Filed: Oct. 20, 2008
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-1174 ST. PAUL REINSURANCE COMPANY, LIMITED, Plaintiff – Appellee, v. JOSEPH J. RIVIELLO, Defendant – Appellant, and OLLIE'S SEAFOOD GRILLE AND BAR LLC; OLLIE'S BY THE BAY; CHRISTINE B. GOODMAN, Defendants. No. 07-1203 ST. PAUL REINSURANCE COMPANY, LIMITED, Plaintiff – Appellee, v. OLLIE'S SEAFOOD GRILLE AND BAR LLC; OLLIE'S BY THE BAY; CHRISTINE B. GOODMAN, Defendants – Appellants, and JOSEPH J. RIVIELLO, Defendant. Appeal
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-1174 ST. PAUL REINSURANCE COMPANY, LIMITED, Plaintiff – Appellee, v. JOSEPH J. RIVIELLO, Defendant – Appellant, and OLLIE'S SEAFOOD GRILLE AND BAR LLC; OLLIE'S BY THE BAY; CHRISTINE B. GOODMAN, Defendants. No. 07-1203 ST. PAUL REINSURANCE COMPANY, LIMITED, Plaintiff – Appellee, v. OLLIE'S SEAFOOD GRILLE AND BAR LLC; OLLIE'S BY THE BAY; CHRISTINE B. GOODMAN, Defendants – Appellants, and JOSEPH J. RIVIELLO, Defendant. Appeals..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1174
ST. PAUL REINSURANCE COMPANY, LIMITED,
Plaintiff – Appellee,
v.
JOSEPH J. RIVIELLO,
Defendant – Appellant,
and
OLLIE'S SEAFOOD GRILLE AND BAR LLC; OLLIE'S BY THE BAY;
CHRISTINE B. GOODMAN,
Defendants.
No. 07-1203
ST. PAUL REINSURANCE COMPANY, LIMITED,
Plaintiff – Appellee,
v.
OLLIE'S SEAFOOD GRILLE AND BAR LLC; OLLIE'S BY THE BAY;
CHRISTINE B. GOODMAN,
Defendants – Appellants,
and
JOSEPH J. RIVIELLO,
Defendant.
Appeals from the United States District Court for the District
of South Carolina, at Beaufort. Patrick Michael Duffy, District
Judge. (9:06-cv-01080-PMD)
Submitted: September 3, 2008 Decided: October 20, 2008
Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John H. Tiller, Anne L. Ross, HAYNSWORTH SINKLER BOYD, P.A.,
Charleston, South Carolina, for Appellants Ollie’s Seafood
Grille and Bar LLC, Ollie’s By the Bay, and Christine B.
Goodman; Samuel S. Svalina, Beaufort, South Carolina, for
Appellant Joseph J. Riviello. John S. Wilkerson, III, Nosizi
Ralephata, TURNER PADGET GRAHAM & LANEY, P.A., Charleston, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated cases, Ollie’s Seafood Grille and Bar
LLC, Ollie’s by the Bay, Christine B. Goodman (collectively,
“the Ollie’s appellants”), and Joseph J. Riviello appeal from
the summary judgment entered in favor of St. Paul Reinsurance
Company, Ltd. See St. Paul Reins. Co. v. Ollie’s Seafood Grille
and Bar, LLC, 242 F.R.D. 348 (D.S.C. 2007). Finding no error,
we affirm.
At all times pertinent to this case, Goodman owned Ollie’s
by the Bay in Beaufort, South Carolina, through the limited
liability company, Ollie’s Seafood & Grille, LLC. In September
2001, Goodman purchased an insurance policy (the “Policy”) from
St. Paul. The Policy included a Commercial General Liability
Part (“CGL”) and a separate Liquor Liability Coverage Part.
In June 2005, Riviello filed suit in the Court of Common
Pleas for Beaufort County against Jason Diggins, Richard
Derleth, and the Ollie’s appellants. In that action, Riviello
alleges that in June 2002 he visited Ollie’s by the Bay as an
invitee and consumed alcoholic beverages on the premises.
Diggins and Derleth, who were also invitees consuming alcoholic
beverages at Ollie’s by the Bay, allegedly provoked an
altercation and assaulted Riviello. As a result of the
altercation, Riviello sustained serious injuries. In his first
cause of action, Riviello asserts a claim against Diggins and
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Derleth for assault and battery. In his second cause of action,
brought against the Ollie’s appellants, Riviello asserts that he
was injured as a result of their negligent or reckless breach of
a duty to (1) provide a safe and controlled environment for the
entertainment of invitees, (2) prevent the sale of alcohol to a
person in an intoxicated condition, (3) prevent the sale of
alcohol to minors, and (4) protect against the foreseeable
criminal acts of third parties. Riviello seeks to recover for
all injuries he allegedly sustained as a direct or proximate
result of the assault and battery.
The Ollie’s appellants tendered the defense of the
underlying lawsuit to St. Paul. In April 2006, St. Paul (which
provided a defense under a reservation of rights) filed this
declaratory judgment action seeking a declaration that it has no
duty to defend or indemnify the Ollie’s appellants. St. Paul
thereafter moved for summary judgment, arguing that the
underlying lawsuit arises from an assault and battery and,
therefore, is excluded from coverage under the plain language of
the Policy. Specifically, St. Paul pointed to the CGL Part of
the Policy, which excludes liability for claims arising out of
“Assault and Battery, whether caused by or at the instructions
of, or at the direction of or negligence of the insured, his
employees, patrons or any causes whatsoever;” and the Commercial
Liquor Liability Coverage Part of the Policy, which excludes
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“any claim arising out of an assault and/or battery . . .
whether caused by the insured, an employee, a patron or any
other person.” J.A. 45, 70.
The district court granted St. Paul’s summary judgment
motion, holding that St. Paul has no duty to defend or indemnify
the Ollie’s appellants in the underlying litigation. In
reaching this decision, the district court applied common
principles of South Carolina insurance contract law, and it
relied particularly on the factually similar case of Sphere
Drake Insurance Co. v. Litchfield, 438 S.E.2d 275 (S.C. App.
1993).
In Sphere Drake, the state court of appeals held that an
assault and battery exclusion in a nightclub’s insurance policy
applied to a patron’s assault and battery and negligence claims
arising from an incident in which the nightclub’s “bouncer”
assaulted a patron. The policy in Sphere Drake excluded “claims
arising out of Assault and Battery, whether caused by or at the
direction of, the insured, his employees, patrons [or] any cause
whatsoever.” Id. at 277. The court of appeals reasoned:
[T]he separate acts of negligence alleged by [the
plaintiff] are not actionable without the assault and
battery, because without the assault and battery there
would be no damage suffered as a result of the alleged
negligence of [the defendant nightclub]. The
negligence claims are for bodily injury “arising out
of” assault and battery and come within the exclusion.
Id.
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Applying South Carolina law to the facts of this case, the
district court concluded:
In this case, the exclusionary clauses in both the
Commercial General Liability Coverage Part and the
Commercial Liquor Liability Coverage Part of the
Policy unambiguously apply to the underlying lawsuit.
In readily understandable language, these provisions
exclude coverage for claims arising out of assault and
battery, “whether caused by the insured, an employee,
a patron or any other person” or by the “negligence of
the insured, his employees, patrons or any causes
whatsoever.” As was the case in Sphere Drake, the
separate acts of negligence alleged in the underlying
lawsuit would not be actionable without the assault
and battery, because the only injuries suffered by
Riviello were the result of the assault and battery.
As such, the claim against the Ollie’s [appellants]
for negligence “arose from” the alleged assault and
battery, and are excluded from coverage under the
plain terms of the Policy.
242 F.R.D. at 351.
Summary judgment is appropriate “if 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.” Fed. R. Civ. P.
56(c). The relevant inquiry in a summary judgment analysis is
“whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52 (1986). “We review the
district court’s order granting summary judgment de novo,
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viewing the facts in the light most favorable to, and drawing
all reasonable inferences in favor of, the nonmoving party.”
Garofolo v. Donald B. Heslep Assocs., Inc., 405 F.3d 194, 198
(4th Cir. 2005).
We have carefully reviewed the record, the parties’ briefs,
and the controlling law. For the reasons articulated by the
district court, we find that St. Paul is entitled as a matter of
law to a declaration that it does not have a duty to defend or
indemnify the Ollie’s appellants in the underlying lawsuit.
Accordingly, we affirm the summary judgment. * We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
*
While St. Paul’s summary judgment motion was pending,
Riviello sought a continuance under Rule 56(f) in order to
conduct further discovery. The district court denied Riviello’s
request, concluding that he failed to show specific facts that
he hoped to discover that would raise an issue of material fact
regarding St. Paul’s duty to indemnify and defend the underlying
lawsuit. See 242 F.R.D. at 352. Riviello appeals that aspect
of the district court’s order. We hold that the district court
did not abuse its discretion in denying his request. See
generally Ingle v. Yelton, 439 F.3d 191, 195 (4th Cir. 2006)
(stating standard of review).
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