PAUL E. DANIELSON, Justice.
Appellants Desiree Kolbeck, Amy Eddy, Jeanette Orlando, Nicole Farr, Summer Hagan, Jamie Rodriguez, Pebbles Rodriguez, Spencer Ondrisek, Seth Calagna, Jeanne Estates Apartments, Inc., Tony Alamo a/k/a Bernie LaZar Hoffman, Steven Johnson, Cherry Hill Printing Company, Inc., Angela Morales, Jim Myers, David Romero, Nina Romero, Jennifer Kolbek, Joni Johnson, Suzanne Streit, Marty Moan, Anna Moan, Rob Walker, June Walker,
The relevant facts are these. TIE issued an apartment-owners insurance policy to appellant Jeanne Estates Apartments (JEA) that became effective on July 2, 1998. From the policy period beginning August 7, 2006, FIE renewed the policy and continued to provide coverage through the 2008-2009 policy year. In 2008 and 2010, due to its connection to Tony Alamo and the Tony Alamo Christian Ministries, JEA became involved in three underlying lawsuits, which involved several of the appellants: the Coie case, the Ondrisek case, and the Kolbeck case. Claims for coverage were submitted by JEA to TIE/FIE in regard to those cases.
On May 20, 2011, TIE/FIE filed a complaint for declaratory judgment seeking that the circuit court find the following: that TIE/FIE owed no coverage to any person for any of the alleged misconduct that formed the basis of the claims in the underlying Coie, Ondiresk, and Kolbeck lawsuits; that TIE/FIE owed no coverage for any person upon any refiling or renewal of said claims under a new docket number or in a new lawsuit; that TIE/FIE had no duty to provide a defense to any person who was a defendant in the underlying lawsuits; that TIE/FIE would have no duty to provide a defense to any such person should claims be renewed under a new docket number or refiled in a new lawsuit; and for all other proper relief to which they may be entitled. The complaint was subsequently amended several times; however, the prayer for relief remained the same. Several answers were also filed in response.
On June 6, 2012, TIE/FIE filed a motion for summary judgment, again requesting that the circuit court declare that they owed no coverage to any person for any of
Appellants now appeal this summary-judgment order.
The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. See Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. See id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. See id. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. See id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. See id.
Where the appeal is from the grant of summary judgment in cases involving an insurance policy, we liberally construe any ambiguities in the policy in favor of the insured. See Scottsdale Ins. Co. v. Morrow Land Valley Co., LLC, 2012 Ark. 247, 411 S.W.3d 184. The court, and not the jury, determines the construction and legal effect of the policy, except when the meaning of the language depends upon disputed extrinsic evidence. See id.
As a general rule, when determining a liability carrier's duty to defend, the pleadings against the insured determine the insurer's duty to defend. See Murphy Oil USA, Inc. v. Unigard Sec. Ins. Co., 347 Ark. 167, 61 S.W.3d 807 (2001). The duty to defend is broader than the duty to indemnify; the duty to defend arises when there is a possibility that the injury or damage my fall within the policy coverage. See id. Where there
The insured in the instant case was JEA. Before reviewing the allegations against JEA in the underlying complaints, it is important to note that the circuit court found that the inception of coverage of the applicable insurance policy began in July 1998. The judgment received by plaintiff Coie was entered on September 14, 1995. Therefore, the allegations against JEA in the Coie claim occurred prior to the inception of coverage and it is clear that no genuine issue of material fact exists as to coverage of those claims. For that reason, the circuit court did not err in granting summary judgment in favor of TIE/FIE as to the Coie claim.
It is also clear after review that no genuine issue of material fact exists as to TIE/FIE's coverage of the Ondrisek claim. JEA was not a named defendant in the Ondrisek claim; however, JEA made a demand for the defense of Tony Alamo in that case. The plaintiffs in that case asserted that when they were teenage members of the Alamo religious organization, they suffered several beatings administered by either Tony Alamo or John Kolbek, acting at Alamo's direction. Their complaint asserted causes of action for battery, false imprisonment, outrage, and conspiracy. Plaintiffs specifically asserted that the damage they sustained was in the form of physical pain and suffering, emotional distress, and scarring/disfigurement, and was caused by the defendants "intentionally" and "with malice."
The initial apartment-owners policy issued to JEA, which was renewed each year, defined the insureds, in pertinent part, as follows:
(Emphasis added.) Tony Alamo was not acting as an officer or director for JEA, nor with respect to any liability as a stockholder of JEA, nor as an employee performing duties related to the conduct of the business of JEA when he caused harm to the plaintiffs in Ondrisek. Therefore, Tony Alamo was not an insured party under JEA's insurance policy. Additionally, the complaint did not contain any specific allegation that any of the actions that caused harm to the plaintiffs were carried out on JEA's property. Finally, all allegations were comprised of intentional tortious acts. JEA's policy specifically excluded coverage for "`body injury' or `property damage' expected or intended from the standpoint of the insured." Therefore, even were we to assume that Tony Alamo could have been considered an insured under the policy, the policy coverage was not applicable to the actions that Alamo was accused of in the Ondrisek
We now turn to the final underlying case, the Kolbek case, which is the subject of the arguments presented on appeal. The Kolbek case began in 2010 when seven young women initiated a lawsuit against a number of persons and entities affiliated with Tony Alamo, including JEA. The women were all minor members of the Alamo organization who were married to Tony Alamo at young ages.
The final complaint, the fifth amended complaint, added defendants and reaffirmed allegations of negligence against the various entities, including JEA. This alleged negligence included (1) "allowing Tony Alamo unfettered access" to younggirls; (2) endorsing or facilitating "spiritual weddings" with underage girls; (3) failure to protect the girls from sexual abuse and beatings; (4) failure to prevent Alamo from taking and distributing nude photos of the girls; (5) failure to prevent "others" from physically abusing the girls at the instruction of Tony Alamo; (6) and failure to keep locations they managed in a reasonably safe condition. The fifth amended complaint also reasserted the negligent hiring, retention, and supervision claims against all the Alamo entities, including JEA, but changed its claims regarding Alamo and stated that "Alamo was not an employee or member of TACM or any Defendant entity." New allegations for false imprisonment, invasion of privacy, and defamation were advanced against all defendants, including JEA. Claims were additionally advanced that JEA and other defendants were liable for trafficking and transporting minors for sexual purposes, and were liable for failure to report child abuse to the appropriate authorities. Finally, all defendants, including JEA, were accused of the tort of outrage.
As previously noted, the circuit court also granted summary judgment in favor of TIE/FIE regarding its duty to defend in the Kolbek case. Some of the appellants argue that the circuit court acted prematurely because the insureds' liability had not been established in the underlying lawsuit. However, this court has, on multiple occasions, allowed a carrier to obtain a ruling on the duty to defend and/or indemnify when appropriate. See, e.g., McSparrin v. Direct Ins., 373 Ark. 270, 283 S.W.3d 572 (2008); Jordan v. Atlantic Cas. Ins. Co., 344 Ark. 81, 40 S.W.3d 254 (2001). Nonetheless, this argument was not well developed, nor is it convincing.
Appellants also collectively argue that the circuit court erred in granting summary judgment because it improperly considered evidence outside the pleadings. Generally, insurers are not allowed to refuse to defend on the grounds that they
The majority of the remaining arguments presented by appellants — that the circuit court erred by holding that JEA negated all possibility that any allegation might lead to an award of covered damages, that the evidence did not at least create a material issue of fact on the duty to defend, and that not one claim, including the alleged negligence, was within the scope of coverage — are found to be without merit as this court concludes that the allegations made in the Kolbek case are simply not the type of claims covered by the insurance policy issued to JEA. The insurance policy issued by TIE/FIE to JEA states that the insurance applies only to "bodily injury," "property damage," "personal injury," "advertising injury," and medical expenses arising out of the ownership, maintenance or use of the premises shown in the Schedule
While this court has not interpreted the "arising out of" language in a liability policy of an apartment complex, we have done so in other types of liability policies. In Owens v. Ocean Accident & Guarantee Corp. Ltd., 194 Ark. 817, 109 S.W.2d 928 (1937), the plaintiff funeral home/ambulance operator had an automobile insurance contract on its ambulance that covered any "damages on account of bodily injuries ... caused by the ownership, maintenance, or use" of the ambulance. Id. at 818, 109 S.W.2d at 928. The ambulance officer took a stretcher out of the ambulance, went into a patient's home with it, and negligently allowed the patient to slide off the stretcher before she was loaded into the ambulance, which injured her. See id. We held that the injuries were covered because they did arise out of the use of the ambulance and stated as follows:
Owens, 194 Ark. at 822, 109 S.W.2d at 930 (1937) (emphasis added). However, in Hartford Fire Insurance Co. v. State Farm Mutual Automobile Insurance Co., 264 Ark. 743, 574 S.W.2d 265 (1978), we found that an accidental death caused by the discharge of a gun left in an insured recreational vehicle while the gun was being held by a person also inside the parked vehicle was not an injury "arising out of the ownership, maintenance or use" of the insured camper because the accidental death could not be said to be causally related to the use of the camper. Therefore, we have recognized this contractual language in insurance policies to require some sort of causal connection between a transaction or occurrence that is essential to the use of the insured property and the injury. That connection fails to exist in the instant case.
Furthermore, while appellants allege that the circuit court failed to give effect to the term "and operations necessary or incidental to those premises," the injuries alleged also did not arise out of any operations necessary or incidental to JEA's premises. This court has not interpreted the "necessary or incidental" language; however, other jurisdictions have and have required that the same causal connection exist between the injury and the insured's business/operations. See Newman v. United Fire & Cas. Co., NO. CV-13-47-M-DLC, ___ F.Supp.2d ___, 2014 WL 494529 (D.Mont. Jan. 15, 2014) (the district court found the duty to defend had been triggered because the complaint drew a causal connection between the services provided by the insured and the damages); Szczeklik v. Markel Int'l Ins. Co., Ltd., 942 F.Supp.2d 1254 (M.D.Fla.2013) (the district court found that the policy provided coverage because the injury stemmed from the negligence in connection with the assembly and preparation of a product that the insured distributed (i.e., it arose out of the business being conducted by the insured)); Servants of the Paraclete, Inc. v. Great Am. Ins. Co., 857 F.Supp. 822 (D.N.M.1994) (the district court found a "reasonable causal connection" between the ownership, maintenance or use of the premises and the alleged sexual abuse of minors because the specific mission of the premises insured was the rehabilitation of pedophilic priests). Again, there is no such connection in the instant case.
Even were we to find that a causal connection existed here between the allegations and the business operations of JEA such that the insurance policy provided coverage, there are several exclusions in the policy that also apply to a majority of the allegations in the instant case.
Affirmed; motion to dismiss denied.
(a) The actual or threatened abuse or molestation of anyone or any person while in the care, custody or control of any insured; or
(b) the negligent
a. False arrest, detention or imprisonment;
b. Malicious prosecution;
c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, by or on behalf of its owner, landlord or lessor;
d. Oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services; or
e. Oral or written publication of material that violates a person's right of privacy.
p. Personal Or Advertising Injury
"Personal Injury" or "advertising injury":
(1) Arising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity;
. . . .
(3) Arising out of the willful violation of a penal statute or ordinance committed by or with the consent of the insured