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Founders Insurance Co. v. Hamilton

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

January 24, 2017

Founders Insurance Company, Plaintiff,
v.
John Hamilton a/k/a Jim Hamilton, Individually and d/b/a Aces High Club, Aces High Club and Kenneth Weatherford, Defendants.

          ORDER AND OPINION

         Plaintiff Founders Insurance Company (“Plaintiff”), filed this declaratory judgment action against Defendants John Hamilton a/k/a Jim Hamilton, individually and d/b/a Aces High Club (“Hamilton”), and Aces High Club (“AHC”) (collectively “Defendants”) seeking a declaration by the court that a Liquor Liability Policy issued by Plaintiff and bearing policy number LLSC00270 (“Policy”) does not provide coverage to Defendants, create an obligation to defend Defendants or create an obligation to indemnify Defendants with regard to the lawsuit styled Kenneth Weatherford v. John Hamilton, Aces High Club, John Calvin Sikes, Fish Tales a/k/a JS Fish Tales, pending in the Court of Common Pleas for Orangeburg County and bearing Case No. 2014-CP-38-00433 (the “Underlying Lawsuit”). (ECF No. 1 at 1-2.)

         This matter is before the court on Plaintiff's Motion to Reconsider pursuant to Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure. (ECF No. 55.) Specifically, Plaintiff seeks reconsideration of the Text Order entered on September 20, 2016 (the “September Text Order”), in which the court denied Plaintiff's Motion for Summary Judgment (ECF No. 36) without prejudice. (ECF No. 54.) Defendants oppose Plaintiff's Motion to Reconsider asserting that it should be denied. (ECF Nos. 56 at 1 & 57 at 1.)

         For the reasons set forth below, the court DENIES Plaintiff's Motion to Reconsider.

         I. JURISDICTION

         The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a) based on Plaintiff's allegations that the action is between citizens of different states and the amount in controversy is in excess of $75, 000.00, exclusive of costs and interest. (ECF No. 1 at 2 ¶ 5-3 ¶ 11.)

         II. RELEVANT BACKGROUND TO PENDING MOTION

         Defendants are involved in the Underlying Lawsuit that alleges their negligence on or about January 22, 2012, in serving Oscar Melvin (“Melvin”) excessive amounts of alcohol was the cause of an assault perpetrated by Melvin against Kenneth Weatherford (“Weatherford”) at a different bar than AHC, which resulted in physical injury to Weatherford. (ECF No. 1 at 4 at ¶¶ 16-17.) Defendants claim they are insured and entitled to coverage under the Policy, and are entitled to have Plaintiff defend and indemnify them in regard to the Underlying Suit. (Id. at 4 ¶ 19-5 ¶ 20.)

         Plaintiff issued the Policy to Hamilton with effective dates of June 3, 2011, through June 3, 2012. (Id. at 5 ¶ 22.) Plaintiff claims that coverage and any other benefits from the Policy are not available to Defendants in the Underlying Lawsuit under the Policy's clear and unambiguous terms, including Exclusion (k) “Assault and/or Battery.” (Id. at 7 ¶ 29-8 ¶ 31.) Exclusion (k) provides that the Policy does not apply to injuries arising from:

(1) [A]ssault and/or battery committed by any “insured”, any “employee” of an “insured”, or any other person; (2) The failure to suppress or prevent assault and/or battery by any person in subparagraph k. (1) above; (3) The selling, serving or famishing of alcoholic beverages which results in an assault and/or battery; or (4) The negligent: (a) Employment; (b) Investigation; (c) Supervision; (d) Reporting to the proper authorities, or failure to so repost; or (e) Retention of or by a person for whom any “insured” is or ever was legally responsible and whose conduct would be excluded by subparagraphs k. (1) through k. (3) above.

(ECF No. 1-1 at 2.)

         On January 28, 2015, Plaintiff filed the instant declaratory judgment action in this court. (ECF No. 1.) On October 14, 2015, Plaintiff filed a Motion for Summary Judgment. (ECF No. 36.) Neither Defendants nor Weatherford filed opposition to Plaintiff's Motion for Summary Judgment. However, because the copy of the Policy that was attached to the Complaint did not contain a declarations page, the court asked Plaintiff to file a complete copy of the Policy. On September 19, 2016, Plaintiff filed a copy of the Policy that did not contain the declarations page. (ECF No. 53.) After the court entered the September Text Order, Plaintiff moved for reconsideration on September 28, 2016. (ECF No. 55.)

         III. LEGAL STANDARD AND ANALYSIS

         In the September Text Order, the court made the following observations in denying Plaintiff's Motion for Summary Judgment:

In its Rule 56 Motion, Plaintiff asserts it is entitled to summary judgment because the Liquor Liability Policy issued by Plaintiff and bearing policy number LLSC00270 (the “Policy”) does not provide coverage to Defendants, create an obligation to defend Defendants or create an obligation to indemnify Defendants with regard to an underlying lawsuit. Upon review, the court observes that even though Plaintiff submitted the “coverage part” of the Policy in support of the Rule 56 Motion (see ECF Nos. 1-1 & 53), it did not provide a declarations page specifying the named insured(s), address, policy period, location of premises, and policy limits. Without the Policy's declarations page, the court is unable to either ascertain the applicability of ...

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