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State Farm Fire and Casualty Co. v. DeLand

United States District Court, E.D. Michigan, Northern Division

June 20, 2019

STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff,
v.
ROBERT DELAND, HOWARD LINDEN, as Next Friend of John Doe, a minor JOHN DOE, a minor, JOHN DOE 3 Defendants.

          ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

          THOMAS L. LUDINGTON United States District Judge

         On October 1, 2018, Plaintiff State Farm Fire and Casualty Company (“State Farm”) filed a declaratory action against Defendants Robert DeLand, John Doe, and Howard Linden (as next friend of John Doe). ECF No. 1. On December 4, 2018, Plaintiff filed an amended complaint, adding John Doe 3 as a defendant. ECF No. 11. Plaintiff is currently defending DeLand in two state tort actions brought against DeLand by John Doe and John Doe 3 under a reservation of rights. DeLand was also the defendant in a criminal case arising from the same underlying facts as the two state tort actions.

         Plaintiff seeks a declaratory action that it is not required to indemnify or defend DeLand in his civil suits involving John Doe and John Doe 3 (“Doe Defendants”) pursuant to the Condominium Unitowners Policy (“Policy”) that it issued to DeLand. Id. The action presents six counts: 1) that the injuries alleged by Doe Defendants are not “occurrences” as defined in the Policy; 2) neither Doe Defendants have alleged that DeLand's actions caused property damage; 3) the alleged injuries were expected or intended by DeLand or were the result of willful and malicious actions; 4) the alleged conduct is excluded by the Policy's business pursuits exclusion; 5) Doe Defendants' allegations should be construed as one occurrence under the Policy; and 6) the insurance provided by Plaintiff is in excess to all other available insurance for Doe Defendants. Id. On April 19, 2019, Plaintiff filed a motion for summary judgment. ECF No. 24.

         I.

         A.

         The Policy provides in relevant part to the immediate motion:

SECTION II- LIABILITY COVERAGES

         COVERAGE L - PERSONAL LIABILITY

         If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage to which this coverage applies, caused by an occurrence, we will:

         1. pay up to our limit of liability for the damages for which the insured is legally liable; and

         2. provide a defense at our expense by counsel of our choice. We may make any investigation and settle any claim or suit that we decide is appropriate. Our obligation to defend any claim or suit ends when the amount we pay for damages, to effect settlement or satisfy a judgment resulting from the occurrence, equals our limit of liability.

         COVERAGE M - MEDICAL PAYMENTS TO OTHERS

         We will pay the necessary medical expenses incurred or medically ascertained within three years from the date of an accident causing bodily injury. Medical expenses means reasonable charges for medical, surgical, x-ray, dental, ambulance, hospital. Professional nursing, prosthetic devices and funeral services. This coverage applies only:

         1. to a person on the insured location with the permission of an insured . . .

         2. to a person off the insured location, if the bodily injury:

a. arises out of a condition on the insured location or the ways immediately adjoining;
b. is caused by the activities of an insured . . .

         Condominium Unitowners Policy at 15, ECF No. 11-1.

         In Count I, Plaintiff contends that it has “no duty to defend or indemnify Rev. Deland under the Policy, as his claimed conduct does not constitute an occurrence under the policy.” ECF No. 11 at 6. The Policy defines “occurrence” as:

“occurrence, ” when used in Section II of this policy, means an accident, including exposure to conditions, which results in:
a. bodily injury; or
b. property damage;
during the policy period. All bodily injury and property damage resulting from one accident, series of related accidents or from continuous and repeated exposure to the same general conditions is considered to be one occurrence.

         ECF No. 11-1 at PageID.151-152.

         In Count II, Plaintiff contends that it has no duty to indemnify DeLand under the Policy because the John Does have not alleged that DeLand's conduct “physically damaged or destroyed [their] tangible property, or caused him to lose the use of any tangible property.” ECF No. 11 at 8-9. The Policy states that “‘property damage' means physical damages to or destruction of tangible property, including loss of use of this property. Theft or conversion of property by any insured is not property damage.” Id.

         In Count III, Plaintiff contends that “any bodily injuries or property damages that John Doe or John Doe 3 sustained are barred by the policy's intended or expected acts exclusions.” The Policy provides:

         SECTION II - EXCLUSIONS

         1. Coverage L and Coverage M do not apply to:

         a. bodily injury or property damage:

(1) which is either expected or intended by the insured; or
(2) which is the result of willful and malicious acts of the insured.

Id. at 10.

         In Count IV, Plaintiff contends that “any bodily injuries or property damages that John Doe or John Doe 3 sustained are barred by the policy's business pursuits exclusions.” The Policy defines “business” as “a trade, profession or occupation. This includes farming.” Id. The Policy also lists the following exclusions:

         SECTION II - EXCLUSIONS

         1. Coverage L and Coverage ...


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