United States District Court, W.D. Missouri, Western Division
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY
KAYS, CHIEF JUDGE.
declaratory judgment action concerns insurance coverage for a
wrongful death lawsuit currently pending in the Circuit Court
of Clay County, Missouri ("Underlying
Lawsuit"). 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").
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.
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
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).
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).
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).
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.
The Underlying Lawsuit
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.
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. On August 31, 2016, the Court ordered