United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE
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
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") 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).
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.
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).
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.
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
MOTION FOR SUMMARY JUDGMENT
Standard of Review
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.
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.
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)).
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").
Nick Avouris is not an "insured" under ...