First Mercury Insurance Company v. Emily Sudderth ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-10119
Non-Argument Calendar
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D.C. Docket No. 1:13-cv-03494-TWT
FIRST MERCURY INSURANCE COMPANY,
Plaintiff-Counter Defendant-Appellee,
versus
EMILY SUDDERTH,
Defendant-Counter Claimant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(August 21, 2015)
Before ED CARNES, Chief Judge, TJOFLAT and WILSON, Circuit Judges.
PER CURIAM:
Emily Sudderth and First Mercury Insurance Company filed cross motions
for summary judgment in this declaratory judgment action. The district court
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denied Sudderth’s and granted First Mercury’s. This is Sudderth’s appeal. We
review de novo the district court’s grant of summary judgment and view the
evidence in the light most favorable to Sudderth. Am. Bankers Ins. Co. of Fla. v.
Nw. Nat’l Ins. Co., 198 F.3d 1332, 1334 (11th Cir. 1999).
I.
Sudderth’s right foot was injured as she and several friends were about to
leave the Soho Grand, a nightclub in McDonough, Georgia. She and one of her
friends were at the bar paying their tabs when they heard a noise from behind
them. According to Sudderth’s deposition testimony, she turned around just in
time to see one of the bouncers, Eric Perkins, throw a chair. The next thing she
remembers is falling to the floor because of an excruciating pain in her right foot.
Sudderth’s friends helped her leave the Soho Grand and sit on the sidewalk, where
she waited until an ambulance arrived and took her to the hospital. She has
suffered pain in her right foot and other problems since then.
The depositions of other witnesses describe the incident in greater detail.
Sudderth’s friend remembered hearing a noise and then turning to see Perkins set a
chair in motion. Although the friend could not remember whether the chair was
“kicked or thrown or pushed, [or] knocked,” 1 she testified that Perkins moved the
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To the extent that this testimony contradicts Sudderth’s own testimony that Perkins threw
the chair, we must accept Sudderth’s testimony and reject her friend’s. Our duty to read the
record in the light most favorable to Sudderth does not include a “duty to disbelieve [her] sworn
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chair while he was “pulling a guy out” of the Soho Grand who “was drunk and
causing a scene.” R. at 646–47. That “guy” was Marcus Majano.
Neither Perkins nor Majano were deposed, but two other security guards
were. One of them, a second bouncer, was inside the Soho Grand with Perkins.
The second bouncer testified that “Perkins had to grab [Majano] physically and get
[him] out of the bar.” Id. at 695. He remembers Perkins putting Majano in a
“bearhug” and “dragging” Majano across the dance floor. Id. at 697, 701. The last
thing the second bouncer saw was Majano going “limp” and “kind of calm[ing]
down” as Perkins dragged him towards the door and out of sight. Id. at 701. The
other security guard who was deposed, an off-duty police officer, was standing
outside the Soho Grand during the incident. He testified that he opened the front
door to see “Perkins carrying Majano” — who was at this point “kicking and
flailing” — “out from the bar.” Id. at 666. As Perkins dragged Majano out of the
bar, a second man attacked Perkins, and the off-duty officer had to physically
restrain the second man. The off-duty officer then arrested both Majano and the
second man.
testimony.” Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir. 2005) (en banc). Because
Sudderth is the nonmoving party, we must accept her testimony even if other evidence in the
record is “more favorable on a factual issue than [her] own testimony.” Jones v. UPS Ground
Freight, 683 F.3d 1283, 1295–96 (11th Cir. 2012); see id. at 1296 n.38 (discussing the “good
reason” for this rule). Accepting Sudderth’s testimony means that it is a fact for purposes of this
appeal that Perkins threw the chair that hit her.
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After the incident, Sudderth filed a lawsuit in Georgia state court to recover
for the injuries to her right foot caused by the chair that Perkins threw. In that
lawsuit she sought to hold Perkins and several other defendants jointly and
severally liable for her injuries. First Mercury defended the state court lawsuit
according to the terms of the general liability insurance policy that it had issued to
the Soho Grand. While the state court lawsuit was pending, First Mercury filed
this declaratory judgment action in the district court, in which it asked the court to
construe the Soho Grand’s insurance policy. The parties then settled the state court
lawsuit and made its outcome contingent on the outcome of this declaratory
judgment action.
The insurance policy at the center of this action provides coverage to the
Soho Grand for “bodily injury” claims up to a “general aggregate limit” of
$2 million. But the policy also contains an “Assault & Battery Coverage
Endorsement.” The assault and battery endorsement lowers the coverage limit to
$100,000 for:
Claims or suits to recover damages for bodily injury or property
damage based upon, related to, arising out of, directly or indirectly
resulting from, in consequence of, in any way connected to, or in the
sequence of events involving any actual or alleged assault and/or
battery, as those terms are defined herein . . . .
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Rawle at 72 (emphasis and quotation marks omitted). It then defines a “battery” as “a
harmful or offensive contact by a person or thing, or a harmful or offensive contact
between or among two or more persons.” Id. at 76.
In the district court, First Mercury and Sudderth stipulated that this case
presents only one question: Does the assault and battery endorsement apply to
Sudderth’s claim? First Mercury contends that it does, and Sudderth contends that
it does not. They each filed motions for summary judgment. The district court
agreed with First Mercury and entered an order granting its motion for summary
judgment and denying Sudderth’s. She appeals that order.
II.
Sudderth contends that the assault and battery endorsement does not apply to
her claim for the injuries she suffered during Perkins’ removal of Majano from the
Soho Grand. She is mistaken.
The record shows that Perkins committed a battery — as defined by the
assault and battery endorsement in the Soho Grand’s insurance policy — on
Majano. The endorsement defines a “battery” as “a harmful or offensive contact
between or among two or more persons.” Sudderth concedes that there was
“contact” between Perkins and Majano; she disputes that it was “harmful or
offensive.” Perkins forcibly removed Majano from the Soho Grand. He placed
Majano in a “bearhug.” And as he “dragg[ed]” Majano out the front door, Majano
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began “kicking and flailing.” Then another man attacked Perkins. An off-duty
police officer had to help Perkins physically restrain both Majano and the other
man. In Georgia, “even minimal touching” can support a cause of action for
battery. Darnell v. Houston Cnty. Bd. of Educ., 506 S.E.2d 385, 388 (Ga. Ct. App.
1998); see Jarrett v. Butts, 379 S.E.2d 583, 585–86 (Ga. Ct. App. 1989) (holding
that “touch[ing the] wrists and hair” of a student to pose her for a picture at a
school dance could constitute a battery). Perkins’ touching of Majano was nothing
if not “minimal.”
Sudderth disputes none of that. Instead, she argues that the record contains
no evidence that Majano himself found his contact with Perkins to be offensive.
But she misunderstands the objective nature of the offensiveness inquiry. See
Restatement (Second) of Torts § 19 (1965) (“A bodily contact is offensive if it
offends a reasonable sense of personal dignity.”) (emphasis added), cited with
approval by Vasquez v. Smith, 576 S.E.2d 59, 62 (Ga. Ct. App. 2003). In other
words, the question is not whether Majano in fact found his contact with Perkins to
be offensive, but instead whether a reasonable person would have done so. See
Lawson v. Bloodsworth, 722 S.E.2d 358, 359–60 (Ga. Ct. App. 2012) (“The test is
what would be offensive to an ordinary person not unduly sensitive as to his
dignity.”). A reasonable person would find it offensive to be placed in a bearhug
and dragged out of a nightclub.
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Despite that, Sudderth argues that Perkins did not commit a battery because
Majano “was submitting” to being removed from the bar. She never uses the word
“consent,” but her argument seems to be that Perkins’ removal of Majano could
not have been a battery because Majano consented to it. See Ga. Code Ann. § 51-
11-2 (“As a general rule no tort can be committed against a person consenting
thereto . . . .”). She is right that another bouncer testified that he saw Majano go
“limp” and “kind of calm down” as Perkins dragged him towards the front door.
She cites no Georgia law, however, for the proposition that going “limp” during
the commission of a battery amounts to consent to it. In any event, there is a
bigger problem with her consent argument. The record shows that Majano did not
start limp or calm and did not stay limp or calm. Just after Perkins dragged him
out of the other bouncer’s line of sight and into the line of sight of the off-duty
police officer, Majano began kicking and flailing and was eventually physically
restrained again.
A reasonable person would have found it offensive to be forcibly removed
from the Soho Grand in the manner that Perkins removed Majano, and there is no
evidence that Majano consented to his removal. The contact between the two of
them was therefore a battery within the meaning of the assault and battery
endorsement.
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The endorsement applies to Sudderth’s claim if the injuries she suffered
were “based upon, related to, arising out of, directly or indirectly resulting from, in
consequence of, in any way connected to, or in the sequence of events involving”
Perkins’ battery of Majano. While Perkins was removing Majano from the Soho
Grand, Perkins threw a chair, which hit Sudderth and caused her injuries. To use
the endorsement’s language, she suffered those injuries “in the sequence of events
involving” Perkins’ removal of Majano, which was a battery. Because of that, the
assault and battery endorsement applies to Sudderth’s claim unless Georgia law
prevents us from applying it as written.
III.
Sudderth contends that if the text of the assault and battery endorsement
applies to her claim, Georgia’s rules for construing insurance contracts prevent us
from applying it as written. She supports that contention with two arguments.
First, she argues that no reasonable layman would read the assault and
battery endorsement to apply to her claim. See York Ins. Co. v. Williams Seafood
of Albany, Inc., 223 F.3d 1253, 1254–55 (11th Cir. 2000) (describing the Georgia
rule that the terms of an insurance policy mean “what a reasonable person in the
position of the insured would understand them to mean” and are “read as a layman
would read” them) (quotation marks omitted). Recall the endorsement’s definition
of a “battery”: “a harmful or offensive contact by a person or thing, or a harmful
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or offensive contact between or among two or more persons.” Sudderth asserts
that a reasonable layman would read that definition and understand that it defines a
battery as “a violent act that intentionally causes substantial harm.” The problem
with her assertion is that it is inconsistent with the endorsement’s unambiguous
definition of battery. See Furgerson v. Cambridge Mut. Fire Ins. Co., 516 S.E.2d
350, 352 (Ga. Ct. App. 1999) (“Policy terms cannot be ignored or rewritten to
provide coverage where there is none.”); Burnette v. Ga. Life & Health Ins. Co.,
379 S.E.2d 188, 189 (Ga. Ct. App. 1989) (“Courts have no more right by strained
construction to make an insurance policy more beneficial by extending the
coverage contracted for than they would have to increase the amount of
coverage.”).
Second, Sudderth argues that applying the assault and battery endorsement
as written would violate Georgia’s prohibition on “illusory” coverage in insurance
policies, which is violated when a policy “purport[s] to offer coverage that
inevitably will be defeated by one of the policy’s exclusions.” Cynergy, LLC v.
First Am. Title Ins. Co., 706 F.3d 1321, 1327 (11th Cir. 2013). Coverage in one
part of an insurance policy is illusory when an exclusion in another part
“completely nullifies” the coverage. Id. Exclusions that make coverage illusory
are ineffectual. See, e.g., Transp. Ins. Co. v. Piedmont Constr. Grp., LLC, 686
S.E.2d 824, 828 (Ga. Ct. App. 2009); see also Maxum Indem. Co. v. Jimenez, 734
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S.E.2d 499, 505 (Ga. Ct. App. 2012) (“When the provisions of an insurance
contract are repugnant to one another, the provision most favorable to the insured
will be applied.”).
According to Sudderth, applying the definition of battery as written would
completely nullify the policy’s coverage for “bodily injury.” The assault and
battery endorsement nullifies nothing, however. It applies only to claims
connected with assault or battery, and it does not nullify all coverage of those
claims but only reduces the amount of the coverage. Sudderth’s “unhappiness that
the [endorsement] is triggered by the undisputed facts underlying this particular
case does not transform” it into a violation of the prohibition against illusory
coverage. Cynergy, 706 F.3d at 1327.
IV.
For the reasons discussed, the district court properly granted summary
judgment to First Mercury. Because of that holding, we do not address Sudderth’s
additional argument that the district court erred by denying her own motion for
summary judgment.
AFFIRMED.
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