Argued: February 1, 2019
from the United States District Court for the Western
District of Kentucky at Louisville. No. 3:17-cv-00326-Thomas
B. Russell, District Judge.
G. Carey, SMITH & CAREY, PLLC, Louisville, Kentucky, for
Kendrick Wells IV, FROST BROWN TODD LLC, Louisville,
Kentucky, for Appellee.
G. Carey, SMITH & CAREY, PLLC, Louisville, Kentucky, for
Kendrick Wells IV, Griffin Terry Sumner, Jeremiah A. Byrne,
Justin S. Fowles, FROST BROWN TODD LLC, Louisville, Kentucky,
Before: GRIFFIN, WHITE, and BUSH, Circuit Judges.
K. Bush, Circuit Judge.
summer night in 2015, gunshot blasts pulverized the sociable
hum of a nightclub in Louisville, Kentucky. Somebody had
brought a firearm into the bar, and the ensuing discharge of
bullets struck eight people. Six of those people sued the
nightclub's owner, Cole's Place, Inc.
("Cole's Place"), in state court, arguing that
Cole's Place had failed to protect the plaintiffs from a
foreseeable harm. Now that United Specialty Insurance Company
("USIC") has obtained a federal declaratory
judgment that it is not obligated to defend or indemnify
Cole's Place in the state-court litigation, Cole's
issues are before us. First, did the district court abuse its
discretion in exercising Declaratory Judgment Act
jurisdiction over USIC's lawsuit? Second, if the answer
to the first question is no, did the district court err in
finding that an assault-and-battery exclusion in Cole's
Place's insurance policy with USIC applies to the
state-court litigation? Because the district court did not
abuse its discretion in exercising jurisdiction and because
it correctly applied controlling law to the
insurance-coverage issue, we AFFIRM.
on injuries they sustained from the shooting, six plaintiffs
filed a total of four lawsuits in state court against
Cole's Place, alleging (among other things) that the
nightclub owner had negligently failed to protect them. Three
of the four lawsuits sought punitive damages as well as
compensatory relief. On one plaintiff's unopposed motion,
the actions were consolidated under the caption Kendall
Latrell Starks v. Cole's Place, Inc., Jefferson
Circuit Court, Division 8, No. 15-CI-005424. The complaints
allege a "shooting," which three of the complaints
also describe as an "attack." R. 1-2, PageID
115-17, 120-21, 125-29, 134-37. For example, plaintiff
Kendall Starks's complaint makes the following
13. That the identity of the person suspected of committing
the shooting described herein was known to Defendant
Cole's Place prior to the period July 18-19, 2015 [the
night when the shooting allegedly occurred];
14. That the person suspected of committing the shooting
described herein was a patron of the Defendant during the
period noted in this Complaint;
17. That . . . Defendant Cole's Place failed to hire,
train, supervise and otherwise employ appropriate security
personnel and procedures to prevent or otherwise protect
patrons visiting its business premises from a known history
of potentially violent conduct;
18. That . . . Defendant Cole's Place failed to take
appropriate adequate steps to prevent or otherwise protect
members of the general public visiting its business premises
from a known history of potentially violent conduct;
That the Defendant did commit the tort of outrageous conduct
1) wrongfully and intentionally preventing the attack
injuring the Plaintiff
2) by acts which they either knew or should [sic] were not
provoked or caused by him, and
3) did exacerbate said tort by failing to take reasonable
steps to prevent the risk of harm to the Plaintiff in an
environment with a known history of violent, aggressive
conduct . . . .
That the Defendant did commit the tort of negligence in
b. Defendant Cole's Place . . . failed to take proper,
reasonable steps to protect the Plaintiff from a substantial
risk of aggressive, violent conduct which it knew or
reasonably should have known might occur towards members of
the general public including the Plaintiff, and by otherwise
failing to prevent the use of unreasonable force against and
upon the person of the Plaintiff . . . .
Id. at PageID 115-18. The remainder of the Starks
complaint, and two of the other state-court complaints, make
similar allegations, including the following:
[T]he person suspected of committing the shooting . . . had,
within a short period of time preceding the . . . incident .
. ., been instructed to leave the Defendant's business
premises for being involved in illegal activity and/or for
being involved in altercations with the Defendant's
private security, staff and/or patrons.
That . . . on the same evening of the shooting but prior to
the shooting . . . the person suspected of committing the
shooting had instigated and participated in an altercation
and/or argument with another unknown patron but was not
removed from the premises . . . .
Defendant . . . failed to take steps to protect Plaintiff
from the aforementioned attack which it knew or reasonably
should have known might occur against it's [sic] patrons
and/or members of the general public, including the Plaintiff
. . . .
Id. at PageID 126, 127, 136. Finally, the shortest
of the state-court complaints alleges that:
Plaintiff, a business invitee of . . . Cole's Place . .
. was injured when he was shot on the premises . . . .
It is known or reasonably should have been known by . . .
Cole's Place . . . that there were previous violent
incidents on this property.
Cole's Place . . . had notice of previous dangerous and
violent acts on its property during events.
The incident and Plaintiff's resulting injuries and
damages were caused and brought about by the negligence and
carelessness of . . . Cole's Place . . . in creating
and/or allowing a foreseeable danger to the Plaintiff.
Id. at PageID 120-21.
the state-court plaintiffs filed their complaints, Cole's
Place filed a third-party complaint against Kevon Taylor, who
had entered an Alford plea to two criminal charges
of assault in the second degree arising from the
shooting. The third-party complaint alleges that
Taylor "was the individual who actually did the
shooting" and seeks apportionment of fault against
Taylor in the ongoing state litigation. R. 15-2, PageID
264-65. In the alternative, the third-party complaint seeks
indemnification against Taylor in the event Cole's Place
is found liable in the state lawsuits. Taylor filed an answer
to the third-party complaint, denying that he had been the
time of the shooting and all times relevant to this appeal,
Cole's Place has held an insurance policy with USIC.
Relevant to this appeal, the policy provides:
A BODILY INJURY AND PROPERTY DAMAGE LIABILITY
a. We 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. We will have the right and duty to defend
the insured against any "suit" seeking those
damages. However, we will have no duty to defend the
insured against any "suit" seeking damages for
"bodily injury" or "property damage"
to which this insurance does not apply.
R. 1-1, PageID 23 (emphases added).
policy also contains a list of exclusions from coverage,
including the following:
insurance does not apply to "bodily injury",
"property damage", or "personal and
advertising injury" arising out of or resulting from:
(a) any actual, threatened or alleged assault or battery;
(b) the failure of any insured or anyone else for whom any
insured is or could be held legally liable to prevent or
suppress any assault or battery;
(c) the failure of any insured or anyone else for whom any
insured is or could be held legally liable to render or
secure medical treatment necessitated by any assault or
(d) the rendering of medical treatment by any insured or
anyone else for whom any insured is or could be held legally
liable that was necessitated by any assault or battery;
(e) the negligent:
of a person for whom any insured is or ever was legally
responsible and whose conduct would be excluded by 1. (a),
(b), (c) or (d) above;
(f) any other cause of action or claim arising out of or as a
result of 1. (a), (b), (c), (d) or (e) above.
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