United States District Court, W.D. Missouri, Western Division
Fernando J. Gaitan, Jr. United States District Judge
before the Court is Plaintiff's Motion for Summary
Judgment (Doc. No. 56).
American Service Insurance Company (“ASI”) filed
the present declaratory judgment action on January 24, 2016,
seeking a declaration that it owes no duty to defendant First
Class Medical Transportation, Inc., n/k/a/ Express Medical
Transportation, Inc. (“First Class”) with respect
to the claims presented by TZ, a minor, or to indemnify First
Class for its liability, if any, to TZ, a minor, resulting
from the shooting death of Michel Ziade, committed by Willie
Parker on July 28, 2015. Plaintiff argues that the relevant
insurance policy contains an Exclusion for Assault or Battery
which unambiguously excludes coverage for the shooting death
of Mr. Ziade.
April 21, 2017, plaintiff moved for summary judgment. When
defendants did not timely respond to the motion for summary
judgment, the Court ordered them to show cause on or before
May 23, 2017, why summary judgment should not be granted for
the reasons stated by plaintiff. On May 22 and May 23, 2017,
defendants TZ and First Class respectively filed responses to
the Court's Order to Show Cause. Defendant TZ indicated
he cannot oppose the motion for summary judgment consistent
with the requirements of Fed.R.Civ.P. 11(b). See
Doc. No. 60. Similarly, defendant First Class indicated that
it cannot oppose plaintiff's motion for summary judgment
consistent with the requirements of Fed.R.Civ.P. 11(b).
See Doc. No. 61. Accordingly, the Court will
consider below whether to grant the unopposed motion for
ASI is an insurance company which provided a policy of
insurance to defendant First Class. Defendant First Class is
a medical transportation company, whose business is to
provide non-emergency medical transportation services.
Kristen Ziade is the sole owner of the business. Ms. Ziade is
also the mother of defendant TZ, who is seven years old. Ms.
Ziade was married to Michel Ziade (the decedent). Together,
they started Defendant First Class, with Michel Ziade being
employed as a manager of the company, with his duties
including maintenance of vehicles, hiring and firing drivers,
marketing and obtaining new clients. Defendant First Class is
operated primarily based out of Ms. Ziade's home, and
employs approximately 25 people. One of the employees is
Mindy Willis, who works in the office performing
administrative tasks, and dispatching.
Parker was employed by Defendant First Class as a driver. Ms.
Ziade knew Mr. Parker from a prior employer. She contacted
him and invited him to interview for the position of driver
with Defendant First Class. Michel interviewed Mr. Parker.
Following the interview, Ms. Ziade performed a background
check on Willie Parker. Three checks were made including
criminal background, driving record, and sexual offenses, and
he cleared all of those checks. Michel checked Mr.
Parker's references and gave him a driving test. His
references checked out and he passed the driving test. He was
then employed by First Class as a driver. While employed as a
driver by Defendant First Class, Mr. Parker was supervised by
both Michel and Kristen Ziade.
Ziade identified deposition exhibit 2 as the Plaintiff's
policy issued to Defendant First Class. Ms. Ziade testified
that the policy was endorsed to remove the Sexual and/or
Physical Abuse Liability Coverage Form, before the death of
Michel Ziade. She and Michel made this change because First
Class had stopped doing business with Logisticare, a Medicaid
transportation company in Missouri, which required this
coverage. Ms. Ziade instructed her assistant Mindy Willis to
cancel or remove this coverage. Via e-mail correspondence
dated May 12, 2015, Mindy Willis requested the removal of the
Sexual and/or Physical Abuse Liability Coverage Form. The
actual policy endorsement appears at the second, third and
fourth pages of Exhibit B-2. It states that the endorsement
is effective May 8, 2015. It states that the following
form(s) have been deleted: GL 00 01 01/09 Sexual and/or
Physical Abuse Liability Coverage Form. It states that the
following form(s) have been added: CG 21 46 07/98 Abuse Or
Molestation Exclusion. It further states that all other terms
and conditions of the policy remain the same.
Ziade testified that Willie Parker had been employed by
Defendant First Class for about two years prior to the
shooting. About one month before the shooting, Mr. Parker
asked Michel to loan him some money. Mr. Parker asked for $3,
000, and Michel decided to loan him $1, 500. They planned to
deduct $200 per week from his paycheck until the loan was
repaid. About two weeks before the shooting, Mr. Parker
started acting strange. When customers would get into the van
and ask his name, he would say his name was God or he would
say his name was Driver. He started loading wheelchair-bound
patients into the van backwards, facing the rear instead of
facing forward. Michel spoke to Mr. Parker, and told him to
load the customers properly and to give his real name.
28, 2015, Willie Parker shot Michel at the Kansas University
Medical Center. It was a coincidence that they met at the
K.U. Medical Center. Mr. Parker was arrested approximately
one week after the shooting. Ms. Ziade testified that the
investigating detective informed her that the motive for the
shooting was that Mr. Parker felt disrespected by Mr. Ziade,
so he killed him. Mr. Parker has been charged with the crime
and found competent to stand trial; his trial is set for July
Ziade testified that an investigation into the shooting was
conducted on behalf of Defendant First Class. The drivers
were all brought into a room and interviewed. Ms. Ziade
testified that attorney Ben Schmidt was representing her, and
she further testified that attorney Ben Schmidt was working
with attorneys Edward Williams and Gregory Eufinger.
certified copy of ASI policy number GL-0240000043-01 issued
to First Class appears in the docket as exhibit
“B” to ASI's Complaint for Declaratory
Judgment. (Doc. No. 1-2, filed 1/24/16, page 1 of 66). The
policy was issued by Integrated Insurance Agency located in
Missouri, and delivered to First Class at its mailing address
located in Missouri. The policy period is October 21, 2014 to
October 21, 2015. The policy provides Commercial General
Liability Coverage, subject to all of its terms, conditions,
limitations, definitions and exclusions. The Schedule of
Forms and Endorsements lists the various forms and
endorsements which were part of the policy as originally
issued. Among the listed forms and endorsements are the
CG 00 01 04/13 Commercial General Liability Coverage Form
GL 00 04 06/13 Exclusion - Assault Or Battery
GL 00 01 01/09 Sexual and/or Physical Abuse Liability
policy also includes Endorsement number 1, effective May 8,
2015. Endorsement number 1 states as follows:
The following forms(s) have been deleted: GL 00 01 01/09,
Sexual and/or Physical Abuse Liability Coverage Form.
The following form(s) have been added: CG 21 46 07/98, Abuse
Or Molestation Exclusion.
All other terms and conditions remain the same.
endorsement shows that this policy change resulted in a
premium credit to First Class of $1, 092.00. The insuring