United States District Court, W.D. Missouri, Western Division
ORDER DENYING DEFENDANT'S MOTION TO DISMISS AND
GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
KAYS, CHIEF JUDGE UNITED STATES DISTRICT COURT
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 Hutchinson, Decedent's mother
(collectively “Underlying Plaintiffs”), sued
Terry Fletcher (“Fletcher”), Genie Industries,
Inc., and Myron Cowley (“Cowley”) (collectively
“Underlying Defendants”) for the wrongful death
of Colton Frisbee. At the time of the accident, Decedent and
Fletcher worked for Myron's Precise Paint Systems, Inc.
(“Myron's Precise Paint Systems”), owned by
before the Court is AMCO's motion for summary judgment
(Doc. 42) and N.O, Frisbee, and Hutchison's motion to
dismiss, or, in the alternative, to stay proceedings (Doc.
49). For the following reasons, the motion to dismiss is
DENIED and the motion for summary judgment is GRANTED.
Underlying Lawsuit arose out of an accident on March 12,
2015, where Fletcher and Decedent, both employees of
Myron's Precise Paint Systems, were operating an indoor
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.
AMCO Insurance Company (“AMCO”) issued several
policies to Myron's Precise Paint Systems, a Commercial
General Liability Policy (“CGL Policy”), a
Business Auto Policy (“Auto Policy”), a Standard
Workers Compensation and Employers Liability Policy
(“ELI Policy”), and a Commercial Umbrella
Liability Insurance Policy (“Excess Policy”).
September 24, 2015, Underlying Plaintiffs filed a wrongful
death lawsuit in Clay County, Missouri against Underlying
Defendants. On November 3, 2017, the Underlying Plaintiffs
amended their petition asserting a single claim of negligence
against Cowley, in his capacity as president, sole owner, and
director of Myron's Precise Paint Systems. The petition
alleges Cowley generally controlled and managed the business
and property, including directing the Decedent in all aspects
of his work, and was responsible for servicing and
maintaining the subject scissor lift. ACMO denied it has a
duty to defend Cowley under the insurance policies it issued
to Myron's Precise Paint Systems, but agreed to defend
Cowley in the Underlying Suit under a reservation of rights.
August 25, 2017, AMCO filed this lawsuit seeking a
declaration that none of the four insurance policies it
issued required it to defend or indemnify Cowley in the
Underlying Lawsuit. On December 14, 2017, the Court granted
summary judgment in AMCO's favor that no coverage existed
under the Auto Policy. Because the state court in the
Underlying Lawsuit had granted the Underlying Plaintiff's
motion to amend their petition, the Court denied without
prejudice AMCO's motion for summary judgment as to the
other policies. Then on January 12, 2018, AMCO filed its
second motion summary judgment motion arguing no coverage
exists under the other insurance policies.
February 26, 2018, Defendants filed a motion to dismiss this
case arguing allowing both this lawsuit and the Underlying
Lawsuit could expose the parties to inconsistent judgments.
Since this motion was filed, the Underlying Plaintiffs and
Cowley entered into a settlement agreement pursuant to Mo.
Rev. Stat. § 537.065 in the Underlying Lawsuit. Under
the settlement agreement, the Underlying Lawsuit will proceed
to a bench trial on all issues of liability and damages.
Further, the Underlying Plaintiffs agree to limit their
execution rights to the coverage available under the AMCO
policies. On March 28, 2018, the state court in the
Underlying Lawsuit granted AMCO's motion to intervene and
AMCO subsequently filed an answer to the second amended
considering the merits of AMCO's motion for summary
judgment, the Court considers whether it should exercise its
discretion to stay or dismiss this action.
The motion to dismiss, or, in the alternative, stay
proceedings, is denied.
arguing the Court should dismiss this case, Defendants argue
there are parallel state proceedings encompassing the same
issues as in this case.
courts have a “virtually unflagging obligation”
to entertain cases within their jurisdiction. Colorado
River Water Conservation Dist. v. United States, 424
U.S. 800, 817 (1976). A case seeking only a declaratory
judgment provides federal courts with some
discretion to dismiss. E.g., Wilton v. Seven Falls
Co., 515 U.S. 277 (1955); Brillhart v. Excess Ins.
Co., 316 U.S. 491 (1942). However, Brillhart
and Wilton apply in full force only if there is a
parallel state court proceeding. Royal Indemnity Co. v.
Apex Oil Co., 511 F.3d 788, 793 (8th Cir. 2008);
Scottsdale Ins. Co. v. Detco Indus., Inc., 426 F.3d
994, 998-99 ...