United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
matter is before the Court on plaintiff's motion for
default judgment, pursuant to Rule 55(b)(2), Fed. R. Civ. P.
Safeco Insurance Company of America issued a policy of
homeowners' insurance to Randall Tramp for the period of
December 1, 2014, to December 1, 2015. See Policy
[Doc. # 19-1]. On October 13, 2016, Tramp pleaded guilty to
molesting his daughter S.M.S. for several years, including
during the policy's coverage period. See Guilty
Plea Petition [Doc. # 19-5]; see also Superseding
Indictment [Doc. # 19-4]. In November 2016, S.M.S. and her
mother, defendant Sharon Smith, filed a civil action in state
court against Tramp, asserting claims for negligence,
intentional and negligent infliction of emotional distress,
false imprisonment, and assault and battery and child abuse.
Petition [Doc. # 19-2]. In April 2017, Smith and S.M.S. made
a demand for coverage for their damages under the
homeowners' insurance policy. Demand [Doc. # 19-7].
Plaintiff filed this action seeking a declaration that the
homeowners' policy does not afford coverage for the
damages sought by S.M.S. and Smith in the state-court action.
Defendants have not filed answers or entered their
appearances, and default has been entered against them.
Fed.R.Civ.P. 55(a), a court may enter a default judgment for
failure “to plead or otherwise defend.” When the
Clerk of the Court has entered default judgment against a
defendant, the “allegations of the complaint except as
to the amount of damages are taken as true.”
Mueller v. Jones, 2009 WL 500837, at *1 n. 2 (E.D.
Mo. Feb 27, 2009). Further, ‘[a] party seeking damages
under a default judgment must . . . prove its rights to such
damages with affidavits or other supporting
documentation.” Joe Hand Promotions, Inc. v.
Kickers Corner of the Americas, Inc., 2014 WL 805731, at
*2 (E.D. Mo. Feb. 28, 2014) (citations omitted). See
Fed.R.Civ.P. 8(b)(6) (stating that “[a]n allegation -
other than one relating to the amount of damages - is
admitted if a responsive pleading is required and the
allegation is not denied.”).
diversity action, the Court is bound by the decisions of the
Missouri Supreme Court regarding issues of substantive state
law. Owners Ins. Co. v. Hughes, 712 F.3d 392, 393
(8th Cir. 2013). Decisions by the Missouri Court of Appeals
may be used as “an indication of how the Missouri
Supreme Court may rule, ” but the Court is “not
bound to follow these decisions.” Id.
construing the terms of an insurance policy, Missouri courts
apply “the meaning an ordinary person of average
understanding would attach if purchasing insurance, and
resolve ambiguities in favor of the insured.”
Dutton v. Am. Family Mut. Ins. Co., 454 S.W.3d 319,
322 (Mo. 2015). But, “[i]f the policy's language is
unambiguous, it must be enforced as written.”
Floyd-Tunnell v. Shelter Mut. Ins. Co., 439 S.W.3d
215, 217 (Mo. 2014). Ambiguities arise when there is
“duplicity, indistinctness, or uncertainty in the
meaning of the language in the policy. Language is ambiguous
if it is reasonably open to different constructions.”
Burns v. Smith, 303 S.W.3d 505, 509 (Mo. 2010)
(citation omitted). “Definitions, exclusions,
conditions and endorsements are necessary provisions in
insurance policies. If they are clear and unambiguous within
the context of the policy as a whole, they are
enforceable.” Todd v. Missouri United Sch. Ins.
Council, 223 S.W.3d 156, 163 (Mo. 2007) (en banc).
Finally, “[a] court may not create an ambiguity in
order to distort the language of an unambiguous policy, or,
in order to enforce a particular construction which it might
feel is more appropriate.” Rodriguez v. Gen. Acc.
Ins. Co. of Am., 808 S.W.2d 379, 382 (Mo. 1991) (en
party seeking to establish coverage under an insurance policy
has the burden of proving that his or her claim is within the
coverage afforded by the policy. M.A.B. v. Nicely,
911 S.W.2d 313, 315 (Mo.Ct.App. 1995); see also Manner v.
Schiermeier, 393 S.W.3d 58, 63 (Mo. 2013) (burden is on
insured to show coverage is provided). The homeowners'
policy issued to Tramp provides liability coverage “for
damages because of bodily injury . . . caused by an
occurrence to which this coverage applies.”
Section II - Liability Coverages, Coverage E - Personal
Liability [Doc. # 19-1 at p. 34] (emphasis in original). As
relevant here, the policy defines “occurrence” as
“an accident” which results in “bodily
injury.” Policy Definitions [Doc. # 19-1 at 45].
“Sexual Molestation cannot be, by its nature, an
‘Occurrence' under the policy because it is not
‘an accident.'” D.M.A. v.
Hungerford, 488 S.W.3d 683, 688 (Mo.Ct.App. 2016),
transfer denied (Apr. 12, 2016). In addition,
several exclusions in the policy clearly exclude coverage for
damages arising from defendant Tramp's conduct, including
exclusions 1.a (excluding coverage for bodily injury which is
the foreseeable result of the insured's intentional act);
1.b (excluding coverage for bodily injury arising from the
insured's violation of criminal law); and 1.k (excluding
coverage for bodily injury arising from physical or mental
abuse, sexual molestation or sexual harassment). Liability
Losses We Do Not Cover, ¶¶ 1.a, 1.b, 1.k [Doc. #
19-1 at 34-37].
on the unambiguous provisions of the homeowners'
insurance policy issued by plaintiff to defendant Randall
Tramp, there is no insurance coverage for the claims of
defendant Smith and her daughter S.M.S. against plaintiffs
insured, defendant Randall Tramp.
IT IS HEREBY ORDERED that plaintiffs motion
for default judgment [Doc. # 34] is granted
separate judgment in accordance with this Memorandum and
Order shall be entered this same date.