Tennessee Risk Management Trust vs. Lori Ann Yancey, et al
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IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
November 5, 2009 Session
TENNESSEE RISK MANAGEMENT TRUST v.
LORI ANN YANCEY, ET AL.
Appeal from the Circuit Court for Scott County
No. 7352
John McAfee, Judge
No. E2009-00677-COA-R3-CV - FILED JANUARY 19, 2010
Tennessee Risk Management Trust (“TRMT”) sued Lori Ann Yancey (“Yancey”), next of
kin and representative of the estate of Hubert Dean Yancey, and Marty Carson (“Carson”)
seeking a declaratory judgment with regard to governmental liability insurance coverage
provided by TRMT to Carson’s employer, Scott County. TRMT filed a motion for summary
judgment. The Trial Court granted TRMT’s motion for summary judgment holding, inter
alia, that the policy at issue does not provide coverage for Carson’s intentional shooting and
killing of another Scott County employee. Yancey appeals to this Court. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
Case Remanded
D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., and J OHN W. M CC LARTY, J.J., joined.
Howard R. Ellis, Oneida, Tennessee, for the appellant, Lori Ann Yancey, next of kin and
representative of the estate of Hubert Dean Yancey.
John D. Schwalb, Franklin, Tennessee, for the appellee, Tennessee Risk Management Trust.
OPINION
Background
In November of 2003, Scott County deputy sheriff Marty Carson shot and
killed his partner, Hubert Dean Yancey (“Officer Yancey”), during a raid on a meth lab. As
a result of Officer Yancey’s death, a wrongful death suit was filed in the United States
District Court for the Eastern District of Tennessee. TRMT, which provided governmental
insurance coverage to Scott County, provided a defense in that case to Carson subject to a
reservation of rights. After a trial, the jury returned a verdict in favor of the plaintiff 1 ,
Yancey, in the amount of $5 million finding that Carson had violated Officer Yancey’s civil
rights.
After the federal trial, TRMT filed this declaratory judgment action in the
Circuit Court for Scott County seeking a judgment that there was no coverage under the
insurance policy issued by TRMT for Carson’s shooting and killing Officer Yancey, that
TRMT was not obligated to pay Yancey or to indemnify Carson as a result of the judgment
in the federal case, and also that TRMT was not obligated to provide Carson any further
defense in that action. The insurance policy at issue provides, in pertinent part:
GENERAL COVERAGE DEFINITIONS
1.
MEMBER means not only the NAMED MEMBER as accepted by
TSB-RMT for coverage, but also includes any past, present or future
officials, MEMBERS of boards or commissions, trustees, directors,
officers, partners, volunteers, student teachers or employees of the
MEMBER while acting within the scope of their duties as such, and
any person, organization, trustee or estate to whom the MEMBER is
obligated by virtue of a written contract or agreement to provide
coverage such as is offered by this coverage, but only in respect of
operations by or on behalf of the MEMBER.
***
1
Lori Ann Yancey was one of several plaintiffs involved in the federal lawsuit. Ms. Yancey is the
only one of those plaintiffs involved in the instant suit. For ease of readability only, we refer to Ms. Yancey
in this Opinion as the plaintiff in the federal action with the understanding that she was, in fact, one of
several plaintiffs in that case.
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3.
BODILY INJURY means physical injury (including death) to any
person, and any mental anguish or shock, sickness, disease, disability
or death associated with or arising from such physical injury.
***
8.
LAW ENFORCEMENT ACTIVITIES means the activities of any
MEMBER while acting as a law enforcement official, officer,
auxiliary officer, employee, or volunteer of a law enforcement agency
or department of the MEMBER.
LAW ENFORCEMENT
ACTIVITIES do not include EMPLOYMENT PRACTICE
VIOLATIONS.
***
SECTION II COMPREHENSIVE GENERAL LIABILITY
SECTION II INSURING AGREEMENTS
A.
COMPREHENSIVE GENERAL LIABILITY: The TSB-RMT
agrees, subject to the coverage limitations, terms and conditions, to pay
on behalf of the MEMBER, all sums which the MEMBER is legally
obligated to pay by reason of the liability imposed upon the MEMBER
by law or assumed by the MEMBER under contract or agreement, for
damage direct or consequential, and expenses, all as more fully defined
by the term LOSS, on account of PERSONAL INJURY or BODILY
INJURY, suffered or alleged to have been suffered by any person(s) or
organizations(s), and/or PROPERTY DAMAGE or the loss of use
thereof, arising out of any CLAIM from any cause including HOST
L IQ U O R L IA B IL IT Y and/or L I Q U O R L IA B IL IT Y ,
INCIDENTAL MEDICAL MALPRACTICE, or liability arising out
of LAW ENFORCEMENT ACTIVITIES.
***
SECTION II EXCLUSIONS
IN ADDITION TO THE GENERAL EXCLUSIONS OF THIS
COVERAGE, THIS SECTION DOES NOT INSURE AGAINST:
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***
B.
BODILY INJURY, PROPERTY DAMAGE, or PERSONAL
INJURY, which the MEMBER intended or expected; unless resulting
from:
(1)
(2)
(3)
An act alleged to be assault and battery for the purpose of
preventing injury to persons or damage to property;
Corporal punishment (unless providing coverage for corporal
punishment is prohibited by law); or
An act alleged to be assault and battery by a MEMBER
resulting from LAW ENFORCEMENT ACTIVITIES during
the time of arrest or incarceration process, but only as respects
claims against the MEMBER for liability of the MEMBER.
Yancey answered the complaint and filed a counterclaim for declaratory
judgment and damages alleging, among other things, bad faith and violations of the
Tennessee Consumer Protection Act. Yancey also filed a motion for judgment on the
pleadings. After a hearing, the Trial Court denied the motion for judgment on the pleadings.
TRMT filed a motion for summary judgment supported, in part, by a Statement
of Undisputed Material Facts. In her response to the Statement of Undisputed Material Facts,
Yancey admitted that it was undisputed that:
3. At the conclusion of the proof and following argument Judge Varlan
instructed the jury [in the federal trial] on the elements of the claim of a civil
rights violation. As it relates to the issues in this case the charge was as
follows:
In order to prove plaintiff’s claim, the burden is upon the plaintiff to
establish by a preponderance of the evidence each of the following
elements:
First, that the defendant performed acts that operated to deprice
[sic] the plaintiff of one or more of the plaintiff’s federal constitutional
rights, as defined and explained in these instructions, by shooting and
killing Huber [sic] Dean “John John” Yancey.
Second, that defendant then and there acted under color of state
law.
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Third, that defendant’s acts were the proximate cause of
damages sustained by plaintiff.
The first requirement the plaintiff must show is that the
defendant performed acts that operated to deprive the plaintiff of one
or more of the plaintiff’s federally protected rights.
The plaintiff’s first theory, as you have heard, is that the
defendant intended to shoot and kill Hubert Dean “John John” Yancey.
An intentional killing satisfies the first requirement of finding
deprivation of a federally protected right.
The plaintiff’s alternative theory is that Marty Carson acted
maliciously and sadistically when he shot and killed Hubert Dean
“John John” Yancey. Such conduct would also satisfy the first
requirement of finding a deprivation of a federally protected right.
***
4. During deliberations in the federal action the jury submitted a
question regarding the charge and the following discussion took place:
THE COURT: My law clerk has given you the charge or response to
the jury that the Court intends to give. The Court intends to send this
back as an attachment to the question. For the record, again, the
question is, “What is the difference in intentional versus acting
maliciously and sadistically?” The attachment reads as follows:
As to issue one, “Whether the plaintiff Lori Ann Yancey has
proven by a preponderance of the evidence that Marty Carson
intentionally shot and killed Hubert Dean “John John” Yancey,
“intentional” means that a person intends the natural and probable
consequences of acts knowingly done or knowingly omitted.”
As to issue two, “In the alternative whether the plaintiff Lori
Ann Yancey has proven by a preponderance of the evidence that Marty
Carson acted maliciously and sadistically when he shot and killed
Hubert Dean “John John” Yancey, malicious or sadistic behavior
entails unjustifiable intentional conduct undertaken with the direct
purpose of causing harm to the victim.”
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The Court is going to send this back as an attachment to the
question. I have signed it. I have put after the question please see
attached response and then signed it with the time and date.
***
6. Following deliberation, the jury returned a verdict in favor of the
plaintiff, Lori Ann Yancey, against Marty Carson in the amount of $5 million
finding that Carson violated the decedent’s civil rights under the charge of the
court.
(emphasis in original).
Along with her response to the motion for summary judgment, Yancey filed
a copy of a Memorandum Opinion filed in the federal case and a copy of Carson’s deposition
taken in that case.
After a hearing, the Trial Court entered its Order Granting Summary Judgment
and Declaratory Relief granting TRMT summary judgment and holding that the insurance
policy at issue “does not provide coverage to Marty Carson for the judgment rendered in the
matter of of [sic] Yancey et. al. vs. Carson et. al. No. 3:04-CV-00556 a matter previously
pending in the United States District Court for the Eastern District of Tennessee” and that
TRMT was “relieved of any obligation whatsoever to indemnify Carson or pay any judgment
resultling [sic] therefrom.” The Trial Court’s order also dismissed the counter-claims with
prejudice.
Yancey appeals to this Court.
Discussion
Although not stated exactly as such, Yancey raises one issue on appeal:
whether the Trial Court erred in granting summary judgment to TRMT.
Our Supreme Court reiterated the standard of review in summary judgment
cases as follows:
The scope of review of a grant of summary judgment is
well established. Because our inquiry involves a question of
law, no presumption of correctness attaches to the judgment, and
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our task is to review the record to determine whether the
requirements of Rule 56 of the Tennessee Rules of Civil
Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49,
50-51 (Tenn. 1997); Cowden v. Sovran Bank/Cent. S., 816
S.W.2d 741, 744 (Tenn. 1991).
A summary judgment may be granted only when there is
no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Byrd v.
Hall, 847 S.W.2d 208, 214 (Tenn. 1993). The party seeking the
summary judgment has the ultimate burden of persuasion “that
there are no disputed, material facts creating a genuine issue for
trial . . . and that he is entitled to judgment as a matter of law.”
Id. at 215. If that motion is properly supported, the burden to
establish a genuine issue of material fact shifts to the
non-moving party. In order to shift the burden, the movant must
either affirmatively negate an essential element of the
nonmovant’s claim or demonstrate that the nonmoving party
cannot establish an essential element of his case. Id. at 215 n.5;
Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn. 2008).
“[C]onclusory assertion[s]” are not sufficient to shift the burden
to the non-moving party. Byrd, 847 S.W.2d at 215; see also
Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our
state does not apply the federal standard for summary judgment.
The standard established in McCarley v. West Quality Food
Service, 960 S.W.2d 585, 588 (Tenn. 1998), sets out, in the
words of one authority, “a reasonable, predictable summary
judgment jurisprudence for our state.” Judy M. Cornett, The
Legacy of Byrd v. Hall: Gossiping About Summary Judgment
in Tennessee, 69 Tenn. L. Rev. 175, 220 (2001).
Courts must view the evidence and all reasonable
inferences therefrom in the light most favorable to the
non-moving party. Robinson v. Omer, 952 S.W.2d 423, 426
(Tenn. 1997). A grant of summary judgment is appropriate only
when the facts and the reasonable inferences from those facts
would permit a reasonable person to reach only one conclusion.
Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000).
In making that assessment, this Court must discard all
countervailing evidence. Byrd, 847 S.W.2d at 210-11.
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Recently, this Court confirmed these principles in Hannan.
Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009). Issues
involving the scope of coverage of an insurance policy present questions of law, which may
be resolved by summary judgment if the facts are undisputed. Victoria Ins. Co. v. Hawkins,
31 S.W.3d 578, 580 (Tenn. Ct. App. 2000). Here, the material facts are undisputed.
To begin, Yancey asserts on appeal that TRMT “implicitly recognized
ambiguity in its policy” when it provided a defense in the federal trial. We disagree. Yancey
has pointed to no ambiguity in the policy at issue, nor can this Court find any ambiguity after
a careful and thorough review of the policy provisions at issue. An insurer’s decision to
provide a defense subject to a reservation of rights cannot be taken as an admission of
ambiguity in the policy absent any other evidence of ambiguity.
The Trial Court found that the exclusion in the policy for bodily injury which
was intended as contained in Section II part B applies to this case, thereby precluding
coverage. The record reveals that Yancey, who was the plaintiff in the federal trial, prevailed
in that action and successfully proved to the federal court jury that Carson intentionally shot
and killed Officer Yancey thereby violating Officer Yancey’s civil rights. Yancey cannot
now dispute that the actions of Carson were intentional as that was the very basis for
Yancey’s successful claim in the federal court case against Carson. The plain language of
the policy excludes coverage for this intentional bodily injury unless the actions fall within
one of three specified exceptions to the exclusion. Of those exceptions, the first two, i.e.,
for “[a]n act alleged to be assault and battery for the purpose of preventing injury to persons
or damage to property,” and “[c]orporal punishment” clearly do not apply given the facts and
circumstances of this case.
Yancey, however, argues that the third of those exceptions applies, i.e., for
“[a]n act alleged to be assault and battery by a MEMBER resulting from LAW
ENFORCEMENT ACTIVITIES during the time of arrest or incarceration process …,” and
that coverage, therefore, exists in this case. Yancey basically argues that Carson was
engaged in law enforcement activities at the relevant time because a raid upon a meth lab
conducted by officers while on duty and in uniform served the purposes of the employer and
was within the scope of Carson’s duties.
We do not disagree that the raid upon a meth lab was within the scope of
Carson’s duties as an officer. However, that does not mean that any and all of Carson’s
actions committed while the raid was happening automatically fall within the scope of his
duties. Carson clearly stepped outside of the scope of his duties when he intentionally shot
and killed his partner. It cannot be said that the actions of a law enforcement officer who
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intentionally shoots and kills his partner furthers his employer’s purposes. Such an assertion
would be bizarre. Furthermore, it is apparent that the exception to the bodily injury exclusion
that Yancey attempts to rely upon was intended to apply to fact patterns quite different from
the one in the instant case. Officer Yancey was in no way the subject of an arrest or
incarceration. Nor was he the subject of an attempted arrest or incarceration. Under the facts
in this case, particularly the fact that Yancey prevailed in the federal trial only by convincing
a federal court jury that Carson intentionally shot and killed Officer Yancey, exception
number three to the intentional bodily injury exclusion to coverage does not apply.
Yancey also argues that TRMT did not meet its burden of proof because it did
not show “whether Carson was engaged in ‘LAW ENFORCEMENT ACTIVITIES during
the time of arrest … . [sic] process.’” Yancey is mistaken. As discussed above, Carson’s
actions in intentionally shooting and killing his partner, as found by the federal court jury,
were clearly not law enforcement activities as Carson’s intentionally shooting and killing his
partner was not a part of Carson’s activities “as a law enforcement … officer ….” Carson’s
intentionally shooting and killing his partner can in no way be construed as his acting in his
role as a law enforcement officer for Scott County. The fact that his intentionally shooting
and killing his partner happened while a law enforcement activity, the raid, was occurring
does not mean that Carson’s action in intentionally shooting and killing his partner was a part
of any law enforcement activity. TRMT made this showing through the filing of Yancey’s
response to the statement of undisputed material facts wherein Yancey admitted that it was
undisputed that the federal court jury returned a verdict “finding that Carson violated the
decedent’s civil rights under the charge of the court,” which charged the jury with two
possible theories both requiring Carson’s intentional conduct. This argument is without
merit.
Yancey further argues that the policy is illusory and states in her brief on
appeal that “[t]he policy at issue expressly covers ‘LAW ENFORCEMENT ACTIVITIES’
and ‘civil rights’ violations.” However, as discussed above, Carson’s actions in intentionally
shooting and killing his partner do not constitute law enforcement activities. We find
nothing under the facts of this case to lead us to the conclusion that the policy at issue was
illusory. This argument also is without merit.
TRMT made a properly supported motion showing that there are no disputed
issues with regard to the material fact that the injury in this case was intentional, or to any
other material fact. The record shows that none of the three stated exceptions to the
intentional bodily injury exclusion from coverage are applicable in this case. Given all this,
we find no error in the Trial Court’s holding that the policy at issue does not provide
coverage.
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Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
Appellant, Lori Ann Yancey, next of kin and representative of the estate of Hubert Dean
Yancey, and her surety.
_________________________________
D. MICHAEL SWINEY, JUDGE
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