The opinion of the court was delivered by: A. Richard Caputo United States District Judge
Presently before the Court is the Plaintiff's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). (Doc. 19.) For the reasons set forth below, Plaintiff's motion will be denied. The Court has jurisdiction over this matter due to diversity jurisdiction, 28 U.S.C. § 1332*fn1 , and additionally under 28 U.S.C. § 2201 et seq. (the Federal Declaratory Judgment Act).
This action arises from the shooting death of Michael F. Walter by Joseph Stacy on July 5, 2002, in Port Jervis, New York. Mr. Stacy had earlier been accused of sexually and/or indecently assaulting two of Mr. Walter's daughters, and the murder was seemingly in retaliation for Mr. Walter's participation in eliciting a confession from Mr. Stacy thereto. This confession--which was made to Michael Walter and Defendant Timothy Mitchell separately--was elicited at the Walter home on August 16, 2001. More detailed facts of this exchange will not be described here, but may be discovered by reference to the underlying action, Walter v. Pike County, No. 03-1690.
On September 25, 2003, the decedent's widow Susan L. Walter filed a complaint--in her individual capacity, as administratrix of her husband's estate, and as parent and guardian of her minor children (hereinafter referred to as "the Underlying Plaintiffs")--against Pike County, Westfall Township, its police department, Timothy J. Mitchell, Pike County District Attorney's office, and several Pike County District Attorneys (hereinafter referred to as the "Underlying Defendants"). On October 30, 2003, Underlying Plaintiffs filed a First Amended Complaint with this Court (hereinafter referred to as the "Underlying Action"). Walter v. Pike County, No. 03-1690, Doc. 6. Claims from the Underlying Action that survived Underlying Defendants' motions to dismiss include, inter alia, claims for violations of substantive and procedural due process for failing to provide police protection--which Underlying Plaintiffs claim right to under the "state-created danger" doctrine--to the Walter family following Michael Walter's participation in eliciting a confession from Joseph Stacy on August 16, 2001.
Selective Insurance Co., the Plaintiff in the present action, issued an insurance policy to Westfall Township that contained liability insurance coverage through policy number S 1673241 ("the Selective Policy") for the effective dates June 1, 2002 to June 1, 2003. At its inception, the Selective Policy provided Commercial General Liability Coverage ("CGL Coverage") and Commercial Umbrella Coverage ("Umbrella Coverage"). The Selective Policy was amended, effective July 1, 2002, to include Public Official Liability Coverage and Police Professional Liability Coverage ("PPL Coverage"). From June 1, 2002, the inception date of the Selective Policy, and for the entire duration of Westfall Township's coverage by the Selective Policy, Defendant Mitchell was employed by the Pike County District Attorney's office as a Detective. (Doc. 20, p. 3.) He had previously been the Chief of Police for Westfall Township, but was not an employee of the Township at any point during the Selective Policy coverage period. (Doc. 25, p. 5.)
Defendant Mitchell has demanded a defense and indemnity from Selective Insurance Co. with respect to the Underlying Action. Plaintiff has denied coverage alleging that they have no duty to defend or indemnify Mitchell in the Underlying Action because he was not an agent or employee of Westfall Township, the insured, at the time of Mr. Walter's murder.
Plaintiff has thus sought a declaratory statement from this Court to the effect that they have no duty to defend or indemnify Timothy Mitchell with respect to the Underlying Action. The Plaintiff filed the present motion for summary judgment with the Court on May 31, 2006. (Doc. 19.) This motion is fully briefed and ripe for disposition.
Summary judgment is appropriate 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." FED. R. CIV. P. 56(c). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. See id. at 248. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id.
Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERALPRACTICE AND PROCEDURE: CIVIL 2D § 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the Court that "the nonmoving party has ...