American General Life Insurance Company v. Whitaker

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

AMERICAN GENERAL LIFE CIVIL ACTION

INSURANCE COMPANY

NO. 18-4402

VERSUS

SECTION M (3)

JARONET S. WHITAKER

ORDER & REASONS

Before the Court is a motion by plaintiff American General Life Insurance Company

(“AGLIC”) for summary judgment seeking a declaration that it properly denied defendant

Jaronet S. Whitaker’s claim for proceeds under the accidental death benefit rider on the policy

insuring the life of her deceased son Armand Jarion Brown.1 Whitaker opposes the motion,2 and

AGLIC filed a reply memorandum in further support of it.3 Having considered the parties’

memoranda, the applicable law, and the record, the Court finds that AGLIC properly denied

Whitaker’s claim because Brown was the aggressor in the incident that led to his death, meaning

that his death was not accidental.

I. BACKGROUND

This case involves an insurer seeking a declaratory judgment that it properly denied

accidental death benefits to the beneficiary of a life insurance policy. In 2012, Whitaker

obtained a life insurance policy and accidental death benefit rider on Brown, and named herself

1 R. Doc. 26.

2 R. Doc. 28. AGLIC’s motion was set for submission on August 29, 2019. R. Doc. 26-14. Pursuant to

Local Rule 7.5 of the United States District Court for the Eastern District of Louisiana, which requires that a

memorandum in opposition to a motion be filed no later than eight days before the noticed submission date,

Whitaker’s opposition was due on August 21, 2019. Whitaker filed her deficient opposition on August 22, 2019,

and remedied the deficiency on August 27, 2019. R. Docs. 27 & 28. AGLIC urges the Court to not consider

Whitaker’s untimely opposition. R. Doc. 31 at 1-2. Although Whitaker was tardy in filing her opposition, AGLIC

was not prejudiced by the late filing because this Court granted AGLIC leave to file a reply memorandum. R. Docs.

30 & 31. Therefore, the Court will consider Whitaker’s opposition.

3 R. Doc. 31.

as the policy owner and beneficiary.4 The accidental death benefit rider provides that AGLIC

would pay Whitaker an extra benefit if Brown’s death was caused by an accident.5 “Accidental

death” is defined in the policy as:

death that (a) resulted directly, and independently of all other causes, including

but not limited to disease or mental infirmity, or medical or surgical treatment

from accidental bodily injury sustained while the Covered Insured’s coverage

under this rider was in force; and (b) occurred within 120 days after the injury.6

The coverage is also subject to the following exclusions:

[AGLIC] will not pay any Accidental Death Benefit if the Covered Insured’s

death is directly caused by accidental bodily injury incurred by the Covered

Insured in an accident where the Covered Insured was operating any type of land,

water, or air vehicle while having a blood alcohol content at or above the level

made illegal by statute for the operation of such a vehicle or if the Covered

Insured’s death is caused or contributed to by:

(a) intentional self-inflicted injury, while sane or insane;

(b) commission of or attempt to commit an assault or felony;

(c) engaging in an illegal occupation;

(d) participation in an insurrection or war, whether declared or not;

(e) an excitant, depressant, hallucinogen, narcotic or other drug, unless taken

as prescribed by a licensed physician; or

(f) flight in or descent from or with any aircraft in which the Covered Insured

was the pilot or a crew member, was giving or receiving training or

instruction or had any duties.7

On January 23, 2017, Brown was shot and killed by a Kenner police officer.8 The events

leading up to Brown’s death were explained by this Court in a prior order:

On the morning of January 23, 2017, at 11:02 a.m., the Kenner Police Department

received a call from Joshua Brown, Jairon Brown’s half-brother. Joshua told the

dispatcher that his half-brother was “swinging a knife” at him when Joshua tried

4 R. Doc. 1 at 2.

5 Id. at 2-3.

6 R. Doc. 26-9 at 28.

7 Id.

8 R. Doc. 1 at 3.

to enter the house in which the brothers resided. Joshua later testified that when

he arrived home, Jairon went to the kitchen, retrieved a knife, and started

“showing” the knife to him. The brothers’ father, Armond Brown, Sr., who lived

in the same house, testified that when Joshua came home, Jairon “had a knife in

his hand[ ] and told Joshua to roll out.”

At least two Kenner police officers arrived at the scene, spoke with Joshua, and

then approached the front door of the residence to attempt to make contact with

Jairon. When these attempts were unsuccessful, the police officers told Joshua

that in order to get help for his brother, he had to obtain an order for protective

custody from the Jefferson Parish coroner. Joshua left the residence with an

officer to sign the necessary paperwork, and the coroner’s office issued the order

for protective custody shortly before 1:30 p.m. The order authorized the police

officers to remove Brown from his home and take him to Ochsner Hospital in

Kenner for an immediate psychiatric examination.

More police officers had arrived at the scene by the time the order was formally

issued. The officers established a secure perimeter around the house and an outer

perimeter on the street to control traffic and bystanders. Officer Ronnie Barger,

the Kenner SWAT team negotiator, first attempted to contact Brown by

telephone. When that proved unsuccessful, Officer Barger used a bullhorn to

attempt contact. Officer Barger asked Brown to leave the residence and told him

that the police wanted to help him.

Members of the Kenner SWAT team then attempted to breach the front door of

the house in order to make visual contact with Brown. When the officers opened

the front door, they observed Brown standing near the door with two knives in his

hands and in a “squatted” or “defensive” stance. Some of the officers described

Brown as having a “thousand-yard” or “blank” stare on his face. The officers

instructed Brown to drop his knives, but he did not comply. The officers then

fired sponge rounds and a Taser at Brown. The sponge rounds hit Brown in the

thigh area but did not incapacitate him. The Taser fire directly hit him, but it

likewise had little effect.

After these attempts to incapacitate Brown, the Kenner Police Department fired

tear gas into the house. Brown exited the front door of the house shortly after the

officers deployed the tear gas. He was holding both knives and wiping his eyes

with his sleeves. A brick wall lines much of the Browns’ front yard. A footpath

extends from the Browns’ front door to a pedestrian gate that opens to the

sidewalk. Officers Romano and Brent Donovan were inside the brick wall in the

front yard when Brown emerged from the house. Both officers were to Brown’s

right and armed with rifles containing live ammunition. Officers Lewis Tusa and

John Cusimano positioned themselves inside the gateway at the end of the

footpath, not protected by the brick wall. Neither officer was armed with lethal

ammunition – Officer Tusa had a Taser gun, and Officer Cusimano had sponge

rounds. There is inconsistent testimony regarding whether the pedestrian gate

was closed in front of Officers Tusa and Cusimano when Brown emerged from

the house. There is also inconsistent testimony regarding whether, if closed and

separating the officers from Brown, the pedestrian gate was locked so that Brown

would have been unable to open it to attack the officers.

Brown, armed with both knives, began to walk down the footpath toward Officers

Tusa and Cusimano, yelling bible verses. Officers Donovan and Romano walked

parallel to Brown alongside the brick wall to Brown’s right. The Kenner police

officers repeatedly ordered Brown to drop his knives, but he refused. Brown

stopped when he was about halfway between the front door and Officers Tusa and

Cusimano. The police officers continued to give him verbal commands to drop

the knives. A short time later, Brown continued down the footpath. When he got

closer to them, Officers Tusa and Cusimano each fired their non-lethal

ammunition. Shortly after they fired, Officer Romano fired multiple lethal

rounds, killing Brown. Officer Romano testified that when he fired his weapon,

Brown’s arms were “near his side with his hands out front,” and both knives were

“vertical in the air.” Officer Romano further stated that Brown was not

attempting to strike Officer Tusa or Cusimano when he fired. Officer Donovan

testified that Brown was “within an arm’s reach” of the pedestrian gate when

Officer Romano fired. Joshua Brown testified that at the time his brother was

shot he was about seven or eight feet from the front gate where Officers Tusa and

Cusimano stood. Cynthia Morell, a neighbor who witnessed the incident, stated

in a sworn affidavit that Brown was “about ten feet from the front gate.”

Photographs taken by the Kenner Crime Scene Technician show that one of

Brown’s knives was a stainless steel serrated kitchen knife with a seven-inch

blade. The other knife was a stainless steel kitchen knife with a five-inch blade.

Brown v. Kenner Police Dep’t, 2018 WL 5251912, at *1-3 (E.D. La. Oct. 22, 2018) (Vance, J.)

(citations omitted) (“civil action no. 17-3445”).

Civil action no. 17-3445 was a suit brought by Brown’s parents and brothers against

Officer Romano and the City of Kenner asserting state law claims for wrongful death, survival,

and intentional infliction of emotional distress, and federal civil rights claims under 42 U.S.C. §

1983. Brown v. Kenner Police Dep’t, 2018 WL 5251912, at *3. The Brown plaintiffs contended

that Brown was wrongfully shot and killed without just cause. Id. On October 22, 2018, this

Court granted defendants’ motion for summary judgment holding that “Officer Romano’s use of

deadly force was not clearly unreasonable because he reasonably feared that Brown posed an

immediate threat to the safety of Officers Tusa and Cusimano.” Id. at *6. To reach this

conclusion, the Court examined the summary judgment evidence in the light most favorable to

the plaintiffs, which led to the following picture of the incident:

Officer Romano arrived at the scene after being notified that Brown had

barricaded himself in his home, that Brown was armed with two knives, and that

Brown was reportedly schizophrenic. Officer Romano was aware that Kenner

police officers had fired non-lethal munitions at Brown, but that those munitions

failed to incapacitate him. Officer Romano then observed Brown, still armed with

two knives, leave his residence and haltingly walk down the footpath towards

Officers Tusa and Cusimano after the Kenner police department deployed tear gas

into his home. When Officer Romano fired his weapon, Brown was ten feet from

Officers Tusa and Cusimano and advancing, armed with two knives, and refusing

to comply with the officers’ repeated commands to drop his weapons. … Officers

Tusa and Cusimano were positioned immediately behind a pedestrian gate that

Officer Romano believed would swing open and not protect the officers. Finally,

Officer Romano testified – and plaintiffs have not clearly refuted with contrary

evidence – that Brown was holding the knives in front of his body with the blades

extended vertically.

Id. at *5 (citations omitted). Further, the Court concluded that there could not be municipal

liability on the part of the City of Kenner in the absence of a constitutional violation, and it

declined to exercise supplemental jurisdiction over the remaining state law claims. Id. at *9-10.

On February 1, 2017, AGLIC received Whitaker’s notice of claim on Brown’s life

insurance policy.9 AGLIC paid the death benefit, but investigated Whitaker’s claim under the

accidental death benefit rider.10 On August 3, 2017, AGLIC informed Whitaker via letter that it

was denying her claim under the accidental death benefit rider because Brown’s death was

caused or contributed to by the commission of, or attempt to commit, an assault or felony.11

AGLIC noted that, although Brown’s death certificate states that the manner of death was

homicide immediately caused by distant range gunshot wounds to the abdomen groin and lateral

hip, the police report revealed that Brown was advancing toward officers while armed with

9 R. Doc. 1 at 4.

10 Id.

11 R. Doc. 1-2 at 1.

knives when the shooting occurred, thus precluding AGLIC’s liability under the accidental death

benefit rider.12

On March 29, 2018, Whitaker’s counsel requested that AGLIC reconsider its decision,

and threatened legal action if AGLIC did not pay the accidental death benefit rider.13 In

response, on April 28, 2018, AGLIC filed this action seeking a declaration that it properly denied

Whitaker’s claim.14

II. PENDING MOTION

AGLIC filed the instant motion for summary judgment arguing that the undisputed

material facts as explained in Brown v. Kenner Police Dep’t, 2018 WL 5251912, at *1-3 (E.D.

La. Oct. 22, 2018) (Vance, J.), prove that it properly denied Whitaker’s claim under the

accidental death benefit rider.15 First, AGLIC contends that Brown’s death was not caused by an

“accident” under Louisiana law because Brown was the aggressor in the confrontation that

culminated in his death.16 Second, AGLIC argues that the criminal acts exclusion applies

because Brown was engaged in an aggravated assault on a peace officer at the time of his

death.17

Whitaker argues that AGLIC’s motion is premature because there are outstanding

discovery issues.18 Whitaker thus contends that the motion should be denied, or a ruling

deferred, until the discovery issues are resolved.19 Further, Whitaker argues that both she and

12 Id.

13 R. Doc. 1-3.

14 R. Doc. 1.

15 R. Doc. 26-1.

16 Id. at 8-11.

17 Id. at 11-13.

18 R. Doc. 28.

19 Id. at 3-5. Rule 56(d) of the Federal Rules of Civil Procedure provides that “[i]f a nonmovant shows by

affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court

may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take

discovery; or (3) issue any other appropriate order.” To obtain relief under Rule 56(d), the party opposing summary

judgment must “set forth a plausible basis for believing that specified facts, susceptible of collection within a

Brown’s father testified in their personal injury suit that Brown was not a danger to anyone at the

time of his death.20

III. LAW & ANALYSIS

A. Summary Judgment Standard

Summary judgment is proper “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 a judgment as a matter of law.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56(c)). “Rule 56(c)

mandates the entry of summary judgment, after adequate time for discovery and upon motion,

against a party who fails to make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which the party will bear the burden of proof at trial.” Id. A

party moving for summary judgment bears the initial burden of demonstrating the basis for

summary judgment and identifying those portions of the record, discovery, and any affidavits

supporting the conclusion that there is no genuine issue of material fact. Id. at 323. If the

moving party meets that burden, then the nonmoving party must use evidence cognizable under

Rule 56 to demonstrate the existence of a genuine issue of material fact. Id. at 324.

A genuine issue of material fact exists if a reasonable jury could return a verdict for the

nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1996). The

substantive law identifies which facts are material. Id. Material facts are not genuinely disputed

when a rational trier of fact could not find for the nonmoving party upon a review of the record

reasonable time frame, probably exist and indicate how the emergent facts, if adduced, will influence the outcome of

the pending summary judgment motion.” Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010) (quotation omitted).

Whitaker fails to include an affidavit or explain in any way exactly what she hopes to obtain from discovery and

how those facts would affect the pending motion. Moreover, considering the thorough explanation in Brown of the

facts surrounding Brown’s death, this Court is skeptical that there are undiscovered facts relevant to the present

motion. Therefore, the Court denies Whitaker’s inadequate Rule 56(d) request.

20 Id. at 1-3.

taken as a whole. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986); Equal Emp’t Opportunity Comm’n v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).

“[U]nsubstantiated assertions,” “conclusory allegations,” and merely colorable factual bases are

insufficient to defeat a motion for summary judgment. See Anderson, 477 U.S. at 249-50;

Hopper v. Frank, 16 F.3d 92, 97 (5th Cir. 1994). In ruling on a summary judgment motion, a

court may not resolve credibility issues or weigh evidence. See Delta & Pine Land Co. v.

Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). Furthermore, a court

must assess the evidence, review the facts, and draw any appropriate inferences based on the

evidence in the light most favorable to the party opposing summary judgment. See Tolan v.

Cotton, 572 U.S. 650, 656 (2014); Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir.

2001). Yet, a court only draws reasonable inferences in favor of the nonmovant “when there is

an actual controversy, that is, when both parties have submitted evidence of contradictory facts.”

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citing Lujan v. Nat’l Wildlife

Fed’n, 497 U.S. 871, 888 (1990)).

After the movant demonstrates the absence of a genuine dispute, the nonmovant must

articulate specific facts and point to supporting, competent evidence that may be presented in a

form admissible at trial. See Lynch Props., Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625

(5th Cir. 1998); Fed. R. Civ. P. 56(c)(1)(A) & (c)(2). Such facts must create more than “some

metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. When the nonmovant

will bear the burden of proof at trial on the dispositive issue, the moving party may simply point

to insufficient admissible evidence to establish an essential element of the nonmovant’s claim in

order to satisfy its summary judgment burden. See Celotex, 477 U.S. at 322-25; Fed. R. Civ. P.

56(c)(B). Unless there is a genuine issue for trial that could support a judgment in favor of the

nonmovant, summary judgment must be granted. See Little, 37 F.3d at 1075-76.

B. Insurance Policy Interpretation

Under Louisiana law, an insurance policy, like any other contract, is construed according

to the general rules of contract interpretation set forth in the Louisiana Civil Code. Cadwallader

v. Allstate Ins. Co., 848 So. 2d 577, 580 (La. 2003) (citations omitted). Contracts are interpreted

to determine “the common intent of the parties.” Id. (citations omitted). “Words and phrases

used in an insurance policy are to be construed using their plain, ordinary and generally

prevailing meaning, unless the words have acquired a technical meaning.” Id. (citations

omitted). An insurance policy “should not be interpreted in an unreasonable or strained manner

under the guise of contractual interpretation to enlarge or to restrict its provisions beyond what is

reasonably contemplated by unambiguous terms or achieve an absurd conclusion.” Id. (citations

omitted). A court cannot exercise “inventive powers to create an ambiguity where none exists or

the making of a new contract when the terms express with sufficient clearness the parties’

intent.” Id. (citations omitted). Thus, clear and unambiguous policy wording that expresses the

parties’ intent is enforced as written. Id.

Ambiguous provisions and “equivocal provisions seeking to narrow an insurer’s

obligation,” on the other hand, are strictly construed against the insurer and in favor of coverage.

Id. (citations omitted). However, the strict construction principle applies only if the ambiguous

policy provision is susceptible of more than one reasonable interpretation. Id. (citations

omitted). “[T]he insurer has the burden of proving the applicability of a coverage exclusion.”

Hampton v. Lincoln Nat’l Life Ins. Co., 445 So. 2d 110, 113 (La. App. 1984). “The

determination of whether a contract is clear or ambiguous is a question of law.” Cadwallader,

848 So. 2d at 580.

C. Accidental Death Benefits

A claimant seeking to recover proceeds from accidental death benefit coverage has the

initial burden of establishing that the insured’s primary cause of death was “accidental.” Dugas

v. Travelers Ins. Co., 785 F.2d 550, 551 (5th Cir. 1986) (citing Johnson v. Nat’l Life & Accident

Ins. Co., 331 So. 2d 87, 88 (La. App. 1976)). Generally, if the “insured’s death was not a natural

death or a suicide[,] the court must then infer that the death was accidental.” Id. (citing Willis v.

Willis, 287 So. 2d 642, 645 (La. App. 1973)). If an accidental death is proved, “the burden shifts

to the insurer to show by ‘a preponderance of the evidence that such insurer is nevertheless not

liable by reason of a special defense or an exclusionary clause of the policy in question.’” Id.

(quoting Willis, 287 So. 2d at 645).

One special defense available to the insurer is that the death was not accidental within the

meaning of the policy. Id. Under Louisiana law, it is well established that an insured’s death is

not accidental if he is killed in a situation in which he was the aggressor. Id. at 551-52 (citing

Cutitto v. Metro. Life Ins. Co., 168 So. 761, 762 (La. 1936) (“[it] is well established that where

the insured is intentionally injured by another, and the injury is not the result of misconduct or an

assault by the insured, but is unforeseen, in so far as he is concerned, the injury is accidental

within the meaning of an accident policy”); Barham v. State Life Ins. Co. of Ind., 135 So. 730

(La. App. 1931) (holding that insured’s death in a fight, while not explicitly excluded from

coverage, was not “accidental” within double indemnity provision of policy as insured was the

aggressor in the fight); Thom v. Metro. Life Ins. Co., 2 So. 2d 269 (La. App. 1941) (holding that

the insured death was not “accidental” where he was an aggressor who assaulted his opponent

with a deadly weapon)). In Bowman v. Inter-Ocean Ins. Co., 241 So. 2d 579 (La. App. 1970),

the court held that the insurer properly denied benefits under an accidental death policy when the

insured was the aggressor in a shooting that caused his death, because “[t]he law is clear that if

an insured is an aggressor and his actions precipitate his death there can be no recovery under the

policy.” Id. at 580; see also Lemay v. Life Ins. Co. of Sw., 688 F. Supp. 1118, 1119 (W.D. La.

1988) (accord). The insurer must prove by a preponderance of the evidence that the insured was

the aggressor. Lemay, 688 F. Supp. at 1120 (citing Dugas, 785 F. 2d at 551; Fed. R. Evid. 302).

In this case, the summary judgment evidence here and the undisputed record in civil

action no. 17-3445 establish that Brown was the aggressor in the situation that led to his death.

Brown’s brother called the police after Brown threatened him with a knife. Brown was non-

compliant with the officers’ directives when they were trying to take Brown into protective

custody for an immediate psychiatric examination pursuant to the Jefferson Parish coroner’s

order. Immediately preceding the shooting, Brown continued to threaten officers with knives

after tear gas and non-lethal weapons failed to subdue him. When Officer Romano fired his

weapon, Brown was ten feet from Officers Tusa and Cusimano and advancing, armed with two

knives, and refusing to comply with the officers’ repeated commands to drop his weapons.

Under these circumstances, Brown was clearly the aggressor. Whitaker has not presented any

competent summary judgment evidence to refute these facts. Thus, Brown’s death was not

“accidental” within the meaning of the policy, and AGLIC properly denied Whitaker’s claim

under the accidental death benefit rider.

D. Criminal Activity Exclusion

AGLIC also contends that, even if Brown’s death were accidental, it properly denied

benefits under the criminal acts exclusion because Brown was arguably committing the offenses

of assault and felony aggravated assault of a peace officer when he was killed.21 “Assault is an

attempt to commit a battery, or the intentional placing of another in reasonable apprehension of

receiving a battery.” La. R.S. 14:36. “Aggravated assault upon a peace officer is an assault

21 R. Doc. 26-1 at 11-14.

committed upon a peace officer who is acting in the course and scope of his duties.” La. R.S.

14:37.2. “Aggravated assault is an assault committed with a dangerous weapon.” La. R.S.

14:37.

Again, the undisputed record establishes that Brown was advancing on Officers Tusa and

Cusimano with knives at the time he was shot. These actions arguably constitute assault and

aggravated assault of a peace officer. Whitaker argues that Brown was not charged with a

crime.22 However, the state’s filing criminal charges is not a prerequisite for the exclusion to

apply because “the state cannot prosecute a dead man.” James v. La. Laborers Health & Welfare

Fund, 29 F.3d 1029, 1034 (5th Cir. 1994) (quoting Berg v. Bd. of Trustees, Local 705 Int’l Bro.

of Teamsters Health & Welfare Fund, 725 F.2d 68, 70 (7th Cir. 1984)). Therefore, AGLIC also

properly denied Whitaker’s claim for accidental death benefits pursuant to the criminal acts

exclusion.

IV. CONCLUSION

Accordingly, for the foregoing reasons,

IT IS ORDERED that AGLIC’s motion for summary judgment (R. Doc. 26) is

GRANTED.

New Orleans, Louisiana, this 25th day of September, 2019.

________________________________

BARRY W. ASHE

UNITED STATES DISTRICT JUDGE

22 R. Doc. 28 at 1.