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Great Lakes Insurance Se v. Bank of Eufaula

United States District Court, E.D. Oklahoma

August 5, 2019

GREAT LAKES INSURANCE SE, Plaintiff,
v.
1. BANK OF EUFAULA, an Oklahoma Bank, 2. SNB BANCSHARES, INC., an Oklahoma Corporation, 3. JULIE HUFF, and, 4. TERRY WADE HUFF, Defendants,

          ORDER [1]

          Ronald A. White United States District Judge Eastern District of Oklahoma

         Defendants to this action, Julie Huff and Terry Wade Huff, filed a lawsuit in the District Court of Muskogee County, Oklahoma against the Bank of Eufaula and SNB Bancshares, Inc. (hereinafter collectively referred to as the “Bank”). The Bank is insured under a Policy issued by Great Lakes Insurance SE (hereinafter “Great Lakes”). Great Lakes brought this action seeking a declaratory judgment that it has no duty to defend or indemnify the Bank against the Huffs' claims under the Policy. Now before the court are cross motions for summary judgment filed by Great Lakes [Docket No. 35] and the Bank [Docket No. 37].

         I. STANDARD OF REVIEW

         The court will grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The court's function is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In applying the summary judgment standard, the court views the evidence and draws reasonable inferences therefrom in the light most favorable to the nonmoving party. Burke v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1258 (10th Cir. 2006). At this stage, however, Plaintiff may not rely on mere allegations, but must have set forth, by affidavit or other evidence, specific facts in support of the Complaint. Id.

         “Conclusory allegations that are unsubstantiated do not create an issue of fact and are insufficient to oppose summary judgment.” Harvey Barnett, Inc. v. Shidler, 338 F.3d 1125, 1136 (10th Cir. 2003) (citation omitted).

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). While at the summary judgment stage evidence need not be submitted in a form that would be admissible at trial, the substance of the evidence must be admissible.

         II. UNDISPUTED MATERIAL FACTS

         Underlying Action

         In the state court action, the Huffs allege that on January 21, 2016, while Julie Huff was a business invitee at the Bank, an armed robber entered the Bank. He shot and killed the Bank's president and then shot a teller who resisted his demand for money. He then took Mrs. Huff hostage at gunpoint. The robber ordered Mrs. Huff to drive him in a stolen vehicle and forced her to take him several miles as he sat in the passenger seat with a gun pointed at her.

         Law enforcement chasing the stolen vehicle were informed that Mrs. Huff was a hostage. After law enforcement stopped the vehicle, Mrs. Huff ran, but the robber caught up to her, put his arm around her neck and used her as a human shield. Law enforcement and the robber exchanged fire, during which law enforcement bullets struck Mrs. Huff approximately nine (9) times.

         The Huffs allege that the Bank owed a duty to Mrs. Huff as a business invitee, that it failed to follow industry standards to protect its customers from such a foreseeable situation, and that its failures, negligence, and reckless disregard for her rights caused her injuries. The Huffs seek compensation for, inter alia, Mrs. Huff's bodily injuries and emotional distress.[2]

         After the Huffs filed their state court lawsuit, the Bank demanded that Great Lakes indemnify and defend it against the Huffs' claims. Great Lakes is presently defending the Bank in the state court litigation under a reservation of rights.

         The Policy

          The Policy at issue is an occurrence policy that was in effect from March 6, 2015 to March 6, 2016.[3] The Policy provides in pertinent part:

         COVERAGE A BODYILY INJURY AND ...


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