United States District Court, W.D. Oklahoma
L. RUSSELL UNITED STATES DISTRICT JUDGE
filed this declaratory judgment action seeking a
determination regarding the extent of its obligation to
defend and indemnify Defendant Boot Scooters LLC and
Defendants Carl Vick and Winston Tedrick, bouncers who worked
at Scooters, the bar operated by Boot Scooters, in claims
pressed by Charles McLaughlin. Before the Court is the Motion
for Summary Judgment (Doc.No. 21) filed by Plaintiff Mesa
Underwriters Specialty Insurance (“MESA”).
Defendants Boot Scooters, Vick, and Tedrick filed a response
as did the state-court plaintiff, Charles McLaughlin. (Doc.
Nos. 23 and 26). The Court conducted a hearing on the motion
on September 26, 2019. Upon consideration of the parties'
submissions and arguments, the Court finds as follows.
judgment is proper where the pleadings, depositions, answers
to interrogatories, and admissions on file, together with
affidavits, if any, show there is no genuine issue as to any
material fact, and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(c). The presence of a
genuine issue of material fact defeats the motion. An issue
is “genuine” if the evidence is significantly
probative or more than merely colorable such that a jury
could reasonably return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A fact is “material” if proof thereof
might affect the outcome of the lawsuit as assessed from the
controlling substantive law. Id. at 249.
McLaughlin filed suit in the District Court of Jackson
County, Oklahoma, against Boot Scooters, Vick, and Tedrick
alleging he was injured as a result of actions taken by the
individuals in removing him from the bar on August 6, 2017.
Mr. McLaughlin and his girlfriend were customers early that
morning when they started arguing, which brought them to the
attention of patrons and the bouncer Vick. McLaughlin was
poking his girlfriend's chest and forehead as they
appeared to be arguing. When Defendant Tedrick approached
McLaughlin's girlfriend she was crying and indicated he
had some of her belongings, including her wallet and phone
and would not return them. Tedrick approached McLaughlin and asked
for the items, McLaughlin responded that he was leaving and
took a swing at Tedrick. When Tedrick leaned back out of the
way, Vick grabbed McLaughlin from behind, grabbing underneath
his arms. His arms disabled by Vick, Charles McLaughlin
started kicking at Mr. Tedrick, who in response grabbed
Charles McLaughlin's legs. The men proceeded to carry
McLaughlin across the bar. When Vick used his body to open
the door to exit, McLaughlin kicked Tedrick “in the
side again and did the alligator roll, and that's when he
came out and landed on the ground.” (Doc. No. 21- 2, p.
He suffered a subdural hematoma and bleeding in the brain.
Mr. McLaughlin testified about his limited memories from the
night in question, specifically he has no recollection of his
interactions with Boot Scooters employees.
initial state-court petition, McLaughlin alleged that Vick
and Tedrick wrongfully detained or falsely imprisoned him
when they picked him up and carried him outside the bar. He
further alleged that Defendants Vick and Tedrick acted
maliciously and with reckless disregard for his rights when
they threw him down on the sidewalk. McLaughlin subsequently
amended his state-court petition, substantially modifying his
allegations. Rather than alleging any intentional torts by
Defendants Vick and Tedrick, he alleged both men acted
negligently while performing their duties as bouncers,
omitting any intentional torts. At the time of
McLaughlin's injuries, Boot Scooters was covered by a
commercial insurance policy issued by MESA; Plaintiff is
defending Boot Scooters and its employees under a reservation
of rights. MESA now seeks a declaration that its obligation
is limited to $25, 000 to Boot Scooters, inclusive of defense
costs, and that it does not owe either employee a defense or
indemnification for any judgment that might ensue.
parties do not address what law applies in this diversity
action, and the Court finds no basis in the record for
concluding that any law other than Oklahoma law is relevant.
See, e.g., Universal Underwriters, Ins. Co. v.
Winton, 818 F.3d 1103, 1105-06 (10th Cir. 2016). An
insurance policy is a contract to which general principles of
contractual interpretation apply. Under Oklahoma law,
“[w]hen policy provisions are clear, consistent, and
unambiguous, [the court must] look to the plain and ordinary
meaning of the policy language to determine and give effect
to the parties' intent.” Porter v. Okla. Farm
Bureau Mut. Ins. Co., 330 P.3d 511, 515 (Okla. 2014).
“[N]either forced nor strained construction will be
indulged, nor will any provision be taken out of context and
narrowly focused upon to create and then construe an
ambiguity so as to import a favorable consideration to either
party than that expressed in the contract.” Dodson
v. St. Paul Ins. Co., 812 P.2d 372, 376 (Okla.
1991)(footnote omitted). Generally, the insured has the
burden of showing the occurrence of a covered loss and the
insurer has the burden of showing that a loss falls within an
exclusionary clause of the policy. See Pitman v. Blue
Cross & Blue Shield of Okla., 217 F.3d 1291, 1298
(10th Cir. 2000) (Once coverage is established, “the
insurer has the burden of showing that a loss falls within an
exclusionary clause of the policy.”); An exclusion is a
policy term eliminating coverage where it otherwise would
have existed under the general declaration. Dodson,
812 P.2d at 377.
parties do not argue that the general provisions of the
Policy are inapplicable, Plaintiff contends, however, that
the general provisions are modified by an Assault and Battery
exclusion as well as an Endorsement providing for Limited
Assault and Battery Coverage. Plaintiff argues that as a
result of the Exclusion and Endorsement, that coverage under
the Policy for the August 6, 2017 incident is limited to $25,
000 rather than the $1, 000, 000 of coverage otherwise
available under the Policy without consideration of these two
seeks relief from continuing to defend Boot Scooters and its
employees. Under Oklahoma law, “[a] liability insurance
policy generally contains two basic duties - the duty to
defend and the duty to indemnify[.]” First Bank of
Turley v. Fid. & Deposit Ins. Co. of Md., 928 P.2d
298, 302-303 (Okla. 1996). The duty to defend is broader than
the duty to indemnify and is not limited by
“determinable contingencies” or the
“outcome of the third-party action.” Id.
at 303-04. Rather, under Oklahoma law, “[a]n insurer
has a duty to defend an insured whenever it ascertains the
presence of facts that give rise to the potential of
liability under the policy.” Id. at 303
(emphasis in original) (internal footnote omitted). An
insurer's duty to defend is determined on the basis of
the allegations of the petition (and other pleadings), as
well as information obtained from the insured and other
sources reasonably available to the insurer. Id.
Thus, under Oklahoma law, “[t]he duty to defend cannot
be limited by the precise language of the pleadings. The
insurer has the duty to look behind the third party's
allegations to analyze whether coverage is
possible.” Id. at 303 n.15 (emphasis in
original). See also Utica Mut. Ins. Co. v. Voyles,
277 Fed.Appx. 809, 812 (10th Cir. 2008) (“Oklahoma does
not recognize the four-corners rule followed by some courts.
A court must look beyond the language of the complaint to
determine whether a duty to defend exists.”).
considering the specifics of the Exclusion and Endorsement,
the Court may quickly dispense with Plaintiff's first
contention. Plaintiff MESA contends that the language of
Charles McLaughlin's initial petition filed in the
District Court of Jackson County dictates the outcome herein;
specifically arguing that the allegations of intentional
conduct place this case squarely within the Limited Assault
or Battery Coverage Endorsement. Plaintiff argues that the
Endorsement limits coverage to Boot Scooters, Inc. and
precludes coverage to Defendants Vick and Tedrick. Plaintiff
contends that the allegations in the initial petition are
admissions that may be used against Defendants.Defendants assert
that, because Charles McLaughlin amended his Petition, his
initial allegations are of no legal consequence; therefore,
MESA cannot avoid defending or indemnifying Boot Scooters,
Vick, and Tedrick in the underlying lawsuit.
Court finds no basis in the law for adopting any of the
parties' positions. As set forth above, Oklahoma is not a
“four corners” state and the insurer was
obligated, regardless of the allegations, to consider the
facts, not merely the language of the state-court petitions.
The parties' briefs operate under the assumption that the
legal monikers assigned by the underlying plaintiff dictate
the outcome of the declaratory judgment action. The terms
“assault” and “battery” are defined
within the Policy; those definitions apply and “it is
irrelevant how [Charles McLaughlin may] have pled [his]
claims in state court. Instead the Court must focus on the
relevant language in the insurance policy.” James
Rivers Ins. Co. v. Blue Ox Dance Hall, LLC, No.
16-cv-0151-CVE-FHM, 2017 WL 2367052, * 5 (N.D. Okla. May 31,
2017); see also First Bank of Turley, 928 P.2d 298,
303 n. 13 (“The duty to defend should focus upon
the facts rather than upon the complaint's
allegations, which may or may not control the ultimate
determination of liability.”)(emphasis in
original)(citing Texaco, Inc. v. Hartford Acc. and
Indemnity, 453 F.Supp. 1109, 1113 (E.D.Okla. 1978));
Hartford Cas. Ins. v. Merchants & Farmers Bank,
928 So.2d 1006, 1012 (Ala. 2005)(“it is the facts, not
the legal phraseology, that determine whether an insurer has
a duty to defend its insured in the action.”) Thus, the
Court finds that Plaintiff's first argument in support of
summary judgment provides no basis for limiting or excluding
coverage to Boot Scooters, Vick and Tedrick.
We will pay those sums that the insured becomes legally
obligated to pay as damages because of “bodily
injury” or “property damage” to which this
insurance applies. . .
This insurance applies to “bodily injury” and
“property damage” only if:
(1) The “bodily injury” or “property
damage” is caused by an ...