Security Co.’s Shooting Claims Not Covered, 10th Circ. Says
Oklahoma City OK Nov 22 2017 An event security company’s liability policy does not cover underlying claims following a deadly shooting by an off-duty police officer outside a concert, the Tenth Circuit ruled Monday, citing clear exclusions.
Event Security LLC is not covered by its Essex Insurance Co. policy for the underlying suit against off-duty Oklahoma City police officer Paul Galyon, who was moonlighting for Event Security, the appeals court said.
Brian Simms Jr. was sleeping in a friend’s car outside the Chief Keef concert on July 11, 2013, when Galyon and his partner shined flashlights into the car, thought they saw a gun on Simms, and Galyon shot Simms 12 times, according to Simms’ mother, Charlesetta Redd. Twenty-four-year-old Simms died in the car, according to the underlying suit.
The Essex liability policy excludes battery, and thus does not cover Security for that suit, the panel found.
“Security and Redd seek coverage for Security under a liability insurance policy issued by Essex, ” the panel said. “The liability policy, however, excludes coverage for claims of assault or battery … Also, the policy establishes that Essex has no duty to defend under the liability policy “against any ‘suit’ seeking damages for ‘bodily injury’ … to which this insurance [policy] does not apply.”
The Tenth Circuit noted that Event Security attempted to get around exclusion language by suggesting “that the shooting was an accident — not a battery. For a civil battery, Oklahoma Uniform Civil Jury Instruction No. 19.6 requires that a defendant intend to make harmful or offensive contact with the plaintiff, and does make that contact. When Galyon fired his gun, he intended to shoot Simms,” the panel said.
Liability has not yet been determined in Redd’s underlying suit, but Redd took part in the insurance fight as a measure to attempt to ensure that coverage will be available if necessary.
The text in the insurance policy reads: “The coverage under this policy does not apply to ‘bodily injury’ … arising out of assault and/or battery, or out of any act or omission in connection with the prevention or suppression of such acts … Nor does this insurance apply with respect to any charges or allegations of negligent hiring, training, placement or supervision.”
The insurance suit was filed in November 2016. Redd’s underlying suit is also in the Western District of Oklahoma, where this appeal originated.
Another off-duty officer accompanying Galyon, Antonio Escobar, did not fire his OKCPD-issued gun at all, according to filings.
Redd’s lawyer Jacob Diesselhorst of Maples Nix & Diesselhorst PLLC said Monday, “I think it is unfortunate that our appellate and trial courts are so quick to let an insurance company off when their insured … is sued for its negligence.”
Representatives for the other parties were not immediately available for comment.
U.S. Circuit Judges Paul Kelly Jr., Gregory Phillips and Carolyn McHugh sat on the panel for the Tenth Circuit.
Event Security LLC and Redd are represented by David Batton of Law Office of David J. Batton. Charlesetta Redd is represented by Jacob Diesselhorst, April Eberle and Nicole Snapp-Holloway of Maples Nix & Diesselhorst and Stanley Monroe of Monroe & Associates.
Essex Insurance Co. is represented by Richard Olmstead of Kutak Rock LLP.
The case is Event Security LLC et al. v. Essex Insurance Co., case number 17-6073, in the U.S. Court of Appeals for the Tenth Circuit.
