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State Farm Fire and Casualty Co. v. Dado's Cafe, Inc.

United States District Court, E.D. Missouri, Eastern Division

October 23, 2019

DADO'S CAFE, INC., et al., Defendants.



         This matter is before the court on State Farm Fire and Casualty Company's Motion for Summary Judgment (ECF No. 32). This matter is fully briefed and ready for disposition.[1]


         Dado's Cafe, Inc. ("Dado's Cafe") is a Greek restaurant and bar in St. Louis, Missouri. (State Farm Fire and Casualty Company's Statement of Uncontroverted Material Facts in Support of its Motion for Summary Judgment ("PSUMF"), ECF No. 33, ¶l). Three former female employees of Dado's Cafe have filed suit against Dado's Cafe and Nick Avouris (referred to herein as "Defendants")[2] in Missouri State Court: Anna McNamara (Cause No. 1722-CC11658), Elisha Velis (1722-CC11594), and Aimee Duvall (1722-CC11592) (collectively, the "Underlying Plaintiffs"). (PSUMF, ¶2).

         Plaintiff State Farm Fire and Casualty Company ("State Farm") filed this declaratory judgment complaint in this Court related to the underlying lawsuits for sex discrimination and retaliation under the Missouri Human Rights Act (hereinafter "Underlying Lawsuits") filed by the Underlying Plaintiffs against Dado's Cafe and Avouris.

         The Underlying Lawsuits allege certain acts of sexual harassment, sexual assault, sex discrimination, and wrongful termination directed toward the Underlying Plaintiffs by Avouris and Dado's Cafe's cook staff. Specifically, the cook staff would call each of the Underlying Plaintiffs "bitch" and "sexy," and would make other sexual comments towards the women. The cook staff would rub their genitalia against the Underlying Plaintiffs' backsides. Avouris personally made offensive sexual comments and advances and refused to stop after being asked to by the Underlying Plaintiffs. The Underlying Plaintiffs allege that Avouris retaliated against them by removing them from the schedule and/or terminating them after they complained about the unwelcome sexual comments and behavior. The Underlying Plaintiffs assert that they believed the offensive conduct was intentionally committed because they all complained, and the conduct did not cease. (PSUMF, ¶8).

         Under Dado Cafe's Policy with State Farm, the liability limited insuring agreement is as follows:

Coverage L-Business Liability
1. When a Limit of Insurance is shown in the Declarations for Coverage L-Business Liability, we will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury", "property damage" or "personal and advertising injury" to which this insurance applies. We will have the right and duty to defend the insured by counsel of our choice against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury", "property damage" or "personal and advertising injury", to which this insurance does not apply. We may, at our discretion, investigate any "occurrence" or offense and settle any claim or "suit" with or without the insured's consent, for any reason and at any time. ...
2. This insurance applies:
a. To "bodily injury" and "property damage" only if:
(1) The "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory";
(2) The "bodily injury" or "property damage" occurs during the policy period; and (3) ...
(4) To "personal and advertising injury" caused by an offense arising out of your business, but only if the offense was committed in the "coverage territory" during the policy period.

         State Farm seeks a declaration that the Policy does not apply to any and all claims made by the Underlying Defendants against Dado's Cafe and Nick Avouris. Specifically, State Farm asks this Court to declare that State Farm's Policy provides no liability coverage, no duty to defend, and no duty to indemnify Defendants against the allegations in the Underlying Lawsuits.



         A. Standard of Review

         The Court may grant a motion for summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Citrate, Ml U.S. 317, 322 (1986); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011). The substantive law determines which facts are critical and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Only disputes over facts that might affect the outcome will properly preclude summary judgment. Id. Summary judgment is not proper if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.

         A moving party always bears the burden of informing the Court of the basis of its motion. Celotex Corp., 477 U.S. at 323. Once the moving party discharges this burden, the nonmoving party must set forth specific facts demonstrating that there is a dispute as to a genuine issue of material fact, not the "mere existence of some alleged factual dispute." Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 248. The nonmoving party may not rest upon mere allegations or denials of his pleading. Id.

         In passing on a motion for summary judgment, the Court must view the facts in the light most favorable to the nonmoving party, and all justifiable inferences are to be drawn in his favor. Celotex Corp., 477 U.S. at 331. The Court's function is not to weigh the evidence but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. '"Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.'" Torgerson, 643 F.3d at 1042 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).

         B. Procedural Improprieties

         Fed. R. Civ. P. 56(c)(1) provides that "[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Defendants' Response to Plaintiffs Statement of Uncontroverted Material Facts (ECF No. 41), however, does not satisfy Fed.R.Civ.P. 56(c)(1). Defendants do not support any of their denials of State Farm's Statement of Facts with any material from the record. At most, Defendants make a legal argument, which fails to controvert State Farm's statements of fact. See ECF No. 41 at 3 (citing DavidKleis, Inc. v. Superior Court, 37 Cal.App.4th 1035, 1038, 44 Cal.Rptr.2d 181 (1995)). The Court finds that State Farm's Statement of Uncontroverted Material Facts have been deemed admitted by Defendants because they were not properly controverted by Defendants. See Jones v. United Parcel Serv., Inc., 461 F.3d 982, 991 (8th Cir. 2006) (district court properly deemed facts admitted that were not properly controverted); Fed. R Civ. P. 56(e)(2) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may (2) consider the fact undisputed for purposes of the motion").

         C. Discussion

         1. Nick Avouris is not an "insured" under ...

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