ORDER
On this dаy came on to be considered Plaintiff American Western Home Insurance Company’s Motion for Summary Judgment. (D.E. 16.) For the reasons stated herein, Plaintiffs Motion for Summary Judgment is GRANTED.
I. Jurisdiction
This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1332(a)(1), as Plaintiff is an Oklahoma corporation with its principal place of business in Ohio, and Defendants are Texas citizens. The amount in controversy exceeds $75,000. (D.E. 1 at 1-2.) 1
II. Factual and Procedural Background
Plaintiff filed this action in this Court on May 5, 2010, invoking this Court’s diversity jurisdiction. (D.E. 1.) The following factual background is derived from Plaintiffs Complaint.
Plaintiff is an insurer that provides surplus lines insurance under Chapter 981 of the Texas Insurance Code. Defendant Lynn Israel purchased a Commercial General Liability policy of insurance No. ZM0743691F from Plaintiff with effective coverage dates from May 9, 2007 to May 9, 2008 (the “Insurance Policy”). No other Defendants are named insured parties under the policy. (D.E. 1 at 2-3.)
This action is related to
Michael Allen Mitchell v. Paradise Apаrtments, Jenney Lynn Israel aka Jenny Lynn Heno and Virginia Heno,
Cause No. 10-60083-4, a lawsuit pending in County Court at Law No. 4, in Nueces County, Texas (the “Underlying Case”). The Original Petition in that case states that on February 4, 2008, Michael Allen Mitchell was sleeping in his
Plaintiff American Western has defended Lynn Israel, Jenney Lynn Israel (aka Jenny Lynn Heno), Virginia Heno, and Pаradise Apartments in the Underlying Case pursuant to a reservation of rights letter. (D.E. 1 at 3.) The present action was brought to determine the rights of the parties under the Insurance Policy. Plaintiff contends that the “assault and battery” exclusion to the Insurance Policy precludes coverage in this case. The Insurance Policy’s “assault and battery” exclusion provides:
This insurance does not apply to:
a. “Bodily injury,” “property damage,” or “personal injury:”
(1)Expected or intended from the standpoint of the insured; or
(2)Arising out of assault or battery, or out of any act or omission in connection with the prevention or suppression of an assault or battery.
(D.E. 16-1 at 7, 9) (emphasis added).
In its Motion for Summary Judgment, filed September 1, 2010, Plaintiff seeks a declaratory judgment that: (1) it has no duty to defend Lynn Israel, Jenney Lynn Israel (aka Jenny Lynn Heno), Virginia Heno, and Paradise Apartments in the Underlying Case due to the assault and battery exclusion of the Insurance Policy, and (2) it has no duty to indemnify, duе to its lack of a duty to defend. (D.E. 16 at 2, 12.) Defendant filed a Response on September 23, 2010, and Plaintiff filed a Reply on September 27, 2010. The Court held oral arguments in this action on October 1, 2010.
III. Discussion
A. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate if the “pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The substantive law identifies which facts are material.
See Anderson v. Liberty Lobby, Inc.,
On summary judgment, “[t]he moving party has the burden of proving there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law.”
Rivera v. Houston Indep. Sch. Dist.,
Summary judgment is not appropriate unless, viewing the evidence in the light most favorable to the non-moving party, no reasonable jury could return a verdict for that party.
Rubinstein v. Adm’rs of the Tulane Educ. Fund,
B. Declaratory Judgment Act, 28 U.S.C. § 2201
Title 28 U.S.C. § 2201(a), the Declaratory Judgment Act, provides, “[i]n a case of actual controversy within its jurisdiction, ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.”
The Declaratory Judgment Act does not confer federal jurisdiction; rather, the parties must provide an independent basis for jurisdiction.
Comstock Oil & Gas Inc. v. Ala. & Coushatta Indian Tribes of Tex.,
C. Duty to Defend and Duty to Indemnify under Texas Law
As the Texas Supreme Court has explained, “[i]n liability insurance policies generally, an insurer assumes both the duty to indemnify the insured, that is, to pay all covered claims and judgments against an insured, and the duty to defend
Because the duty to defend and the duty to indemnify are related but separate concepts, the Court addresses each separately-
1. Duty to Defend
a. Background
To determine whether the insurer owed a duty to defend, a court must apply the “eight corners rule.” Under this rule, “[a]n insurer’s duty to defend is determined solely by the allegations in the pleadings and the language of the insurance policy.”
King v. Dallas Fire Ins. Co.,
When the insurer refuses to defend based on a policy exclusion, the insurer bears the burden of showing that the complaint’s allegations trigger the exclusion.
See Harken Exploration Co. v. Sphere Drake Ins. PLC,
b. Application
Michael Mitchell, plaintiff in the Underlying Case, brings the following causes of action arising from the assault and battery in his apartment by intruders: (1) negligence (related to maintenance of the property); (2) deceptive trade practices; (3) breach of implied warranty; and (4) gross negligence. (D.E. 16-2 at 4-6.)
Plaintiff argues that the “assault and battery” exclusion in the Insurance Policy is applicable, and thus it has neither the duty to defend nor the duty to indemnify in the Underlying Case. Plaintiff contends that the exclusion applies even though the Underlying Case states other causes of action, as it is based upon an underlying assault and battery. (D.E. 16 at 7-11.) Defendants respond that the exclusion does not apply because the Underlying Case involves premises liability rather than assault and battery. (D.E. 20.)
As noted above, the “assault and battery” exclusion in this case applies to any action “arising out of’ an “assault or
Consistent with this interpretation, courts to have confronted situations similar to the one at bar have regularly concluded that an assault and battery exclusion precludes coverage regardless of the cause of action stated in an underlying lawsuit when the injuries complained of resulted from an assault and battery. In
Tarrant County Ice Sports, Inc. et al. v. Equitable Gen. Life Ins. Co. of Oklahoma,
In
Canutillo Independent School District v. National Union Fire Insurance Co.,
Texas courts ... when determining whether an exclusion in an insurance contract applies, examine the factual allegations showing the origin of the damages rather than the legal theories asserted by the plaintiff. Where the legal claims asserted by the plaintiffs are not independent and mutually exclusive, but rather related to and dependent upon excluded conduct, the claims are not covered, even if asserted agаinst an insured who did not himself engage in the prohibited conduct.
We find that Texas law is clear: where a claim against an insured would not exist “but for” conduct explicitly excluded by the policy, the dependent claims are also not covered under the policy, regardless of whether the insured against whom the derivative claims are directed actually engaged in the excluded acts.
Id. at 703-05 (emphasis added). Thus, in Canutillo, the court found no duty to defend or indemnify due to an assault аnd battery exclusion, where the underlying cases alleged negligence against a school district after a teacher was found to have committed sexual assault. The court concluded that the negligence claims were based upon the underlying assault.
Courts in this district to have considered cases very similar to the one at bar have likewise concluded that insurance companies have no duty to defend or indemnify in an underlying lawsuit allеging negligence following an assault or battery occurring on the insured’s property. For example, in
Acceptance Ins. Co. v. Walkingstick,
Similarly, in
Century Surety Co. v. Castle,
As a final example, in
Century Surety Co. v. Glen Willows, Inc.,
Numerous other cases have likewise concluded that an “assault and battery” insurance policy exclusion precludes coverage for lawsuits arising out of an underlying assault and battery, even when other theories of recovery are alleged.
See, e.g., Nautilus Ins. Co. v. Texas State Sec. and Patrol,
As applied here, Mitchell’s claims in the Underlying Case arose from the February 4, 2008 assault and battery in his apartment. Although Mitchell has brought claims for negligence, gross negligence, breach of warranty, and deceptive trade practices, rather than assault and battery claims, the “assault and battery” exclusion applies. As Mitchell’s claim against Defendants “would not exist ‘but for’ conduct explicitly excluded by the policy, [Mitchell’s] dependent claims are also not covered under the policy.”
Canutillo Indep. Sch. Dist.,
In Texas, “the duty to indemnify is decided only after the underlying liability case is concluded. However, where an exclusion that рrecludes the duty to defend would also preclude indemnity, courts are permitted to decide the duty to indemnify in advance of the underlying liability lawsuit’s end.”
Nautilus Ins. Co. v. Country Oaks Apartments Ltd,.,
Defendant urges this Court to apply this rule here, as the assault and battery exclusion applies, and there is no coverage for that event under the Policy. (D.E. 16 at 5, 11-12.) The Court agrees. Courts have regularly held that where there is no duty to defend on the basis of an assault and battery exclusion in an insurance policy, there is also no duty to indemnify.
See, e.g., Glen Willows,
IV. Conclusion
For the reasons stated above, the Court GRANTS Plaintiffs Motion for Summary Judgment. (D.E. 16.)
The Court declares, pursuant to 28 U.S.C. § 2201, that Plaintiff American Western Home Insurance Company has no duty to defend or duty to indemnify Defendants Lynn Israel, Jenney Lynn Israel AKA Jenny Lynn Heno, Virginia Heno, or the Paradise Apartments, pursuant to Plaintiffs Commercial General Liability policy of insurance No. ZM0743691F, in an action in County Court at Law No. 4, Michael Allen Mitchell v. Paradise Apartments, Jenney Lynn Israel AKA Jenny Lynn Heno and Virginia Heno, Cause No. 10-60083-4. This Order is binding upon Defendant Michael Allen Mitchell.
Notes
. In their answer, Defendants contend that this Court lacks jurisdiction, as the amount in controversy does not exceed $75,000, and because the exercise of jurisdiction violates the Equal Protection Clause. (D.E. 12 at 1.) Defendants have not, however, filed a motion to dismiss for lack of subject matter jurisdiction. Defendant’s Equal Protection argument is without merit, as Article III, Section 2 оf the Constitution authorizes diversity jurisdiction.
Coury v. Prot,
. Mitchell claims that Defendants were negligent because they (a) violated Texas Property Code Section 92 by failing to provide a key-less bolting device and door viewer on the exterior apartment door; (b) failed to provide reasonable and adequate security; (c) failed to investigate and monitor criminal activity surrounding the property; (d) failed to develop, institute, and enforce security procedures; (e) failed to inspect propеrty for safety and/or security hazards; (0 failed to develop, institute, and enforce reasonable policies, practices, procedures, and guidelines for maintaining the property in a reasonably safe manner; (g) failed to properly and safely maintain the premises and apartments, including security devices in the apartment; and (h) failed to employ proper security measures on the property. (D.E. 16-2 at 4.)
. Mitchell alleges violations of Bus. & Comm. Code § 17.46(b)(5), (7), (12). (D.E. 16-2 at 4-5.)
. Defendant argues that application of the eight corners rule is incorrect in this case because the phrase “arising out of' is not defined in the Insurance Policy. (D.E. 20 at 2.) The Texas Supreme Court has explained, however, that insurance policies are construed "according to the same rules of construction that apply to contracts generally.... Policy terms are given their ordinary and commonly understood meaning unless the poliсy itself shows that parties intended a different, technical meaning.’’
Don’s Bldg. Supply, Inc. v. OneBeacon Ins. Co.,
. The insurance policy in
Walkingstick
contained an assault and battery exclusion very similar to the one in the case at bar, precluding coverage for "Bodily Injury, including death, and/or Property Damage arising out of assault and/or battery or out of any act or omission in connection with the prevention or suppression of such acts whether caused by or at the instigation or direction of the insured, his emplоyees, patrons or any other person.”
. Defendants’ contention that the assault and battery exclusion does not apply because the underlying case is a premises liability case is contrary to established case law. Defendants cite only
Western Investments, Inc. v. Urena,