United States District Court, W.D. Louisiana, Monroe Division
ERIE MOORE, JR., ET AL.
LaSALLE CORRECTIONS, INC., ET AL.
L. HAYES MAG. JUDGE.
A. DOUGHTY UNITED STATES DISTRICT JUDGE.
before the Court is a Motion for Summary Judgment on
Insurance Policy Exhaustion filed by Defendant the Princeton
Excess and Surplus Lines Insurance Company
(“PESLIC”) [Doc. No. 194]. PESLIC contends that
Plaintiffs are not entitled to maintain any direct action
claims against PESLIC on the grounds that the policy limits
of the Retained Limit Policy issued to Defendant LaSalle
Management Company (“LaSalle”) have been
exhausted, and, as such, there is no coverage available for
the claims of Plaintiffs in this lawsuit. Therefore, PESLIC
seeks judgment as a matter of law dismissing Plaintiffs'
direct action claims against it, with prejudice.
have filed a Response to Motion for Summary Judgment [Doc.
No. 205] stating that they are unable to deny or admit any
Uncontested Statement of Material Fact set forth by PESLIC,
that they cannot contest any issue of law presented by the
Motion for Summary Judgment, and that they are unable to
oppose the Motion for Summary Judgment on the merits based
upon the contentions and proof presented by PESLIC.
PROCEDURAL AND FACTUAL BACKGROUND
a wrongful death and survival action arising out of the death
of a prisoner while in detention at Richwood Correctional
Center (“Richwood”), a prison located in Monroe
Louisiana. According to the Third Amended Complaint of
Plaintiffs [Doc. No. 140], Erie Moore, Sr., was detained at
Richwood Correctional Center and being held in a cell with
another inmate, Vernon White, on October 13, 2015. While in
the cell, White and Moore were apparently involved in an
altercation in which Moore seriously injured White. It is
alleged that Moore was beaten by guards as they attempted to
extract him from the cell after the altercation. White died
later that evening.
was taken to the hospital after the beating and died on
November 14, 2015, while in the hospital. Plaintiffs, the
children and heirs of Mr. Moore, have filed suit against
numerous individuals and entities, including LaSalle;
Richwood; Richwood's Warden Ray Hanson and Assistant
Warden Aultman; and various other alleged employees of
Richwood and LaSalle. They assert various claims pursuant to
42 U.S.C. §§ 1983, 1985, and 1988 and under
Louisiana state law. As to PESLIC, Plaintiffs have alleged
that PESLIC issued policy number N1-A3-RL0000073-04 effective
June 30, 2015, to June 30, 2016, and that the policy provides
coverage for the liability of Richwood, LaSalle, and their
LAW AND ANALYSIS
fact that the motion is unopposed does not necessarily mean
PESLIC should prevail on the merits. “A motion for
summary judgment cannot be granted simply because there is no
opposition . . . The movant has the burden of establishing
the absence of a genuine issue of material fact and, unless
he has done so, the court may not grant the motion,
regardless of whether any response was filed.”
Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 362
(5th Cir. 1995)(citing Hibernia Nat'l Bank v.
Administracion Cent. Sociedad Anonima, 776 F.2d 1277,
1279 (5th Cir. 1985)). Failure to file an opposition and
statement of contested material facts, however, requires the
Court to deem statements of uncontested material facts
admitted for purposes of the motion.
Rule, LR 56.2.
plaintiff's right of direct action against a liability
insurer is subject to “the terms and limits of the
policy.” La. Rev. Stat. § 22:1269. Plaintiffs have
named PESLIC as a Defendant in this lawsuit based on the
allegation that the PESLIC Policy provides coverage for the
damages sought by Plaintiffs in connection with the death of
Mr. Moore. However, according to the undisputed material
facts, PESLIC Policy's $5, 000, 000 Excess Limit of
Liability has previously been exhausted by payments for
“Ultimate Net Loss, ” as that term is defined by
the PESLIC Policy. Thus, there is no coverage available under
the Policy, and Plaintiffs are not entitled to maintain a
direct action against PESLIC.
claims of Plaintiffs arise out of Erie Moore's
incarceration at a correctional facility. These claims
implicate the Policy's Law Enforcement coverage extension
under the Policy's General Liability Coverage Part.
Otherwise, this loss would not be covered under any other
coverage part, as coverage for any liability arising out of
law enforcement activities is otherwise excluded by the
Policy's Exclusions applicable to all coverage parts.
PESLIC Policy's General Liability Coverage Part and Law
Enforcement coverage extension provide that PESLIC will
indemnify an insured for its “Ultimate Net Loss.”
[Doc. No. 194-3]. The definition of “Ultimate Net
Loss” includes both judgments/settlements and defense
costs. [Id.] The Policy's aggregate limits for
the General Liability Coverage Part, including the Law
Enforcement coverage extension, are $5, 000, 000.
[Id.]. The Policy makes clear that the aggregate
limits in the Policy's Declarations are the most PESLIC
will pay for “Ultimate Net Loss.” [Id.].
with the Policy's terms, PESLIC has previously
indemnified LaSalle a total of $5, 000, 000 for
“Ultimate Net Loss” under the Policy's
General Liability Coverage Part. PESLIC has indemnified
LaSalle for settlements and defense costs in connection with
six different claims under Policy No. N1-A3-RL-0000073-04 at
issue in this lawsuit, including some defense costs in this
lawsuit. [Doc. No. 194-4, Affidavit of Michael ...