     Case: 12-60419       Document: 00512113192         Page: 1     Date Filed: 01/15/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         January 15, 2013

                                     No. 12-60419                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



CHRISTOPHER MICHAEL ARCHIE,

                                                  Plaintiff-Appellant
v.

ACCEPTANCE INDEMNITY INSURANCE CO.,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                                USDC 4:10-CV-63


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Christopher Archie was injured during a shooting at
a night club, and won a suit against the night club, the night club owner, and the
security guard who shot him. Archie then filed the present declaratory action
against the night club’s insurance carrier, Acceptance Indemnity Insurance Co.
(“Acceptance Indemnity”), which had denied coverage of Archie’s injury. The




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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district court granted summary judgment in favor of Acceptance Indemnity.
Archie now appeals. We AFFIRM the district court’s judgment.
                       FACTS AND PROCEEDINGS
      On January 29, 2003, Archie was in Club Focus, a night club in Itta Bena,
Mississippi that was owned by Rosie Meeks Brown. Johnny King, d/b/a King
Security, was the security guard on duty at Club Focus that evening. Another
club patron, Alonzo Hemphill, fired a gun into the crowd. King returned fire.
King fatally injured Hemphill and also shot and wounded Archie, who was
rendered a paraplegic as a result of his injuries.
      Archie sued Brown, King, Club Focus, and King Security, but did not name
Brown’s insurance carrier, Acceptance Indemnity, as a defendant. Acceptance
denied coverage of Archie’s claim, asserting that it fell within the Assault and
Battery/Bodily Harm exclusion provision in the insurance contract. Archie
moved the state court for leave to amend his complaint to add Acceptance as a
defendant. However, he opted not to pursue the motion and took a default
judgment against Brown and King. In the subsequent trial to determine
damages, the jury awarded Archie $12,000,000.00 and $2.00 for punitive
damages on March 11, 2010. On April 13, 2010, Archie filed a declaratory
judgment in state court, seeking a declaration that Brown’s insurance policy
covers his injuries. Acceptance Indemnity removed the case to federal district
court on May 12, 2010. Acceptance Indemnity then moved for summary
judgment, which the district court granted. Archie now appeals.
                          STANDARD OF REVIEW
      We review “a district court’s grant of summary judgment de novo, applying
the same standard as the district court.” Hillman v. Loga, 697 F.3d 299, 302 (5th
Cir. 2012). Summary judgment is appropriate if the record shows that “there is
no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). A fact is
material if it “might affect the outcome of the suit under the governing law.”

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party
bears the initial burden of demonstrating that summary judgment is
appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the nonmoving
party would bear the burden of proof at trial, the moving party may meet its
burden by showing “that there is an absence of evidence to support the
nonmoving party’s case.” Id. at 325. Once the moving party has made this
showing, the burden shifts back to the nonmoving party “to go beyond the
pleadings and by her own affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,’ designate ‘specific facts showing that
there is a genuine issue for trial.’” Id. at 324; see also Galindo v. Precision Am.
Corp., 754 F.2d 1212, 1216 (5th Cir. 1985). The nonmoving party must, in
demonstrating that an issue of fact is genuine, “do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). While any
reasonable inferences are to be drawn in favor of the nonmoving party, Gowesky
v. Singing River Hosp. Sys., 321 F.3d 503, 507 (5th Cir. 2003), “[u]nsubstantiated
assertions, improbable inferences, and unsupported speculation are not
sufficient to defeat a motion for summary judgment.” Brown v. City of Houston,
Tex., 337 F.3d 539, 541 (5th Cir. 2003).
                                   ANALYSIS
      Brown’s insurance contract with Acceptance Indemnity including an
Assault and Battery/Bodily Injury exclusion that provides:
            ASSAULT AND BATTERY EXCLUSION
            It is agreed that the insurance does not apply to Bodily Injury,
      including death, and/or Property Damage arising out of assault
      and/or battery or out of any act or omission in connection with the
      prevention of suppression of such acts, whether caused by or at the
      instigation or direction of the insured, his employees, patrons or any
      other person.


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      Archie argues that summary judgment should be denied because the
exclusion is inapplicable because his injuries were caused by “reckless disregard”
and not by assault and battery because King and Hemphill lacked the requisite
intent to commit assault or battery against him. He also claims that a minor
typographical error in the clause—in which the word “or” was typed up as
“of”—introduced ambiguity into the contract and therefore creates a genuine
issue of material fact. Because Archie’s injuries arose out of the assault and
battery committed by Hemphill, we affirm the district court.
      The Mississippi Supreme Court has held that in insurance policies,
“language in exclusionary clauses must be written in clear and unmistakable
language and . . . such clauses are always strictly interpreted.” Miss. Farm
Bureau Mut. Ins. Co. v. Jones, 754 So.2d 1203, 1204 (Miss. 2000). Insurance
contracts, including exclusionary clauses, are liberally construed in favor of the
insured. U.S. Fid. & Guar. Co. of Miss. v. Martin, 998 So.2d 956, 963 (Miss.
2008). However, “if a contract is clear and unambiguous, then it must be
interpreted as written,” even if such interpretation results in hardship for the
insured. Id.; see also Titan Indem. Co. v. Estes, 825 So. 2d 651, 656 (Miss. 2002).
Here, the relevant terms are not ambiguous.
      Under Mississippi law, an assault is committed “where a person (1) acts
intending to cause a harmful or offensive contact with the person of the other or
a third person, or an imminent apprehension of such contact, and (2) the other
is thereby put in such imminent apprehension.” Morgan v. Greenwaldt, 786
So.2d 1037, 1043 (Miss. 2001). “A battery goes one step beyond an assault in that
a harmful contact actually occurs.” Id. The terms are unambiguous. Both
Hemphill and King committed assault, and King committed battery, in that his
shots actual hit and killed Hemphill and injured Archie. Hemphill, in opening
fire in a night club, intended to, in the very least, create in persons in the night
club an imminent apprehension of harmful or offensive contact; and thereby put

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                                  No. 12-60419

others in the night club in such imminent apprehension. King also intended to
return fire, and at the very least intended to cause imminent apprehension of
harmful contact to Hemphill. Under the common law doctrine of transferred
intent, which is applicable to assault, “the malicious intent of the unlawful act”
by King transferred to Archie. See Hitt v. State, 988 So.2d 939, 942 (Miss. App.
2008).
      Moreover, we have “held that the words ‘arising out of,’ when used within
an insurance policy, are ‘broad, general, and comprehensive terms effecting
broad coverage.’” Am. States Ins. Co. v. Bailey, 133 F.3d 363, 370 (5th Cir. 1998)
(quoting Red Ball Motor Freight, Inc. v. Emp’rs Mut. Liab. Ins. Co., 189 F.2d 374,
378 (5th Cir. 1951)). “A claim need only bear an incidental relationship to the
described conduct for the exclusion to apply.” Scottsdale Ins. Co. v. Texas Sec.
Concepts & Investigation, 173 F.3d 941, 943 (5th Cir. 1999). Archie need not
have been the intended target of the assault and battery for the exclusion to
apply. The exclusion applies to any “Bodily Injury, including death, and/or
Property Damage arising out of assault and/or battery.” Archie’s injuries arose
out of Hemphill’s assault, because King would not have fired on Hemphill had
Hemphill not opened fire in the club. Archie’s injuries also arose out of King’s
assault and battery, because he was injured by King when King fired back on
Hemphill. The exclusion unambiguously excludes coverage of injuries arising out
of an assault and battery, and therefore excludes Archie’s injuries.
      Archie contends that a typographical error in the contract introduces
ambiguity into the contract. The contract, as written, states that the policy
excludes coverage of injuries “arising out of assault and/or battery or out of any
act or omission in connection with the prevention of suppression of such acts,”
(emphasis added). Because the contract clearly excludes either injuries arising
out of an assault and/or battery, or injuries arising out of “any act or omission
in connection with the prevention of suppression of such acts,” and because

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Archie’s injuries arose out of Hemphill’s assault, the exclusion provision applies.
Therefore, any ambiguity introduced into the policy by the typographical error
in the second part of the provision does not create a genuine issue of material
fact as to whether the insurance policy exclusion applied to Archie’s injuries.
                                CONCLUSION
      For these reasons, we AFFIRM the district court’s grant of summary
judgment.




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