Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Federal Insurance Co. v. Great American Insurance Co.

United States District Court, E.D. Missouri, Eastern Division

September 30, 2016

FEDERAL INSURANCE COMPANY, And ZURICH AMERICAN INSURANCE COMPANY, Plaintiffs,
v.
GREAT AMERICAN INSUANCE COMPANY, Defendant.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the cross-motions for summary judgment filed by Plaintiffs Federal Insurance Company, [Doc. No. 64], and Zurich American Insurance Company, [Doc. No. 63] and Defendant/ Counterclaim Plaintiff Great American Insurance Company, [Doc. No.'s 67, 69 and 71]. For the reasons stated below, Plaintiffs' motions will be granted and Great American's motions will be denied.

         Facts and Background

         This is an action seeking declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202, for the purpose of determining the obligations and priority of coverage for commercial general liability Policy No. CPO 6552614-00 (the Zurich Policy) issued by Defendant Zurich to Yarco Company, Inc. (“Yarco”); commercial excess and umbrella insurance Policy No. 7985-91-48 (the Federal Policy) issued by Plaintiff Federal to Yarco; commercial general liability Policy No. ESG0033185 (the Indian Harbor Policy) issued by Indian Harbor to Municipal Mortgage & Equity, LLC (“MM&E”) for the benefit of Whispering Lake; and umbrella insurance Policy No. UM 2386960 (the Great American Policy) issued by Defendant Great American to Distinguished Properties Umbrella Managers, Inc. (“Distinguished Properties”) for the benefit of Whispering Lake arising out of the shooting death of a child by Aaron Sullivan.

         The Federal Policy limits are $25, 000, 000.00 per occurrence. The Great American Policy limits are $10, 000, 000.00 per occurrence. The Zurich Policy limits are $1, 000, 000.00 per occurrence. The Indian Harbor Policy limits are $1, 000, 000.00 per occurrence.

         On May 1, 2007, Yarco and Whispering Lake entered into a Management Agreement for a term of one (1) year, which was automatically renewed for successive additional terms of (1) year each. Whispering Lake (Owner) and Yarco (Managing Agent) entered into a Management Agreement that included an Indemnity clause and provided in part, as follows:

10. Indemnity
(a) Except for fraud, willful misconduct or gross negligence on the part of the Managing Agent, the Owner shall hold and save the Managing Agent (and Managing Agent's directors, officers, employees, shareholders, partners and affiliates) free and harmless from any claim, cause, proceeding, or suit arising out of, or in connection with any actions by the Managing Agent in accordance with this Agreement or acting under the express or implied direction of the Owner. Subject to the same exceptions, the Owner shall reimburse the Managing Agent, upon demand, for all costs and expenses (including reasonable attorney's fees) and for any monies which the Managing Agent is required to pay in connection therewith or shall, if requested in writing by Managing Agent, defend promptly and diligently, at the sole expense of the Owner, any claim, action or proceeding against the Managing Agent which arises out of, or in connection with, the foregoing. . .
Insurance
(a) The Owner will inform the Managing Agent as to the types and amounts of insurance to be carried with respect to the Development and its operation, and the Owner will cause such insurance to placed and kept in effect at all times. The Managing Agent shall pay insurance premiums out of the Project Operating Account, and all insurance premiums will be treated as a Development expense….

         Yarco maintained the Indian Harbor Policy as a CGL and the Great American Policy as an Excess Policy (“Whispering Lakes Insurance Line”). Yarco also maintained the Zurich policy as a CGL and the Federal Policy as an Excess Policy (“Yarco Insurance Line”).

         Michele DeMoss, mother of the B. L. (“Decedent”) sued Aaron Sullivan in a lawsuit styled Michelle DeMoss v. Aaron Sullivan, Case No. 1116-CV31736 in the Circuit Court of Jackson County, Missouri (the “Underlying Litigation or Underlying Lawsuit”). A Second Amended Petition for Damages was filed on April 2, 2014. 21. In the Second Amended Petition, DeMoss alleged that on July 4, 2011, Aaron Sullivan was a pool monitor employed by Yarco at Whispering Lake. It further alleges that Sullivan and some friends fired shots from the apartment complex across a lake into a wooded area. It was alleged that one of these shots struck Decedent, an 11-year old child, resulting in her death.

         DeMoss brought claims, among others, against Yarco and Sullivan for Negligence, Negligent failure to supervise and/or provide appropriate security, Negligent hiring of a pool monitor and her own claim for emotional distress.

         During the course of the case, a dispute arose among Federal, Indian Harbor, Zurich and Great American over the amount of each carrier's obligation and the order in which each insurance policy was triggered by virtue of both the terms of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.