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USAA Casualty Insurance Co. v. Carr

Superior Court of Delaware, Kent

June 12, 2019

USAA CASUALTY INSURANCE COMPANY, Plaintiff,
v.
TRINITY CARR, Defendant.

          Submitted: April 5, 2019

          Jeffrey A. Young, Esquire, Young & McNelis, Attorney for Plaintiff.

          Benjamin C. Wetzel, III, Esquire (argued) and Natalie M. Ippolito, Esquire, Wetzel & Associates, P.A., Attorneys for Defendant.

          MEMORANDUM OPINION AND ORDER

          NOEL EASON PRIMOS JUDGE

         On April 21, 2016, Amy Joyner Francis (hereinafter "Ms. Francis"), a student at Howard High School of Technology in Wilmington, Delaware, died tragically following an incident in a restroom at the school. Subsequently, family members of Ms. Francis sued multiple defendants, including Trinity Carr (hereinafter "Ms. Carr"), in two separate lawsuits. Ms. Carr is also the Defendant in the current action, in which Plaintiff USAA Casualty Insurance Company (hereinafter "USAA") seeks a declaratory judgment that it is not required to defend or indemnify Ms. Carr in those lawsuits. The parties have filed cross motions for summary judgment, which have been submitted to the Court for decision. For the reasons stated herein, USAA's motion will be DENIED, and Ms. Carr's motion will be GRANTED.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The record before the Court for purposes of summary judgment consists of the allegations of the two complaints filed against Ms. Carr, [1] together with the provisions of the insurance policy at issue, and a copy of certain cell phone video recordings submitted by USAA depicting both an apparent interaction between Ms. Carr and Ms. Francis the day before the alleged attack, and the alleged attack itself. While the parties to this action may disagree about the truth of the facts set forth in the underlying complaints, and while they certainly disagree about the import of the policy's provisions, there is no dispute about what the complaints and the policy say. Therefore, the Court will summarize the relevant portions of those documents.

         The two complaints filed against Ms. Carr contain virtually identical language. They allege that Ms. Carr, while a student at Howard High, and another student, Zion Snow (hereinafter "Ms. Snow"), assaulted Ms. Francis in a restroom at the school on April 21, 2016.[2] According to the complaints, Ms. Carr and Ms. Snow "hatched a plot to seek retribution against [Ms. Francis] through the use of verbal and physical threats and intimidation and, ultimately, brutal physical force and violence" and "conspired with each other to intentionally intimidate, threaten and physically attack" Ms. Francis. The complaints allege that, following the attack, Ms. Francis was left gasping for air on the restroom floor and died shortly afterwards of "sudden cardiac arrest caused by the physical and emotional distress of the attack." According to both complaints, "[b]ut for" Ms. Carr's and the other defendants' wrongful conduct, Ms. Francis "would not have died on April 21, 2016."

         Following service of process in the two lawsuits, Ms. Carr sought coverage from USAA under her mother's homeowner's insurance policy. By its terms, that policy covers an insured[3] for claims made for '"bodily injury' or 'property damage' caused by an 'occurrence'. . . ." The policy defines "occurrence" as an "accident, including continuous and repeated exposure to. . . harmful conditions" that results in "bodily injury" or "property damage." "Bodily injury" is defined as "physical injury, sickness, or disease, including required care, loss of services and death that results." Finally, the policy contains an exclusion providing that coverage under the policy

do[es] not apply to "bodily injury" or "property damage":
a. Which is reasonably expected or intended by any "insured" even if the resulting "bodily injury" or "property damage":
(1) Is of a different kind, quality or degree than initially expected or intended ....

         After completion of discovery in this declaratory judgment action, USAA moved for summary judgment. Ms. Carr filed a written response in opposition to the motion but did not file a cross motion for summary judgment. At oral argument, however, counsel for Ms. Carr agreed with counsel for USAA that there is no genuine issue of material fact and that this matter is ripe for decision as a matter of law. At that time, the Court permitted counsel for Ms. Carr to advance an oral cross motion for summary judgment.

         II. STANDARD OF REVIEW

         Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."[4] Where, as here, the parties have filed cross motions for summary judgment and have not argued that there is any issue of material fact, the Court "shall deem the motions to be the equivalent of a stipulation for decision on the merits based on the record submitted with the motions."[5] In such a procedural setting, the parties are conceding the absence of any material factual issues and, at the same time, are acknowledging that the factual record before the Court is sufficient to support their respective motions.[6]

         If the language of an insurance policy is clear and unambiguous, "a Delaware court will not destroy or twist the words under the guise of construing them."[7]However, where there is ambiguity in the policy language, or confusion in the deliberate selection of language, the court must engage in construction of the language, and the policy language is always construed most strongly against the insurer.[8] In addition, an insurance contract should be read in accordance with the "reasonable expectations" of the insured as far as the language permits.[9]

         In considering whether an insurer has a duty to defend its insured, the court must consider the following factors:

(a) where there exists some doubt as to whether the complaint against the insured alleges a risk insured against, that doubt should be resolved in favor of the insured;
(b) any ambiguity in the pleadings should be resolved against the carrier;
(c) if even one count or theory of plaintiff s complaint lies within the coverage of the policy, the duty to defend arises.[10]

         The insured bears the burden of proving that a claim is covered by the policy.[11] Once the insured does so, the insurer has the burden of proving that an exclusion bars coverage.[12]

         III. DISCUSSION

         In determining whether USAA is obligated to defend and indemnify Ms. Carr, the Court must answer two questions: (1) whether the underlying incident qualifies as an "occurrence" under the policy, and (2) whether the policy's "intentional tort" exclusion operates to bar coverage in this case.

         A. Ms. Carr Has Carried Her Burden of Showing That the Underlying Incident is Covered Under the Policy as an "Occurrence."

         As previously noted, Ms. Carr, as the insured, bears the burden of proving that the conduct at issue is covered by the policy, while USAA bears the burden of proving that any exclusions apply. In determining whether the alleged assault is covered as an "occurrence," this Court looks to its earlier decision in Comae v. Hall.[13] Under the facts of Camac, the insured, Hall, had entered a restroom, encountered Camac, and intentionally struck him, causing injury to him. In Camac, as here, coverage was provided for bodily injury or property damage caused by an "occurrence," and "occurrence" was defined as bodily injury or property damage resulting either from an "accident" or from continuous and repeated exposure to a condition. Moreover, in Camac, as here, the term "accident" was not defined by the policy.

         The Camac Court noted that the Court's earlier decision in Hackendorn, supra, had defined "accident" as "an event not anticipated or foreseen by the victim, or an outcome not intended by the insured."[14] The Camac Court concluded that the assault qualified as an "accident" because Hall had struck Camac while Camac was using the restroom, and it was "not usual or expected to be struck at such a time."[15]

          The Hackendorn Court similarly found that the incident at issue in that case qualified as an "accident," and therefore that the insured had met his burden of demonstrating coverage.[16] In reaching this conclusion, the Hackendorn Court examined decisions from other jurisdictions regarding the definition of "accident" and summarized those decisions as follows: whether an event is considered an accident is determined by "(1) taking the point of view of the injured person and/or (2) looking at the insured's conduct."[17] Applying these principles to the facts before it, the Hackendorn Court concluded that as to the victim, Dillman, the shooting was clearly an accident, but as to the insured, Hackendorn, whether the incident was an accident was much more complicated, given the concepts of intention and expectation discussed in the decisional law examined by the court.[18] The Hackendorn Court therefore found applications of the various definitions of accident to the questions of coverage in the case before it to be ambiguous, and because ambiguity is to be construed against the insurer, whether the incident was to be considered an accident was to be viewed from the perspective of the victim, Dillman.[19]

         There is similar ambiguity in this case with regard to whether the incident in the restroom at Howard High qualifies as an accident. It is clear from the record before this Court that, from the perspective of Ms. Francis, the attack in the restroom at Howard High was an accident-that it was a "happening by chance, unusual, fortuitous and not anticipated."[20] Although the complaints in the underlying lawsuits allege that Ms. Carr and Ms. Snow had "confronted and threatened" Ms. Francis the day before the attack, there is no indication in the complaints that Ms. Francis entered the restroom on April 21 expecting to be physically assaulted.[21] The perspective of Ms. Carr, on the other hand, like that of Mr. Hackendorn, is more complicated. While there can be no dispute that Ms. Carr intended to harm Ms. Francis, there is no indication, as will be more fully discussed later in this opinion, that Ms. Carr either intended to cause Ms. Francis's death or expected that her death would result from her (Ms. Carr's) actions. Therefore, the ambiguity must be construed against USAA, and the incident must be viewed from Ms. Francis's perspective-i.e., as an accident.

         Clearly one aspect of the ambiguity present in both Camac and Hackendorn-and also present here-is that none of the insurance policies involved clarify whether the term "accident" is to be analyzed from the perspective of the victim or that of the insured. In both Camac and Hackendorn, the Court concluded that the ambiguity present should be resolved against the insurer by viewing the event from the perspective of the victim. The Court must reach a similar conclusion here, and must determine that Ms. Carr has carried her burden of showing that the incident in question constitutes an "occurrence" under the policy.

         In arguing that the alleged attack does not qualify as an "occurrence," USAA points to the decision in TIG Insurance Company v. Premier Parks, Inc., [22] where this Court stated that "[b]y their very nature, intentional torts are not 'accidents'" for purposes of a policy definition of "occurrence."[23] The TIG Court, however, was applying Oklahoma law, not ...


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