Barnes v. McQueen et al, No. 2:2014cv02636 - Document 137 (E.D. La. 2016)
Court Description: ORDER AND REASONS denying 114 Motion to Dismiss for Failure to State a Claim. Signed by Judge Susie Morgan on 7/13/16. (cg)
Download PDF
<![CDATA[
Barnes v. McQueen et al Doc. 137 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A J OSH U A BARN ES, Plain tiff CIVIL ACTION VERSU S N O. 14 -2 6 3 6 KEITH MCQU EEN , ET AL., D e fe n d an ts SECTION : “E” ( 1) ORD ER AN D REAS ON S Before the Court is a m otion to dism iss filed by Defendant Southern Fidelity Insurance Com pany. 1 BACKGROU N D Plaintiff J oshua Barnes (“Barnes”) filed this action under 42 U.S.C. § 1983 and Louisiana state law on Novem ber 19, 20 14, against Defendants Keith McQueen (“McQueen”), Nicholas Knight (“Knight”), Rockwell McClellan (“McClellan”), Keith Bowm an (“Bowm an”), and the City of Slidell (“City”). 2 On J anuary 25, 20 16, Barnes filed a Secon d Supplem ental and Am en ded Com plaint nam ing Southern Fidelity Insurance Com pany (“SFIC”), McQueen’s hom eowner’s insurer, as a defendant. 3 On March 7, 20 16, the Court ruled on m otions to dism iss filed by McQueen, Knight, McClellan, Bowm an, and the City. 4 The Court set forth the factual background of this m atter in its orders on Defendants’ m otions to dism iss and adopts the factual background set forth in those orders. 5 1 R. Doc. 114. R. Doc. 1. The Slidell Police Departm ent was dism issed as a party on Novem ber 6, 20 15. See R. Doc. 77. 3 R. Doc. 90 at 3. 4 R. Docs. 110 , 111 (Orders); R. Docs. 97, 99 (Motions to dism iss). 5 See R. Docs. 110 , 111. 2 1 Dockets.Justia.com On March 14, 20 16, SFIC filed a m otion to dism iss for failure to state a claim upon which relief can be granted, arguing the policy issued to McQueen excludes coverage for the dam ages claim ed by Barnes. 6 McQueen and Barnes filed oppositions to SFIC’s m otion on March 29, 20 16. 7 Barnes contends that SFIC’s policy provides coverage for his claim s against McQueen. McQueen argues Barnes’ claim s are covered by the policy and that, as a result, he is entitled to a defense. SFIC filed a reply in support of its m otion on April 6, 20 16. 8 STAN D ARD OF LAW When deciding a m otion to dism iss, the Court accepts all well-pleaded facts as true and views those facts in the light m ost favorable to the plaintiff. 9 The Court m ay consider only the pleadings, the docum ents attached to or incorporated by reference in the plaintiff’s com plaint, the facts of which judicial notice m ay be taken, m atters of public record, 10 and docum ents attached to a m otion to dism iss “when the docum ents are referred to in the pleadings and are central to a plaintiff’s claim s.”11 If the Court accepts m aterials outside of the pleadings that do not fit within these param eters, the Court m ust treat the Rule 12(b)(6) m otion as a m otion for sum m ary judgm ent pursuant to Rule 56. 12 For the com plaint to survive a m otion to dism iss, the facts taken as true m ust state a claim that is plausible on its face. 13 A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant 6 R. Doc. 114. R. Doc. 126 (McQueen’s opposition ); R. Doc. 128 (Barnes’ opposition ). 8 R. Doc. 131. 9 W hitley v. Hanna, 726 F.3d 631, 637 (5th Cir. 20 13), cert. denied, 134 S. Ct. 1935, 188 (20 14). 10 See U.S. ex rel. W illard v. H um ana Health Plan of Texas Inc., 336 F.3d 375, 379 (5th Cir. 20 0 3); Lovelace v. Softw are Spectrum Inc., 78 F.3d 10 15, 10 17– 18 (5th Cir. 1996); Baker v . Putn al, 75 F.3d 190 , 196 (5th Cir. 1996). 11 Brand Coupon N etw ork, L.L.C. v . Catalina Marketing Corp., 748 F.3d 631, 635 (5th Cir. 20 14). 12 F ED . R. CIV. P. 12(d). 13 Brand, 748 F.3d at 637– 38 . 7 2 is liable for the m isconduct alleged.”14 “The plausibility standard is not akin to a probability requirem ent, but it asks for m ore than a sheer possibility that a defendant has acted unlawfully.”15 A com plaint is insufficient if it contains “only labels and conclusions, or a form ulaic recitation of the elem ents of a cause of action.”16 The Court cannot grant a m otion to dism iss under Rule 12(b)(6) “unless the plaintiff would not be entitled to relief under any set of facts that he could prove consistent with the com plaint.”17 AN ALYSIS Barnes asserts § 1983 claim s against McQueen for false arrest and excessive force and state-law claim s against McQueen for false arrest, excessive force, and assault and battery. 18 SFIC issued hom eowner’s insurance to McQueen, an d Barnes alleges that SFIC’s policy provides coverage for Barnes’ claim s against McQueen. 19 A. Coverage SFIC m oves to dism iss Barn es’ com plaint because, SFIC argues, the hom eowner’s insurance policy issued to McQueen precludes coverage for the claim s on which Barnes seeks dam ages. SFIC issued a policy of hom eowner’s insurance to McQueen and his wife with effective dates of April 18, 20 13, to April 18, 20 14. 20 The policy provides a $ 30 0 ,0 0 0 lim it 14 Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9). Culbertson v . Ly kos, 790 F.3d 60 8 , 616 (5th Cir. 20 15) (citation om itted) (internal quotation m arks om itted). 16 W hitley , 726 F.3d at 638 (citation om itted) (internal quotation m arks om itted). 17 Johnson v. Johnson, 385 F.3d 50 3, 529 (5th Cir. 20 0 4). 18 Barnes also asserted a § 1983 claim for conspiracy and state-law claim s for intentional infliction of em otional distress, in vasion of privacy, m alicious prosecution, intentional m isrepresentation, and defam ation, but the Court dism issed those claim s with prejudice in its Order an d Reasons on McQueen’s m otion to dism iss. See R. Doc. 111. 19 See R. Doc. 90 . 20 R. Doc. 114-5 at 1. The Court m ay consider the insuran ce policy when decidin g this m otion to dism iss. In re Katrina Canal Breaches Litig., 495 F.3d 191, 20 5 (5th Cir. 20 0 7) (“Generally, in decidin g a m otion to dism iss for failure to state a claim , if m atters outside the pleading are presented to and not excluded by the court, the m otion shall be treated as one for sum m ary judgm ent. In this case, that would norm ally include the insurance contracts, since those docum ents were not attached to the com plaints. But because the 15 3 of liability for personal liability and a $ 1,0 0 0 lim it for m edical paym ents. 21 The policy provides the following exclusion for personal liability and m edical paym ents to others: 1. Exp e cte d Or In te n d e d In ju ry “Bodily injury” or “property dam age” which is expected or inten ded by the “insured” even if the resulting “bodily injury” or “property dam age”: a. Is of a different kind, quality or degree than initially expected or intended; or b. Is sustained by a different person, entity, real or personal property, than initially expected or intended. However, this Exclusion . . . does not apply to “bodily injury” resulting from the use of reasonable force by the “insured” to protect persons or property[.] 22 SFIC argues this exclusion clearly and unam biguously precludes coverage of Barnes’ claim s against McQueen. 23 The Court finds, and no party disputes, 24 that the exclusion is clear an d unam biguous. 25 Rather, the issue before the Court is whether the exclusion as written unam biguously precludes coverage of Barnes’ claim s against McQueen. Under Louisiana law, excessive force claim s generally “fall under the duty/ risk analysis for negligence claim s.”26 To prevail under that analysis, the plaintiff m ust prove “(1) the conduct in question was the cause-in -fact of the resulting harm ; (2) [the] defendant owed a duty of care to plaintiff; (3) the requisite duty was breached by the defendants attached the contracts to their m otions to dism iss, the contracts were referred to in the com plaints, and the contracts are central to the plaintiffs’ claim s, we m ay consider the term s of the contracts in assessing the m otions to dism iss.” (citation om itted) (internal quotation m arks om itted)). 21 R. Doc. 114-5 at 1. 22 Id. at 36. 23 R. Doc. 114-1. 24 See R. Docs. 126, 128. 25 See, e.g., King v . Gallow ay , 20 0 1-1358 (La. App. 4 Cir. 9/ 11/ 0 2), 828 So. 2d 49, w rit denied, 20 0 2-2598 (La. 11/ 27/ 0 2), 831 So. 2d 281, and w rit denied, 20 0 2-2510 (La. 11/ 27/ 0 2), 831 So. 2d 283. 26 Harvey v. City of Eunice Police Dep’t, 20 10 -1228 (La. App. 3 Cir. 4/ 6/ 11), 62 So. 3d 290 , 292– 93 (citin g Stroik v. Ponseti, 699 So. 2d 10 72 (La. 1997)). 4 defendant; [and] (4) the risk of harm was within the scope of protection afforded by the duty breached.”27 As the Louisiana Suprem e Court has explain ed: The use of force by law enforcem ent officers m ust be tested by the ‘reasonable force’ standard . . . . Whether the force used is reasonable depends upon the totality of the facts and circum stances in each case. A court m ust evaluate the officers’ actions against those of ordinary, prudent, and reasonable m en placed in the sam e position as the officers and with the sam e knowledge as the officers. 28 Clearly, then, a plaintiff need not establish a defendant’s actions were intentional to prevail on a claim for excessive force under Louisiana law. Indeed, the question is “whether the officers’ actions are objectively reasonable in light of the facts and circum stances confronting them , without regard to their underlying intent or m otivation.”29 The sam e is true under federal law. In Graham v. Connor, the Suprem e Court of the United States explained that “the ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circum stances confronting them , without regard to their underlying inten t or m otivation.”30 “An officer’s evil intentions will not m ake a Fourth Am endm ent violation out of an objectively reasonable use of force; nor will an officer’s good intentions m ake an objectively unreasonable use of force constitutional.”31 Federal an d state claim s of excessive force are analyzed under a negligence standard. In the second am ended com plaint, Barnes seeks dam ages against McQueen for excessive force based on the unreasonablen ess of his actions, a claim clearly based on 27 Id. (quotin g Stroik, 699 So. 2d at 10 77). Ky le v. City of N ew Orlean s, 353 So. 2d 969, 973 (La. 1977). 29 Penn v. St. Tam m any Par. Sheriff’s Office, 20 0 2-0 893 (La. App. 1 Cir. 4/ 2/ 0 3), 843 So. 2d 1157, 1162 (Guidy, J ., concurrin g). 30 Graham v. Connor, 490 U.S. 386, 397 (U.S. 1989). See also Reese v. Anderson, 926 F.2d 494, 50 0 (5th Cir. 1991). 31 Graham , 490 U.S. at 397. 28 5 negligence under Louisiana Civil Code art. 2315. 32 An intentional-act exclusion does not preclude coverage of n egligence claim s. In support of SFIC’s m otion to dism iss, SFIC relies on King v. Gallow ay and Fontenot v. Duplechine. 33 Both cases, however, are distinguishable from this case. In both King and Fontenot, the tortfeasor-defendant adm itted that he intentionally caused the injuries for which the plaintiff in each case sought dam ages. 34 Moreover, the Louisiana appellate court in King decided whether the intentional-act exclusion contained in a hom eowner’s insurance policy unam biguously precluded coverage in the context of a m otion for sum m ary judgm ent. 35 The Louisiana appellate court in Fontenot determ ined whether the intentional-act exclusion applied after the com pletion of a bench trial. 36 The coverage issue is before this Court, however, on a m otion to dism iss, and the Court’s analysis is lim ited to the allegations of the com plaint. Barnes asserts an excessive force claim against McQueen based on negligence. Because the Court m ust accept Barnes’ allegations as true, SFIC has failed to establish that the policy unambiguously precludes coverage for Barnes’ excessive force claim against McQueen. 37 B. Duty to Provide a Defense McQueen argues that because Barnes has asserted claim s against him that are not unam biguously excluded under the SFIC policy, SFIC has a duty to defend McQueen in 32 See R. Doc. 90 at ¶ 35. King, 828 So. 2d 49; Fontenot v. Duplechine, 20 0 4-424 (La. App. 3 Cir. 12/ 8/ 0 4), 891 So. 2d 41. 34 See King, 8 28 So. 2d at 53; Fontenot, 891 So. 2d at 46. 35 King, 828 So. 2d at 50 . 36 Fontenot, 891 So. 2d at 44. 37 See Martco Ltd. P’ship v . W ellons, Inc., 588 F.3d 864, 872 (5th Cir. 20 0 9). 33 6 this suit. 38 It is clear that if there is “even a possibility of liability under the policy,” the insurer has a duty to defend the insured. 39 Under Louisiana law, an insurance policy is a contract and should be construed using the general rules of interpretation of contracts set forth in the Louisiana Civil Code. 40 Louisiana courts apply the “eight-corners rule” to determ ine whether a liability insurer has the duty to defend a civil action against its insured; courts look to the “four corners” of the plaintiff’s petition in the civil action and the “four corners” of the insurance policy to determ ine whether the insurer owes its insured a duty to defend. 41 One Louisian a court explained as follows: Under [the “eight-corners”] analysis, the factual allegations of the plaintiff’s petition m ust be liberally interpreted to determ ine whether they set forth grounds which raise even the possibility of liability under the policy. In other words, the test is not whether the allegations unam biguously assert coverage, but rather whether they do not unam biguously exclude coverage. Sim ilarly, even though a plaintiff’s petition m ay allege num erous claim s for which coverage is excluded under an insurer’s policy, a duty to defend m ay nonetheless exist if there is at least a single allegation in the petition under which coverage is not unam biguously excluded. 42 Factual inquiries beyond the petition for dam ages and the relevant insurance policy are prohibited with respect to the duty to defend. 43 The insurer has a duty to defend unless the allegations in the petition for dam ages, as applied to the policy, unam biguously preclude coverage. 44 The Court has held that the SFIC policy issued to McQueen does not unam biguously preclude coverage of Barnes’ excessive force claim against McQueen. 38 R. Doc. 126. Steptore v. Masco Const. Co., 93-20 64 (La. 8/ 18/ 94), 643 So. 2d 1213, 1218 (explainin g that the duty to defend “arises when ever the pleadings against the in sured disclose even a possibility of liability under the policy”). See also United N at’l Ins. Co. v. Paul and Mar’s Inc., No. 10 -799, 20 10 WL 2690 615, at *2 (E.D. La. J uly 11, 20 11). 40 Sher v. Lafay ette Ins. Co., 20 0 7-2441 (La. 4/ 8/ 0 8), 988 So. 2d 186, 192, on reh’g in part (J uly 7, 20 0 8). 41 Mossy Motors, Inc. v. Cam eras Am ., 20 0 4-0 726 (La. App. 4 Cir. 3/ 2/ 0 5), 898 So. 2d 60 2, 60 6, w rit denied, 20 0 5-1181 (La. 12/ 9/ 0 5), 916 So. 2d 10 57. 42 Id. (citations om itted). 43 Martco, 58 8 F.3d at 872. 44 Id. 39 7 “Once a com plaint states one claim within the policy’s coverage, the insurer has a duty to accept defense of the entire lawsuit, even though other claim s in the com plaint fall outside the policy’s coverage.”45 The duty to defend “arises when ever the pleadings against the insured disclose even a possibility of liability under the policy.”46 Because the Court finds there is at least one claim for which coverage is not unam biguously excluded under the SFIC policy, SFIC has a duty to defend McQueen. 47 The insurer is obligated to provide a defense even if “the allegations of the petition m ay ultim ately turn out to be incorrect or untrue.”48 A liability insurer’s duty to defend and the scope of its coverage are separate and distinct issues. 49 An insurer’s duty to defen d is broader than its obligation to indem nify for dam age claim s. 50 “[W]hereas the duty to defend is based upon the allegations in the pleadings, the duty to indem nify is triggered by the actual facts that establish liability in the underlying lawsuit.”51 “When uncontroverted facts preclude the possibility of a duty to indem nify, the duty to defend ceases and the duty to indem nify is n egated.”52 CON CLU SION Because SFIC has not established that the intentional-act exclusion in McQueen’s hom eowner’s insurance policy unam biguously precludes coverage; 45 Treadw ay v. Vaughn, 633 So. 2d 626, 628 (La. Ct. App. 1993), w rit denied, 635 So. 2d 233 (La. 1994). Steptore, 643 So. 2d at 1218. See also United N at’l Ins. Co., 20 10 WL 2690 615, at *2. 47 See Mossy , 898 So. 2d at 60 6 (“[E]ven though a plaintiff’s petition m ay allege num erous claim s for which coverage is excluded under an insurer’s policy, a duty to defend m ay nonetheless exist if there is at least a single allegation in the petition under which coverage is not unam biguously excluded.”). 48 Vaughn v. Franklin, 20 0 0 -0 291 (La. App. 1 Cir. 3/ 28/ 0 1), 785 So. 2d 79, 84. 49 Mossy , 898 So. 2d at 60 6. 50 Henly v. Phillips Abita Lum ber Co., 20 0 6-1856 (La. App. 1 Cir. 10 / 3/ 0 7), 971 So. 2d 110 4, 110 9. 51 See Colum bia Cas. Co. v . Georgia & Florida RailN et, Inc., 542 F.3d 10 6, 110 – 11 (5th Cir. 20 0 8 ) (internal quotation m arks om itted). 52 Maldonado v. Kiew it Louisiana Co., 20 13-0 756 (La. App. 1 Cir. 3/ 24/ 14), 146 So. 3d 210 , 219, reh’g denied (Apr. 17, 20 14). 46 8 IT IS ORD ERED that SFIC’s m otion to dism iss is D EN IED . 53 N e w Orle an s , Lo u is ian a, th is 13 th d ay o f Ju ly, 2 0 16 . _____ _____________ ____________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 53 Accordingly, SFIC has a duty to defend McQueen in this action . Whether SFIC has a duty to indem nify McQueen is an issue that is not yet ripe for the Court’s consideration . See Colum bia, 542 F.3d at 110 – 11 (“[W]hereas the duty to defend is based upon the allegations in the pleadings, the duty to indem nify is triggered by the actual facts that establish liability in the underlyin g lawsuit.” (internal quotation m arks om itted)). 9
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
