United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER
BENSON DISTRICT JUDGE.
the court is United Specialty Insurance Company's motion
for summary judgment. (Dkt. No. 20.) In opposition to that
motion, Bruce M. Pritchett, counsel for Defendant and
Counterclaimant Marco Ortiz, filed a Rule 56(d) declaration
in support of continuance to allow for discovery. (Dkt. No.
35.) United Specialty filed a reply memorandum in support of
its motion for summary judgment and in opposition to
Defendant's request for additional discovery. (Dkt. No.
41.) Pursuant to civil rule 7-1(f) of the United States
District Court for the District of Utah Rules of Practice,
the Court elects to determine the motion on the basis of the
written memoranda and finds that oral argument would not be
helpful or necessary. DUCivR 7-1(f).
January 28, 2018, Marco Ortiz was a patron at a nightclub
called Quantum Ultra Lounge, which is owned and operated by
Victor Galindo and Jorge Bizarro. (Dkt. No. 14 at 5.)
According to an eyewitness report, Ortiz was “was
trying to get up on the stage” area that was not open
to customers, and was consequently asked to leave the club.
(See Dkt. No. 20-5 at 5.) That same eyewitness
reported to police that Quantum security staff repeatedly
asked Ortiz to leave Quantum and its parking lot area.
(See id.) After exiting the lounge, contention arose
between Ortiz and Quantum employees and/or patrons,
culminating in a physical altercation on a sidewalk adjacent
to the lounge. (See Dkt. No. 20 at 2; Dkt. No.
20-5.) According to the police report, the incident was
“a large fight outside of Moose Lounge involving
approximately 20 people.” (Dkt. No. 20-5 at 5.) Various
witnesses confirmed that “fighting, beatings, punching,
pushing, holding, . . . and physical violence” took
place; the police report further provides that Ortiz stated
he “got punched in the face several times.” (Dkt.
No. 20 at 8.)
claims that during this altercation “Galindo, Bizarro,
and/or other Quantum employees fell on him or caused him to
fall, ” causing Ortiz to sustain physical injuries
(including purportedly an ankle, foot, and/or leg injury);
Ortiz argues that Galindo, Bizarro, and Quantum are liable
for his injuries. (Dkt. No. 14 at 6; Dkt. No. 20 at 2; Dkt.
No. 20-5 at 5.) He also contends that Quantum, Galindo, and
Bizarro “knew or should have known that certain violent
and aggressive individuals frequented the club who posed an
unreasonable risk of bodily harm to customers, but failed to
control or remove such individuals from the premises . . .,
” or alternatively, that Quantum and their employees
“used excessive force.” (Dkt. No. 14 at 5-6.)
3, 2018, Ortiz filed the underlying action against Quantum,
Galindo, Bizarro, and 4th South Associates
(landlord for the premises where Quantum is located) in the
Third Judicial District Court in and for Salt Lake County for
his alleged injuries, including causes of action for
“Simple Negligence” and “Negligent
Hiring/Training/ Retention/Supervision.” (Dkt. No.
20-4.) Quantum, Galindo, and Bizarro seek coverage for the
Ortiz claim under United Specialty's commercial general
liability policy issued to Quantum on June 30, 2017. (Dkt.
No. 20 at 2; Dkt. No. 20-1 at 3.) The policy includes an
“assault and battery” exclusion stating that the
insurance does not apply to “bodily injury”
arising out of or resulting from any actual, threatened, or
alleged assault or battery. (Dkt. No. 20 at 4-5.) It also
includes, inter alia, an exclusion for the failure of the
insured to prevent or suppress any assault or battery, the
failure of the insured to render or secure medical treatment
necessitated by any assault or battery, the negligent
employment or training of a person whose conduct would fall
under this exclusion, or any other act or omission by the
insured in any way relating to this exclusion either leading
up to, during or following any alleged assault or battery.
(See Id. at 5.) Additionally, the policy states that
United Specialty “shall have no duty to defend or
indemnify any claim” seeking damages or other relief
where any actual or alleged injury arises out of, inter alia:
. any combination of an assault or
battery-related and non-assault or battery related cause;
. a chain of events including assault or
battery (regardless of whether the assault or battery is a
substantial or proximate cause of the injury); or
. any act or omission in connection with the
prevention or suppression of assault or battery or any
February 19, 2019, United Specialty filed an amended
declaratory judgment action seeking a declaration that 1) the
policy does not provide coverage for the underlying action,
2) United Specialty has no duty to defend or indemnify
Quantum, Galindo, Bizarro, or 4th South Associates
in the underlying action, 3) Ortiz has no right of recovery
against United Specialty, and 4) United Specialty is entitled
to an award of costs/fees incurred. (Dkt. No. 34 at 10-13.)
moving for summary judgment meets its burden by demonstrating
“that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). An issue is genuine “if
there is sufficient evidence on each side so that a rational
trier of fact could resolve the issue either way.”
Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir.
2013). An issue of fact is material “if under the
substantive law it is essential to the proper disposition of
the claim.” Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 670 (10th Cir. 1998). The moving party may
satisfy its initial burden of making a prima facie
demonstration that no genuine issue of material fact exists
by pointing out to the court a lack of evidence for the
nonmovant on an essential element of the nonmovant's
claim. See Adler, 144 F.3d at 670-71. “If the
movant carries this initial burden . . . the burden shifts to
the nonmovant to go beyond the pleadings and set forth
specific facts . . . from which a rational trier of fact
could find for the nonmovant.” Id. at 671.
Rule 56(d) Request for ...