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First Mercury Ins. Co. v. Sudderth

United States District Court, N.D. Georgia, Atlanta Division

December 12, 2014

FIRST MERCURY INSURANCE COMPANY, Plaintiff,
v.
EMILY SUDDERTH, Defendant

For First Mercury Insurance Company, Plaintiff, Counter Defendant: Christopher Cody Meeks, Seth M. Friedman, LEAD ATTORNEYS, Weissman Nowack Curry & Wilco, P.C., Atlanta, GA.

For Emily Sudderth, Defendant: Ariel Ephraim Shapiro, Magill Atkinson Dermer LLP - Atl, Atlanta, GA; Steven Andrew Suna, Davis Zipperman Kirschenbaum & Lotito, Atlanta, GA; David Marlow Atkinson, Magill Atkinson Dermer, LLP, Atlanta, GA.

For Emily Sudderth, Counter Claimant: Ariel Ephraim Shapiro, Magill Atkinson Dermer LLP - Atl, Atlanta, GA; David Marlow Atkinson, Magill Atkinson Dermer, LLP, Atlanta, GA.

Page 1329

OPINION AND ORDER

THOMAS W. THRASH, JR., United States District Judge.

This is a declaratory judgment action regarding an insurance coverage dispute. It is before the Court on the Plaintiff's Motion for Summary Judgment [Doc. 27] and the Defendant's Motion for Summary Judgment [Doc. 28]. For the reasons stated below, the Plaintiff's Motion for Summary Judgment is GRANTED and the Defendant's Motion for Summary Judgment is DENIED.

I. Background

On the evening of May 15, 2010, the Defendant Emily Sudderth and her friends went to Soho Grand, a bar in McDonough, Georgia, for drinks.[1] Ms. Sudderth and her friends remained at the bar for about two hours.[2] Around 12:30 or 12:40 A.M., on May 16, Ms. Sudderth went to pay her tab at the bar.[3] While there, Ms. Sudderth heard a commotion behind her and turned around to see a man with a chair.[4] The man threw the chair, hitting Ms. Sudderth in the foot.[5] This caused Ms. Sudderth excruciating pain.[6]

Ms. Sudderth's friends were standing nearby during this incident.[7] Two friends, Cara Campbell and Erika Johnson, testified that they saw a security officer pulling a man out of the bar.[8] Ms. Campbell explained that the security officer had his arms around the man.[9] Ms. Johnson further testified that she saw the security

Page 1330

officer kick, throw, push, or knock the chair that hit Ms. Sudderth.[10]

On April 13, 2012, Ms. Sudderth filed a lawsuit in the State Court of Henry County, Georgia (the " Underlying Lawsuit" ), seeking to recover for personal injuries sustained as a result of this incident.[11] The Underlying Lawsuit seeks to hold Soho Grand and several others jointly and severally liable for Ms. Sudderth's injuries.[12] The Plaintiff First Mercury Insurance Company (" FMIC" ) issued a commercial liability policy to Soho Grand, which was in effect at all relevant times.[13] FMIC defended Soho Grand and its employees in the Underlying Lawsuit pursuant to a reservation of rights under the policy.[14] The policy limits coverage to $100,000 for claims in any way connected to an assault or battery, as defined by the policy.[15] The parties have reached a confidential settlement in the Underlying Lawsuit -- the only remaining issue is whether the insurance policy's assault and battery endorsement applies.[16] Both parties now move for summary judgment on that issue. The Plaintiff contends that the endorsement applies; the Defendant contends that it does not.

II. Legal Standard

Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law.[17] The court should view the evidence and any inferences that may be drawn in the light most favorable to the nonmovant.[18] The party seeking summary judgment must first identify grounds to show the absence of a genuine issue of material fact.[19] The burden then shifts to the nonmovant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist.[20] " A mere 'scintilla' of ...


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