O'Donnell v. Century Surety Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

LORYN O’DONNELL CIVIL ACTION

VERSUS NO. 21-2290

CENTURY SURETY CO., ET AL SECTION: "B"(4)

ORDER & REASONS

Oral argument on defendant Century Surety Company’s opposed

motion to dismiss (Rec. Doc. 11) was received on Wednesday, April

20, 2022. Accordingly, after consideration of the arguments from

all parties’ counsel, the record, and applicable law,

IT IS HEREBY ORDERED that defendant’s motion to dismiss (Rec.

Doc. 11) is GRANTED in part, dismissing all assault and battery

claims against it; and DENIED in part without prejudice, retaining

plaintiff’s claims for intentional infliction of emotional

distress, false imprisonment, and wrongful eviction.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff Loryn O’Donnell (“O’Donnell” or “Plaintiff”)) filed

the instant suit seeking damages against defendants Lions Inn Bed

& Breakfast (“Lions Inn”), Benjamin Walley (“Walley”), and Century

Surety Company (“Century”) as the insurer of Lions Inn

(collectively “defendants”). Rec. Doc. 1 (Complaint). The Court

accepts the following factual allegations as true for purposes of

this motion to dismiss.

On December 21, 2020, plaintiff visited New Orleans on

business to meet with a client, Khater Salomon (“Salomon”). Id.

For the meeting, she booked a room at the Lions Inn, located at

2517 Chartres Street. Id. On the afternoon of December 22, 2020,

plaintiff was sitting in the garden patio of the Lions Inn when

she was approached by the owner of the hotel, Edward Patin

(“Patin”). He was accompanied by someone plaintiff believed to be

an employee of the Lions Inn, Benjamin Walley (“Walley”). Id. The

three of them talked together until plaintiff left to prepare for

a business dinner with Salomon. Rec. Doc. 1.

At the business dinner, plaintiff noticed that Walley was

also in attendance. She later learned that Salomon was also

considering hiring Walley for a position related to plaintiff’s

project. Id. Because of this, Walley also attended the business

meeting. Id. After dinner, Salomon drove plaintiff and Walley back

to the Lions Inn, dropping them off at approximately 11:30 p.m.

Id. At that time, plaintiff decided to return to her room, change

clothes in order to go to a local bar, and celebrate her success

in signing Salomon as a client. Id. After changing clothes,

plaintiff walked out onto the garden patio where Walley was

observed. Rec. Doc. 1. Walley informed plaintiff that she should

not walk alone in the French Quarter as it was not safe. Plaintiff

told Walley that she would rather walk alone and began walking

away towards the bar. Id. Walley followed her. Id.

Upon arriving at the bar, plaintiff and Walley noticed that

the establishment was closed. Rec. Doc. 1. Plaintiff then asked

Walley if there was a place nearby where she could buy a drink and

head back to the hotel. Id. Walley told plaintiff that there was

a store nearby, and he would walk with her to the store. Id.

Plaintiff declined Walley’s offer and told him that she would order

an Uber car and go alone. Id. Before she could do so, Walley called

an Uber and informed plaintiff it was en route. Id. Upon its

arrival, both plaintiff and Walley got in the Uber and headed to

the store. Rec. Doc. 1. While at the store, plaintiff purchased a

bottle of vodka and orange juice. Id. Both plaintiff and Walley

then got back into the Uber and returned to the Lions Inn. Id.

Upon arriving at the hotel, she asked Walley if he could open

the hotel’s hot tub area before leaving for the night, to which

Walley agreed. Id. Plaintiff then went to her room to change into

her bathing suit. Id. Upon returning to the patio, plaintiff

noticed that Walley was still there and that he had also set out

multiple red drinking cups for the vodka and orange juice. Rec.

Doc. 1. At this point, plaintiff asserts that she began to feel

uncomfortable about Walley “refusing to leave her alone.” Id.

Plaintiff states that she did not want Walley to watch her take

her clothes off, so she asked him to turn the patio lights off

“before he leaves.” Id. Once Walley left to turn off the lights,

plaintiff got in the hot tub. Id. Walley, however, returned to the

patio and mixed himself a drink. Id. Walley then undressed in front

of plaintiff and joined her in the hot tub. Rec. Doc. 1.

After Walley entered the hot tub, he used crude and vulgar

words to make sexual advances toward plaintiff. Id. When plaintiff

declined Walley’s advances, she alleges that Walley flew into a

“fit of volcanic rage,” violently slamming his hands onto the

water’s surface. Id. Walley then allegedly stormed out of the hot

tub and began cursing, pacing madly, and hurling insults at

plaintiff. Id. Walley then picked up plaintiff’s phone and hurled

it in the hot tub. Rec. Doc. 1. Plaintiff attempted to get out of

the hot tub, but asserts that Walley attacked her, grabbed the top

of her shoulders, and pushed her body under the water. Id.

Plaintiff was able to forcibly move to the other end of the hot

tub. Rec. Doc. 1. Following Walley’s alleged attack, plaintiff

tried to get out of the hot tub, but Walley grabbed her, attempting

to force her back into the water. Id. Plaintiff eventually escaped

Walley’s grasp, grabbed her belongings, and headed toward the

building entrance that led to her room. Id.

Upon reaching the doorway of her building, she locked it with

Walley still outside on the patio. Id. During this time, plaintiff

claims Walley began shouting threats at her and demanding that she

stay in her room until sunrise. Id. Walley also allegedly yelled

to plaintiff that if she did not leave the hotel the moment the

sun came up, he would go inside and drag her from her room. Rec.

Doc. 1. Plaintiff ran to her hotel room, locked the door, and

barricaded the door with furniture from her room. Id. Shortly

after, plaintiff asserts that she heard Walley enter the building

and start pacing in front of her door. Id.

Over the next several hours, plaintiff packed her things,

dried out her phone, ordered a Lyft, and waited for it to arrive.

Id. Once plaintiff received notification that her Lyft had arrived,

she exited her room towards the hotel lobby. Id. At that moment,

she noticed her path was blocked by Walley, who was lying directly

next to the staircase she needed to descend. Rec. Doc. 1. With

her luggage and purse in tow, she attempted to go around Walley,

but he swiped his arms at her legs, hitting them to catch her. Id.

However, Walley was unsuccessful in his attempt and plaintiff was

able to escape to her Lyft safely. Id.

On December 13, 2021, plaintiff filed this action invoking

federal diversity jurisdiction. Rec. Doc. 1. She claimed that

defendant Walley is liable to her for tortious acts in violation

of La. Civil code article 2315. Id. Because Walley was an employee

of the Lions Inn, she claims defendant Lions Inn is vicariously

liable for the acts of Walley. Id. Additionally, plaintiff asserted

that the Lions Inn negligently failed to use reasonable care in

screening, hiring, training, supervising, and retaining its

employees, including Walley. Id. Plaintiff also claims the Lions

Inn failed to provide her adequate security and failed to perform

its duty of protection. Id. Concerning defendant Century,

plaintiff asserted that at all times pertinent to her allegations,

an insurance policy provided by Century to the Lions Inn was in

full effect and inures to her benefit. Rec. Doc. 1.

Subsequently, on January 14, 2022, defendant Century filed

the instant motion to dismiss. Rec. Doc. 11. According to Century,

the policy it issued to Lions Inn contains a direct assault and

battery exclusion, which bars recovery for an alleged assault and

battery, and also bars recovery for “any other act or omission,

either leading up to, during, or following any alleged assault and

battery” on Lions Inn’s premise. Id. Century also attached the

insurance policy as an exhibit to its motion to dismiss. Id.

On January 25, 2022, plaintiff filed an opposition to

Century’s motion, arguing that the policy’s assault and battery

exclusion does not bar all of plaintiff’s claims because she

correctly asserted several other claims that are entirely removed

from the assault and battery, such as: (1) intentional infliction

of emotional distress; (2) false imprisonment; and (3) wrongful

eviction. Rec. Doc. 12. On March 7, 2022, defendant Lions Inn filed

an opposition to Century’s motion to dismiss, asserting two

distinct arguments: (1) plaintiff’s allegation that the insurance

policy covers the alleged incident must be accepted as true; and

(2) the Court cannot pierce the pleadings to consider Century’s

attached insurance policy without converting Century’s motion to

one for summary judgment. Rec. Doc. 19.

On March 15, 2022, Century filed a reply supporting its motion

to dismiss. Rec. Doc. 23.

II. LAW AND ANALYSIS

A. 12(b)(6) Standard

To survive a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), a plaintiff’s complaint “must contain enough

facts to state a claim to relief that is plausible on its

face.” Varela v. Gonzalez, 773 F.3d 704, 707 (5th Cir. 2014)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)

(internal quotes omitted)). A claim is facially plausible when the

plaintiff pleads facts that allow the court to “draw the reasonable

inference that the defendant is liable for the misconduct

alleged.” Id. A court must accept all well-pleaded facts as true

and must draw all reasonable inferences in favor of the

plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th

Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).

However, the court is not bound to accept as true legal conclusions

couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009). “[C]onclusory allegations or legal conclusions

masquerading as factual conclusions will not suffice to prevent a

motion to dismiss.” Taylor v. Books A Million, Inc., 296 F.3d 376,

378 (5th Cir. 2002). A fortiori, a complaint may be dismissed when

it appears “beyond a doubt that plaintiff can prove no set of

facts” that would entitle him to prevail. Twombly, 550 U.S. at

560–61, 127 S.Ct. 1955; First Am. Bankcard, Inc. v. Smart Bus.

Tech., Inc., 178 F. Supp. 3d 390, 399 (E.D. La. 2016). However,

the Fifth Circuit has stated that motions to dismiss under Federal

Rule of Civil Procedure 12(b)(6) are “viewed with disfavor and

[are]...rarely granted.” Lormand v. U.S. Unwired, Inc., 565 F.3d

228, 232 (5th Cir.2009).

B. The Century Policy will be considered on this motion to

dismiss.

In ruling on a Rule 12(b)(6) motion, the court may consider

not only the allegations in the Complaint, but also any documents

attached to the complaint, referenced documents that are central

to the claim, and documents that are part of the public record or

subject to judicial notice. See e.g., Wolcott v. Sebelius, 635

F.3d 757, 763 (5th Cir. 2011) (citation omitted) (stating a court

may consider Complaint, its proper attachments, documents

incorporated by reference, and matters of judicial notice). In

addition, the court may consider any documents attached to the

motion to dismiss that are central to the claim and referenced by

the complaint. Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC,

594 F.3d 383, 387 (5th Cir. 2010) (citing Collins v. Morgan Stanley

Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000)). Significantly,

when an allegation is contradicted by the contents of an attached

exhibit, the exhibit (not the allegation) controls. U.S. ex rel.

Riley v. St. Luke's Episcopal Hosp., 355 F.3d 370, 377 (5th Cir.

2004) (stating that if an allegation is contradicted by contents

of an exhibit, the exhibit and not the allegation controls).

In McDonald v. Kansas City S. Ry. Co., plaintiff Sharon

McDonald, individually and as the personal representative of the

Estate of Johnnie McDonald, filed suit against defendant Kansas

City Southern Railway Company (“KCS”), alleging that her husband

was exposed to toxic substances during the time he worked for

defendant, which ultimately caused his premature death. No. CV 16-

15975, 2017 WL 1709353 (E.D. La. May 3, 2017). Defendant moved to

dismiss plaintiff's claim under Federal Rule of Civil Procedure

12(b)(6), arguing that plaintiff entered into a binding settlement

agreement that barred plaintiff's suit. Id. at *1. In support of

this argument, KCS asked the Court to consider several emails in

which purported to show that plaintiff entered into a binding

agreement. Id. Plaintiff responded by arguing that defendant's

motion should be converted to a motion for summary judgment because

of the email attachments. Id.

On review, the Court began by asserting the rule of law in

this circuit, particularly that “a court may consider documents

attached to a motion to dismiss without converting it to a summary

judgment motion if the documents are referred to in the complaint

and are central to the plaintiff's claim.” Id. In this case, the

emails defendant attached to its motion to dismiss were not

referred to in the plaintiff’s complaint. McDonald, 2017 WL 1709353

at *2. The court reasoned that because defendant’s motion to

dismiss was based on emails that fell outside the pleadings, the

court had discretion either to accept the extraneous material and

convert the motion to dismiss into a motion for summary judgment,

or to decide the motion, as defendant styled it, under the

principles of Rule 12(b)(6). Id. Ultimately, the Court decided to

exercise its discretion to accept the emails and convert the

defendant’s motion to dismiss into a motion for summary judgment.

Id.

This Court finds McDonald to be instructive, but also

distinguishable from the case at bar. Unlike the emails in

McDonald, the insurance policy Century attached as an exhibit to

its motion to dismiss is in fact referenced in plaintiff’s

complaint. Paragraph 203 of plaintiff’s complaint states, in

pertinent part, “[A]t all times relevant to this petition, there

was in full force and effect a policy of general liability

insurance issued by the defendant, Century Surety Company, to and

in favor of defendant, Lions Inn, which policy inures to the

benefit of plaintiff….” Rec. Doc. 1 at pg. 22. Additionally, the

language of the insurance policy, specifically the exclusion

clauses, are central to plaintiff’s claims and the determination

of whether plaintiff can recover from Century. Accordingly, the

Court will consider the insurance policy as part of Century’s

motion to dismiss. Mendler v. Derouen, No. CIV.A. 08-4217, 2009 WL

411244 (E.D. La. Feb. 18, 2009) (recognizing the Court “may

consider an insurance policy attached to a motion to dismiss as

part of the pleadings if the document is referred to in the

complaint and central to plaintiffs' claims.”); see also Leleux v.

Hassan, No. CV 17-1237, 2018 WL 328155 (W.D. La. Jan. 8, 2018)

(finding that because the plaintiff’s complaint referenced the

documents defendant attached to his motion to dismiss, and given

the documents are central to plaintiff’s claims, the court can

consider the exhibits as part of the motion to dismiss.)

C. Plaintiff’s Assault and Battery claims are barred under the

Policy.

According to Louisiana law, an insurance policy is a contract

that constitutes the law between the parties, and it must be

interpreted in accordance with the general rules of contract

interpretation set forth in the Louisiana Civil Code. See

Cadwallader v. Allstate Ins. Co., 848 So.2d 577, 580 (La.2003); In

re Katrina Canal Breaches Litig., 495 F.3d 191 (5th Cir. 2007).

The extent of insurance coverage is determined by the parties'

intent as reflected by words in the policy. See Richard v. Anadarko

Petroleum Corp., 850 F.3d 701, 713 (5th Cir. 2017) (citing

Cadwallader, 848 So.2d at 580). If the policy wording is clear,

and it expresses the intent of the parties, the agreement must be

enforced as written. Pioneer Expl., L.L.C. v. Steadfast Ins. Co.,

767 F.3d 503, 512 (5th Cir. 2014) (citing Cadwallader, 848 So.2d

at 580); La. Civ. Code art. 2046; Pareti v. Sentry Indem. Co., 536

So. 2d 417, 420 (La. 1988). If an ambiguity exists, the ambiguity

must be construed in favor of the party seeking coverage. See

Richard, 850 F.3d at 714. Additionally, the Fifth Circuit has

recognized that “[w]hen an exclusion precludes coverage for

injuries ‘arising out of’ described conduct, the exclusion is given

a broad, general, and comprehensive interpretation. A claim need

only bear an incidental relationship to the described conduct for

the exclusion to apply.” Scottsdale Ins. Co. v. Texas Sec. Concepts

and Investigation, 173 F.3d 941, 943 (5th Cir.1999).

Policy Provisions

The policy at issue in this matter provides commercial general

liability coverage to Lions Inn. The policy’s insuring agreement

states that Century “will pay those sums that the insured becomes

legally obligated to pay as damages because of ‘bodily injury’ or

‘property damage’ to which this insurance applies.” The policy

also contains an assault and battery exclusion, which excludes

coverage for bodily injury, property damage, or personal and

advertising injury “arising out of or resulting from”:

(a) any actual, threatened, or alleged assault or

battery regardless of whether or not any action was

undertaken or was alleged to have been undertaken

in self-defense;

This exclusion unambiguously applies to plaintiff’s assault and

battery claims against Lions Inn Bed & Breakfast; and thus,

plaintiff has not pled “a claim to relief that is plausible on its

face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct.

1955, 1974, 167 L.Ed.2d 929 (2007).

First and foremost, plaintiff alleged several acts qualifying

as an assault and/or battery. Plaintiff alleged a battery when she

asserted Walley grabbed the top of her shoulders and began pushing

her head underwater in the hot tub. See United Nat. Ins. Co. v.

Paul & Mark's Inc., No. CIV.A. 10-799, 2011 WL 446280 (E.D. La.

Feb. 4, 2011) (citing Landry v. Bellanger, 851 So.2d 943, 949

(La.2003) (defining battery as “a harmful or offensive contact

with a person, resulting from an act intended to cause the

plaintiff to suffer such a contact ….”)) Likewise, plaintiff

suffered an assault when she stated that she was fearful of Walley

when he threw her phone at her in the pool. Id.; State v. Gardner,

2016-0192 (La. App. 1 Cir. 9/19/16), 204 So. 3d 265, 267-68 (“[T]he

elements of assault are (1) the intent-to-scare mental element

(general intent), (2) conduct by the defendant of the sort to

arouse a reasonable apprehension of bodily harm, and (3) the

resulting apprehension on the part of the victim.”)

Because plaintiff is seeking damages arising out of and

resulting from her alleged assault and battery, those claims are

clearly barred by Century’s assault and battery exclusion.

Accordingly, Century’s motion to dismiss is granted in part,

dismissing all plaintiff’s claims for assault and battery.

D. The Assault and Battery Exclusion does not bar Plaintiff’s

remaining claims.

Century asserts that in addition to plaintiff’s assault and

battery claims, her remaining tort claims should likewise be

dismissed under the exclusion, infra. Defendant’s argument rests

on the interpretation of subsection (f) and section 2 of the

exclusion.

Subsection (f) states, in pertinent part:

(f) any other act or omission, either leading up to,

during or following any alleged assault or battery, on

the part of the insured or anyone else for whom the

insured may be legally responsible, in any way relating

to, concurrently or in succession with 1. (a), (b), (c),

(d) or (e), above.

While section 2 states,

2. We shall have no duty to defend or indemnify any

claim, demand, “suit”, action, litigation, arbitration,

alternative dispute resolution or other judicial or

administrative proceeding seeking damages, equitable

relief, injunctive relief, or administrative relief

where:

(a) any actual or alleged injury arises out of any

combination of an assault or battery-related cause

and a non-assault or battery-related cause.

(b) any actual or alleged injury arises out of a chain

of events which includes assault or battery, regardless

of whether the assault or battery is the initial

precipitating event or a substantial cause of injury.

(c) any actual or alleged injury arises out of assault

or battery as a concurrent cause of injury, regardless

of whether the assault is the proximate cause of injury.

(d) any actual or alleged injury arises out of any act

or omission in connection with the prevention or

suppression of assault or battery or any physical

altercation.

Century contends that because the policy language is broad and

covers not only an alleged assault and battery, but also any

combination of an assault and battery with any other tortious act,

plaintiff’s additional tort claims should be dismissed.

Specifically, Century argues that subsection (f) bars plaintiff’s

recovery because it states that she cannot recover for any act

that occurred “either leading up to, during, or following [the]

alleged assault and battery.” According to Century, because

plaintiff’s claims for intentional infliction of emotional

distress, false imprisonment, and wrongful eviction occurred in

combination with, led up to, and/or followed her alleged assault

and battery, all those claims should be dismissed.

In support, Century cites Espinosa v. Accor N. Am., Inc.,

2014-0001 (La. App. 4 Cir. 9/24/14), 148 So. 3d 244, writ denied,

2014-2446 (La. 2/13/15), 159 So. 3d 466, and writ denied, 2014-

2453 (La. 2/13/15), 159 So. 3d 467, and Proshee v. Shree, Inc.,

2004-1145 (La. App. 3 Cir. 2/2/05), 893 So. 2d 939. Century argues

that these cases stand for the proposition that Louisiana courts

routinely uphold broad insurance policies such as the one at bar,

denying recovery for non-assault and battery causes of action. See

Espinosa, 148 So. 3d 244, 254 (finding Century’s preclusion of

coverage extended to “any other cause of action or claim arising

out of or a result of,” inter alia, an assault and battery, and

bars “coverage for all of the claims asserted in this lawsuit, no

matter how artfully various theories of recovery are alleged,

absent any other modifying provision in the policy.”); Proshee,

893 So. 2d 939, 944 (“even if one finds that the robbery or failure

to prevent the assault or battery is a non-assault or battery

related cause, the policy exclusion clearly and unambiguously

states that Century shall have no duty to defend any claim where

‘any actual or alleged injury arises out of any combination of an

assault or battery-related cause and a non-assault or battery-

related cause.’”)

However, those cases are distinguishable from the case at

hand. In both Espinosa and Proshee, the claims before the court

were for negligence. Specifically, the plaintiffs in both cases

were suing their hotels for negligence, e.g., negligent failure to

provide adequate security and negligent failure to notice

dangerousness of premises. In neither case did the plaintiffs

allege other intentional tort claims. Moreover, the assault and

battery exclusions before those Courts contained exclusions

barring negligence claims arising out of alleged assaults and

batteries.

Here, plaintiff not only alleged negligence against the Lions

Inn, but also other intentional torts. These additional tort claims

of intentional infliction of emotional distress, false

imprisonment, and wrongful eviction are separate and distinct from

the alleged assault and battery. In Proshee, the Court stated that

the Louisiana Fourth Circuit Court of Appeals decision in Maise v.

Cat's Meow, Inc., was instructive. Proshee, 893 So. 2d 939, 944;

Maise v. Cat's Meow, Inc., 96–1998 (La.App. 4 Cir. 10/16/96), 683

So.2d 846. In Maise, the Court held that irrespective of the fault

alleged by plaintiff (whether negligence, intentional act or

otherwise), because their injuries arose out of a battery, the

policy provided no coverage because of its assault and battery

exclusion. Maise, 683 So.2d at 847 (emphasis added).

Unlike the plaintiff in Maise, O’Donnell has alleged injuries

separate and distinct from those suffered due to her alleged

assault and battery. For example, plaintiff stated that she

suffered severe emotional distress when Walley flew into a “fit of

volcanic rage,” cursing, pacing madly, and hurling insults at her.

Rec. Doc. 1. This emotional injury is not connected to the physical

injury plaintiff suffered when Walley grabbed her shoulders,

pushing her head underwater in the hot tub. Additionally,

plaintiff’s false imprisonment claim did not arise out of the

alleged assault and battery given she alleged that Walley

unlawfully detained her when he commanded that she stay in her

room and “loudly patrolled the hallways and patio” to make sure

she did not leave her room. Lastly, the allegations surrounding

the wrongful eviction claim do not arise out of the assault and

battery because the claim is centered around Walley commanding

that plaintiff evacuate the Lions Inn upon sunrise. Accordingly,

Century’s motion to dismiss is denied in part without prejudice,

retaining plaintiff’s claims for intentional infliction of

emotional distress, false imprisonment, and wrongful eviction.

New Orleans, Louisiana this 3rd day of May, 2022

___________________________________

SENIOR UNITED STATES DISTRICT JUDGE