No. 8. Scottsdale filed a response to Infinger's motion, ECF No. 12, and filed its own motion for summary judgment on April 29, 2016. ECF No. 11. Infinger filed a reply in support of his initial motion on May 9, 2016, ECF No. 14, and filed a response to Scottsdale's motion on May 16, 2016. ECF No. 20. Scottsdale filed a reply in support of its motion on May 26, 2016. ECF No. 21. Both motions are now ripe for the court's review.

         II. ...


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