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AMCO Insurance Co. v. N.O.

United States District Court, W.D. Missouri, Western Division

November 9, 2016

AMCO INSURANCE COMPANY, Plaintiff,
v.
N.O., by and through her natural mother and general guardian ASHLEY O'NEILL, COREY FRISBEE, LEEANN HUTCHISON, GENIE INDUSTRIES, INC., TERRY FLETCHER, Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

          GREG KAYS, CHIEF JUDGE.

         This declaratory judgment action concerns insurance coverage for a wrongful death lawsuit currently pending in the Circuit Court of Clay County, Missouri ("Underlying Lawsuit").[1] The lawsuit stems from a workplace accident that caused the death of Colton Frisbee ("Decedent"). In that lawsuit, N.O., Decedent's daughter, Corey Frisbee, Decedent's father, and Leeann Hutchison, Decedent's mother (collectively "Underlying Claimants"), sued Terry Fletcher ("Fletcher") and Genie Industries, Inc. for negligence and in strict product liability. At the time of the accident Decedent and Fletcher worked for Myron's Precise Paint Systems, Inc. ("Myron's").

         Plaintiff AMCO Insurance Company ("AMCO"), Myron's insurer, filed suit in this Court seeking a declaration that it has no duty to defend or indemnify Fletcher in the Underlying Lawsuit. AMCO names as defendants N.O., Frisbee, Hutchinson, Fletcher, and Genie Industries, Inc.

         Now before the Court is AMCO's motion for summary judgment (Doc. 41). AMCO moves for an order declaring it owes no duty to defend or indemnify Fletcher based on the provisions of four insurance policies it issued to Myron's. Defendants failed to respond to this motion. For the reasons set forth below, the Court holds AMCO owes no duty to defend or indemnify Fletcher in the Underlying Lawsuit. The motion is GRANTED.

         Summary Judgment Standard

         A district court may grant a motion for summary judgment if all the information before the court demonstrates "there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The movant bears the initial responsibility of informing the court of the basis for its motion, and it must identify those portions of the record which demonstrate the absence of a genuine issue of material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011). If the movant does so, then the nonmovant must respond by submitting evidence demonstrating that there is a genuine issue for trial. Id. The court views any factual disputes in the light most favorable to the nonmoving party. Id. "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Ricci v. DeStefano, 557 U.S 557, 585 (2009).

         When the adverse party does not respond to a motion for summary judgment, the court may consider the facts as undisputed and grant summary judgment if the movant is entitled to it. Fed.R.Civ.P. 56(e). Thus, even if a motion for summary judgment stands unopposed, a court must still determine that the moving party is entitled to judgment as a matter of law. Interstate Power Co. v. Kansas City Power & Light, 992 F.2d 804, 807 (8th Cir. 1993).

         Applicable Law

         Missouri law governs this diversity action. Under Missouri law, "the interpretation of an insurance contract is generally a question of law, particularly in reference to the question of coverage." D.R. Sherry Constr., Ltd. v. Am. Family Mut. Ins. Co., 316 S.W.3d 899, 902 (Mo. 2010). And under Missouri rules of construction, the language in an insurance contract is given its plain meaning. Shahan v. Shahan, 988 S.W.2d 529, 535 (Mo. 1997).

         Undisputed Facts

         For purposes of resolving this summary judgment motion, the Court finds the relevant undisputed facts to be as follows. The Court deems Defendants to have admitted these facts because they failed to respond to this motion.

         A. The Underlying Lawsuit

         On March 12, 2015, Fletcher and Decedent, both employees of Myron's, were operating a scissor lift in the parking lot of a building they were painting as part of a work assignment. While Decedent was operating the scissor lift, it became unsteady. Decedent jumped from the lift's elevated platform and landed on a truck, and the lift fell on Decedent, killing him.

         On September 24, 2015, Underlying Claimants sued Fletcher for negligence in the death of Decedent. Underlying Claimants allege that Fletcher acted negligently by either selecting the indoor scissor lift for outside use, or, in the alternative, by failing to keep a careful lookout to warn Decedent of obstructions on the driving surface. On January 22, 2016, AMCO filed this declaratory judgment action seeking a determination that it owed no duty to defend or indemnify Fletcher.[2] On August 31, 2016, the Court ordered ...


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