Court of Appeals of Missouri, Eastern District, Third Division
GATEWAY HOTEL HOLDINGS, INC., RICHFIELD HOSPITALITY SERVICES INC., RICHFIELD HOLDINGS, INC., LIBERTY MUTUAL FIRE INSURANCE COMPANY and LIBERTY MUTUAL GROUP, Appellants,
CHAPMAN-SANDER, INC., and TOM BORMANN, Respondents
Appeal from the Circuit Court of the City of St. Louis. Hon. Mark H. Neill.
FOR APPELLANT: Debbie S. Champion, Victor H. Essen, II, St. Louis, MO.
FOR RESPONDENT: Robert E. Tucker, Ellen K. Siegel, St. Louis, MO.
ROBERT G. DOWD, JR., Presiding Judge. Mary K. Hoff, J. and Sherri B. Sullivan, J., concur.
ROBERT G. DOWD, J.
Gateway Hotel Holdings, Inc., Richfield Hospitality Services, Inc., Richfield Holdings, Inc. (collectively " the Regal" ) and Liberty Mutual Fire Insurance Company and Liberty Mutual Group (collectively " Liberty Mutual" ) appeal from the trial court's grant of summary judgment in favor of Chapman-Sander, Inc. (" Chapman-Sander" ) and Tom Bormann (" Bormann" ). The Regal and Liberty Mutual contend the trial court erred in granting summary judgment in favor of Chapman-Sander and Bormann because: (1) there was a genuine issue of material fact regarding whether Chapman-Sander and Bormann fully performed their duties under the contract with Doug Hartmann Productions, L.L.C. (" Hartmann, L.L.C." ), and (2) there was a genuine issue of material fact regarding whether the Regal and Liberty Mutual could prove a breach of duty in negligence. We reverse.
On December 15, 1998, the Regal entered into a contract with Hartmann, L.L.C. allowing Hartmann, L.L.C. to hold certain boxing matches at the hotel on January 29, 1999 (" the event" ). The contract provided that, among other things, Hartmann, L.L.C. would obtain indemnity insurance in the amount of $5,000,000.00 for the event. Further, Hartmann, L.L.C. agreed to provide an ambulance on standby at the hotel for the event.
Before the event, Hartmann, L.L.C., through Chapman-Sander and Bormann, procured a commercial general liability policy with a limit of $1,000,000.00 from Legion Indemnity Company (" Legion" ) and a commercial excess liability policy with a limit of $4,000,000.00 in excess of the $1,000,000.00 underlying limits from Lexington Insurance Company (" Lexington" ).
The Legion policy contained the following athletic participant exclusions:
EXCLUSION - ATHLETIC OR SPORTS PARTICIPANTS . . . with respect to any operations shown in the Schedule, this insurance does not apply to 'bodily injury' to any person while practicing for or participating in any sports or athletic contest or exhibition that you sponsor.
Further, the Lexington policy contained the following athletic participant exclusion:
ATHLETIC PARTICIPANTS EXCLUSION
This insurance does not apply to 'bodily injury' to any ...