BARRY W. ASHE, UNITED STATES DISTRICT JUDGE.
Before the Court is a motion by plaintiff American General Life Insurance Company ("AGLIC") for summary judgment seeking a declaration that it properly denied defendant Jaronet S. Whitaker's claim for proceeds under the accidental death benefit rider on the policy insuring the life of her deceased son Armand Jarion
This case involves an insurer seeking a declaratory judgment that it properly denied accidental death benefits to the beneficiary of a life insurance policy. In 2012, Whitaker obtained a life insurance policy and accidental death benefit rider on Brown, and named herself as the policy owner and beneficiary.
The coverage is also subject to the following exclusions:
Brown v. Kenner Police Dep't, 2018 WL 5251912, at *1-3 (E.D. La. Oct. 22, 2018) (Vance, J.) (citations omitted) ("civil action no. 17-3445").
Civil action no. 17-3445 was a suit brought by Brown's parents and brothers against Officer Romano and the City of Kenner asserting state law claims for wrongful death, survival, and intentional infliction of emotional distress, and federal civil rights claims under 42 U.S.C. § 1983. Brown v. Kenner Police Dep't, 2018 WL 5251912, at *3. The Brown plaintiffs contended that Brown was wrongfully shot and killed without just cause. Id. On October 22, 2018, this Court granted defendants' motion for summary judgment holding that "Officer Romano's use of deadly force was not clearly unreasonable because he reasonably feared that Brown posed an immediate threat to the safety of Officers Tusa and Cusimano." Id. at *6. To reach this conclusion, the Court examined the summary judgment evidence in the light most favorable to the plaintiffs, which led to the following picture of the incident:
Id. at *5 (citations omitted). Further, the Court concluded that there could not be municipal liability on the part of the City of Kenner in the absence of a constitutional violation, and it declined to exercise supplemental jurisdiction over the remaining state law claims. Id. at *9-10.
On February 1, 2017, AGLIC received Whitaker's notice of claim on Brown's life insurance policy.
On March 29, 2018, Whitaker's counsel requested that AGLIC reconsider its decision, and threatened legal action if AGLIC did not pay the accidental death benefit rider.
AGLIC filed the instant motion for summary judgment arguing that the undisputed material facts as explained in Brown v. Kenner Police Dep't, 2018 WL 5251912, at *1-3 (E.D. La. Oct. 22, 2018) (Vance, J.), prove that it properly denied Whitaker's claim under the accidental death benefit rider.
Whitaker argues that AGLIC's motion is premature because there are outstanding
Summary judgment is proper "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." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing Fed. R. Civ. P. 56(c)). "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial." Id. A party moving for summary judgment bears the initial burden of demonstrating the basis for summary judgment and identifying those portions of the record, discovery, and any affidavits supporting the conclusion that there is no genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. If the moving party meets that burden, then the nonmoving party must use evidence cognizable under Rule 56 to demonstrate the existence of a genuine issue of material fact. Id. at 324, 106 S.Ct. 2548.
A genuine issue of material fact exists if a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1996). The substantive law identifies which facts are material. Id. Material facts are not genuinely disputed when a rational trier of fact could not find for the nonmoving party upon a review of the record taken as a whole. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Equal Emp't Opportunity Comm'n v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014). "[U]nsubstantiated assertions," "conclusory allegations," and merely colorable factual bases are insufficient to defeat a motion for summary judgment. See Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505; Hopper v. Frank, 16 F.3d 92, 97 (5th Cir. 1994). In ruling on a summary judgment motion, a court may not resolve credibility issues or weigh evidence.
After the movant demonstrates the absence of a genuine dispute, the nonmovant must articulate specific facts and point to supporting, competent evidence that may be presented in a form admissible at trial. See Lynch Props., Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998); Fed. R. Civ. P. 56(c)(1)(A) & (c)(2). Such facts must create more than "some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. When the nonmovant will bear the burden of proof at trial on the dispositive issue, the moving party may simply point to insufficient admissible evidence to establish an essential element of the nonmovant's claim in order to satisfy its summary judgment burden. See Celotex, 477 U.S. at 322-25, 106 S.Ct. 2548; Fed. R. Civ. P. 56(c)(B). Unless there is a genuine issue for trial that could support a judgment in favor of the nonmovant, summary judgment must be granted. See Little, 37 F.3d at 1075-76.
Under Louisiana law, an insurance policy, like any other contract, is construed according to the general rules of contract interpretation set forth in the Louisiana Civil Code. Cadwallader v. Allstate Ins. Co., 848 So.2d 577, 580 (La. 2003) (citations omitted). Contracts are interpreted to determine "the common intent of the parties." Id. (citations omitted). "Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning." Id. (citations omitted). An insurance policy "should not be interpreted in an unreasonable or strained manner under the guise of contractual interpretation to enlarge or to restrict its provisions beyond what is reasonably contemplated by unambiguous terms or achieve an absurd conclusion." Id. (citations omitted). A court cannot exercise "inventive powers to create an ambiguity where none exists or the making of a new contract when the terms express with sufficient clearness the parties' intent." Id. (citations omitted). Thus, clear and unambiguous policy wording that expresses the parties' intent is enforced as written. Id.
Ambiguous provisions and "equivocal provisions seeking to narrow an insurer's obligation," on the other hand, are strictly construed against the insurer and in favor of coverage. Id. (citations omitted). However, the strict construction principle applies only if the ambiguous policy provision is susceptible of more than one reasonable interpretation. Id. (citations omitted). "[T]he insurer has the burden of proving the applicability of a coverage exclusion." Hampton v. Lincoln Nat'l Life Ins. Co., 445 So.2d 110, 113 (La. App. 1984). "The determination of whether a contract is clear or ambiguous is a question of law." Cadwallader, 848 So. 2d at 580.
A claimant seeking to recover proceeds from accidental death benefit coverage has the initial burden of establishing that the insured's primary cause of death was "accidental." Dugas v. Travelers Ins. Co., 785 F.2d 550, 551 (5th Cir. 1986) (citing Johnson v. Nat'l Life & Accident Ins. Co., 331 So.2d 87, 88 (La. App. 1976)). Generally, if the "insured's death was not a natural death or a suicide[,] the court must then infer that the death was accidental." Id. (citing Willis v. Willis, 287 So.2d 642, 645 (La. App. 1973)). If an accidental death is proved, "the burden shifts to the insurer to show by `a preponderance of the evidence that such insurer is nevertheless not liable by reason of a special defense or an exclusionary clause of the policy in question.'" Id. (quoting Willis, 287 So. 2d at 645).
One special defense available to the insurer is that the death was not accidental within the meaning of the policy. Id. Under Louisiana law, it is well established that an insured's death is not accidental if he is killed in a situation in which he was the aggressor. Id. at 551-52 (citing Cutitto v. Metro. Life Ins. Co., 185 La. 161, 168 So. 761, 762 (1936) ("[it] is well established that where the insured is intentionally injured by another, and the injury is not the result of misconduct or an assault by the insured, but is unforeseen, in so far as he is concerned, the injury is accidental within the meaning of an accident policy"); Barham v. State Life Ins. Co. of Ind., 17 La.App. 253, 135 So. 730 (1931) (holding that insured's death in a fight, while not explicitly excluded from coverage, was not "accidental" within double indemnity provision of policy as insured was the aggressor in the fight); Thom v. Metro. Life Ins. Co., 2 So.2d 269 (La. App. 1941) (holding that the insured death was not "accidental" where he was an aggressor who assaulted his opponent with a deadly weapon)). In Bowman v. Inter-Ocean Ins. Co., 241 So.2d 579 (La. App. 1970), the court held that the insurer properly denied benefits under an accidental death policy when the insured was the aggressor in a shooting that caused his death, because "[t]he law is clear that if an insured is an aggressor and his actions precipitate his death there can be no recovery under the policy." Id. at 580; see also Lemay v. Life Ins. Co. of Sw., 688 F.Supp. 1118, 1119 (W.D. La. 1988) (accord). The insurer must prove by a preponderance of the evidence that the insured was the aggressor. Lemay, 688 F. Supp. at 1120 (citing Dugas, 785 F. 2d at 551; Fed. R. Evid. 302).
In this case, the summary judgment evidence here and the undisputed record in civil action no. 17-3445 establish that Brown was the aggressor in the situation that led to his death. Brown's brother called the police after Brown threatened him with a knife. Brown was non-compliant with the officers' directives when they were trying to take Brown into protective custody for an immediate psychiatric examination pursuant to the Jefferson Parish coroner's order. Immediately preceding the shooting, Brown continued to threaten officers with knives after tear gas and non-lethal weapons failed to subdue him. When Officer Romano fired his weapon, Brown was ten feet from Officers Tusa and Cusimano and advancing, armed with two knives, and refusing to comply with the officers' repeated commands to drop his weapons. Under these circumstances, Brown was clearly the aggressor. Whitaker has not presented any competent summary judgment evidence to refute these facts. Thus, Brown's death was not "accidental" within the meaning of the policy, and AGLIC properly denied Whitaker's
AGLIC also contends that, even if Brown's death were accidental, it properly denied benefits under the criminal acts exclusion because Brown was arguably committing the offenses of assault and felony aggravated assault of a peace officer when he was killed.
Again, the undisputed record establishes that Brown was advancing on Officers Tusa and Cusimano with knives at the time he was shot. These actions arguably constitute assault and aggravated assault of a peace officer. Whitaker argues that Brown was not charged with a crime.
Accordingly, for the foregoing reasons,
IT IS ORDERED that AGLIC's motion for summary judgment (R. Doc. 26) is GRANTED.
