Essex Ins Co v. Starlight Mgmt Co , 198 F. App'x 179 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
9-27-2006
Essex Ins Co v. Starlight Mgmt Co
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3135
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Essex Ins Co v. Starlight Mgmt Co" (2006). 2006 Decisions. Paper 415.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/415
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 05-3135
ESSEX INSURANCE COMPANY,
Appellant
v.
STARLIGHT MANAGEMENT CO. and RMJC
On Appeal from the United States District Court
for the Eastern District of Pennsylvania,
(Civ. No. 01-cv-04049)
District Judge: Hon. Harvey Bartle, III
Argued: May 15, 2006
Before: McKEE and GARTH, Circuit Judges,
and LIFLAND, District Judge*
(Opinion filed: September 27, 2006 )
Richard W. Yost, Esquire (Argued)
Phillip J Meyer, Esquire
Yost & Tretta
Two Penn Center Plaza
1500 John F. Kennedy Blvd.
Suite 610
Philadelphia, PA 19102
Attorney for Appellant
*
The Hon. John C. Lifland of the United States District Court for the District of
New Jersey, sitting by designation.
1
Joel E. Oshtry, Esquire (Argued)
Oshtry & Oshtry
1819 John F. Kennedy Blvd.
Philadelphia, PA 19103
Attorney for Appellee
OPINION
McKEE, Circuit Judge.
Essex Insurance Company appeals the District Court’s grant of summary judgment
in this declaratory judgment action that Essex filed to determine its obligations under an
insurance policy it had issued to RMJC (the “Policy”).1 The suit was prompted by a tort
action filed against RMJC in state court to recover damages for injuries allegedly caused
by RMJC’s employees. In this coverage dispute, Essex claims that it was not obligated to
indemnify RMJC or defend it against that action because the damages there were
specifically excluded from coverage by the language of the Policy. After cross motions
for summary judgment were filed, the District Court awarded RMJC summary judgment
on the issue of Essex’s duty to defend RMJC. The court stayed resolution of Essex’s
obligation to indemnify pending completion of the state court litigation. That litigation
ultimately resulted in a jury award in favor of the plaintiff and the District Court
thereafter granted RMJC’s motion for summary judgment as to Essex’s obligation to
indemnify it for that award. This appeal followed.
1
Because the distinctions are not material to the issues before us, we will refer
collectively to RMJC, Inc., and Starlight Management Company, as “RMJC.”
2
Although we conclude that the District Court correctly ruled that Essex had a duty
to defend RMJC, we hold that the court erred in ruling that the Policy exclusions did not
apply as a matter of law. Accordingly, we will reverse and remand for further
proceedings on the issue of indemnification.
I. Background
Mark and Audrey Jaworski sued RMJC and others in the Court of Common Pleas
of Philadelphia County seeking compensation for injuries Mark had sustained at the Show
and Tel Showbar in Philadelphia, Pennsylvania. That establishment is a “bring your own
beverage” nightclub owned by RMJC. It offers what has euphemistically come to be
known as “adult entertainment” that advertises “totally nude live dancing girls.” In the
amended complaint they filed in state court, the Jaworskis alleged that Mark was
attending a bachelor’s party at the Show and Tel when he was struck (or pushed) without
provocation by an RMJC employee. App. 175a. Jaworski was then removed from the
club by force and sustained serious and permanent injuries when he fell down some steps.
App. 175a-76a.
The amended complaint was grounded in negligence, gross negligence and
recklessness. App. 176a. It alleged, inter alia, that RMJC employees “mistakenly
believed that [Jaworski] was uncooperative and disorderly” and, operating under that
mistaken belief, they “failed to use due care . . . in handling and physically ejecting
[him].” App. 176a. The complaint also alleged that Jaworski was injured as a result of
RMJC’s failure to “exercise due care in the selection and investigation of its employees”
3
and its failure to “provide adequate training to its security employees.” Id.
When the Jaworskis filed the suit, RMJC was the named insured under the Policy.
RMJC notified Essex of the suit as required under the Policy, and Essex filed the instant
declaratory judgment action in District Court. As noted at the outset, Essex claimed that it
had no duty to defend RMJC against the tort action, and that it had no duty to indemnify
for any recovery the plaintiffs may be awarded in that action. Essex based that argument
upon the “Assault and/or Battery” and the “Hiring and/or Supervision” exclusions of the
policy. The former stated that coverage was not offered for “any claim, suit or expense
arising out of . . . Assault and/or Battery or out of any act or omission in connection with
the prevention or suppression of such acts, whether caused by or at the instigation or
direction of any insured, insured’s employees, patrons or any other person.” App. 287.
The latter excluded coverage for “any claim, suit or expense arising out of . . . . Charges
or allegations of negligent hiring, training, placement or supervision.” Id.
RMJC argues that the focus of the state action was whether “RMJC should be held
liable for negligence because it breached the standard of care by leaving [Jaworski] at the
top of the steps and not physically escorting and walking him down the flight of stairs.”
Appellees’ Br. 17. RMJC claims “Jaworski did not present a cause of action at trial based
on negligent hiring/supervision,” id. at 13, and that assertion is consistent with our review
of the record from the state tort action.2
2
Indeed, Essex only devotes 3 paragraphs of its twenty-two page brief to arguing
(continued...)
4
During the trial in state court, Jaworski testified that he had been standing inside
the Show and Tel when he was approached by Terrence Benson, a security guard
employed by RMJC.3 Benson purportedly told Jaworski to “get the f... out of the way.”
App. 627a. Jaworski said he attempted to comply, but had difficulty moving because the
nightclub was extremely crowded. Id. Jaworski testified that he then asked Benson what
cigar he was smoking in an effort “to lighten the mood a little.” Id. The attempted
diplomatic mediation was apparently less successful then Jaworski would have liked
because “seconds later [he] turned slightly and was punched by [Benson] and went flying
on [his] back.” Id. Jaworski testified that he then “proceeded to get punched and kicked
and assaulted” while he was on the ground, and was “picked up, dragged, grabbed,
carried, to the door” and “thrown down the stairs” of the Show and Tel. App. 627a - 28a.
Jaworski’s brother-in-law, Stephen McHenry, who was standing with Jaworski at the time
of the altercation, testified that he saw the initial blow, and “Mark flew about 10 feet . . . .
At that point, everyone just kind of pounced on him.” App. 696a. McHenry did not see
how Jaworski left the club. Id.
None of the security personnel involved in the alleged altercation testified at trial,
but RMJC manager, Kevin Stone, testified that he saw Jaworski on top of the landing of
2
(...continued)
that the exclusion for negligent hiring applies to the circumstances here. Appellant’s Br.
at 21-23.
3
Jaworski learned Benson’s name at some point after the altercation. App. 628a.
5
the club cursing and yelling at the bouncers. App 687a. Stone stated that when he saw
Jaworski at the door of the club, noone was touching him and there was “no bouncer
around him for at least three (sic) to 4 feet.” App. 667a.
Scott DiGise, a maintenance worker at Show and Tel, testified that he was not able
to clean up a large spill on the floor of the club because Jaworski was standing in the
middle of it. App. 752a. DiGise testified that he twice asked Jaworski to move.
Jaworski appeared drunk, and was uncooperative and verbally abusive, forcing DiGise to
get help from the security personnel. Id. DiGise testified that he asked Benson to speak
with Jaworski. Although DiGise said he could not hear the conversation, he did see
Benson bear hug Jaworski and walk him around the corner. App 754a.
As noted above, Jaworski’s suit was based on negligence only, and not on assault.
The Verdict Form given to the jury asked whether RMJC was negligent and whether any
such negligence was a “substantial factor” in bringing about the harm to Jaworski. App.
839a. The jury returned a verdict in favor of the Jaworskis, finding that RMJC was
negligent and fully liable for Jaworski’s injuries.4
Essex eventually satisfied that state court judgment and then filed Supplemental
Briefs in support of its original request for declaratory relief from the obligation to
indemnify under the Policy. Thereafter, the District Court denied Essex’s motion and
4
The resulting award was affirmed on appeal to the Pennsylvania Superior Court,
Jaworski v. RMJC, Inc., 858 A.2d 1290 (Pa. Super. Ct. 2004) (table), and the
Pennsylvania Supreme Court, Jaworski v. RMJC, Inc., 582 Pa. 664 (Pa. 2005) (table).
6
granted summary judgment to RMJC. The court thus held that the Policy obligated Essex
to indemnify RMJC for the tort award against RMJC as a matter of law. Essex appeals,
claiming that the District Court erred in requiring it to defend and indemnify RMJC.
II. Discussion.5
In its brief, Essex states that “[w]hether the court below erred in holding that the . .
. allegations of negligence in the [Jaworski] complaint . . . required Essex to defend
RMJC, even though the factual allegations . . . describe an assault . . . within the scope of
the ‘Assault and/or Battery’ Exclusion and/or the ‘Hiring and/or Supervision’ exclusion
of the Essex policy,” is an issue presented for review, see Appellant’s Br. 1. However,
Essex never addresses the Hiring and/or Supervision issue in the “Argument” portion of
its brief. We have previously explained that including an issue in the “Statement of
Issues Presented for Review” does not raise an issue on appeal if the issue is not also
discussed in the “Argument” portion of a party’s appellate brief. See Matsko v. United
States, 372 F.3d 556, 558, n.6 (3d Cir. 2004). Moreover, Essex has already defended
RMJC and has not appealed the District Court’s order requiring it to do so. Accordingly,
that issue is now moot and we need not discuss Essex’s duty to defend except insofar as it
is helpful to our discussion of the duty of indemnification.
“The proper focus regarding issues of coverage under insurance contracts is the
reasonable expectation of the insured.” Britamco Underwriters, Inc. v. Weiner, 636 A.2d
5
All parties agree that this action is controlled by Pennsylvania law.
7
649, 651 (Pa. Super. Ct. 1994). That expectation is governed by the unambiguous
language of the insurance policy. Id.
As noted above, this dispute focuses on the Policy’s Assault and/or Battery
exclusion. Under Pennsylvania law, an individual is guilty of the crime of assault if
he/she “attempts to cause or intentionally or recklessly causes bodily injury to another” or
“attempts by physical menace to put another in fear of imminent serious bodily injury.”
18 Pa. C.S.A. § 2701. The tort of assault is defined as “an intentional attempt by force to
do any injury to the person of another, and a battery is committed whenever the violence
menaced in an assault is actually done, though in ever so small a degree, upon the
person.” Renk v. City of Pittsburgh, 641 A.2d 289, 293 (1994).
Essex relies upon Acceptance Ins. Co. v. Seybert, 757 A.2d 380 (Pa. Super. Ct.
2000) and Erie Insurance Exchange v. Filder, 808 A.2d 587 (Pa. Super. Ct. 2002) to
argue that the Jaworski complaint clearly alleges that Mark’s injuries arose from an
assault even though it is cloaked in negligence. Neither case aids Essex to the extent
Essex claims.
In Seybert, the insured, Michael Seybert, sued a bar and several individuals who
allegedly attacked him “following a night of drinking” that began at the defendant bar.
757 A.2d at 381. He alleged that the attack was the direct result of the bar serving his
assailants after they had become visibly intoxicated, thus “rendering them incapable of
safe and prudent conduct, and contributing to the attack.” Id. The bar was covered under
a policy of liability insurance issued by Acceptance Insurance Company, and Acceptance
8
brought a declaratory judgment action in an effort to have the court declare that the
resulting injuries were within the scope of the assault and battery exclusion in the policy.
Acceptance prevailed, and the insureds appealed. On appeal, the Superior Court agreed
that Acceptance had no duty to defend. The court compared the allegations in the
complaint before it with the allegations in the complaint at issue in Britamco, supra.6
and concluded that “Seybert’s complaint . . . contains no allegations that Seybert’s actual
injuries were caused in any way other than by assault and battery by the [individuals] in
the . . . parking lot. There is no suggestion that Seybert’s injuries were an accident, as
was suggested in [Britamco], or were negligently caused by [the bar’s] employees.” Id.
at 383. As we noted above, that is not the case here. The Jaworskis’ amended complaint
clearly includes allegations that could lead a fact finder to conclude that Mark’s injuries
are a result of negligent conduct, and the complaint is carefully tailored to request relief
only for RMJC’s negligence.7
Fidler affords Essex no more support than Seybert. Fidler was sued in a tort action
6
The Britamco court held that because the plaintiff, who had been struck in a bar,
asserted alternative theories of liability sounding in assault and battery, negligent
infliction of emotional distress and claims of general negligence, the insurer owed a duty
to defend. 636 A.2d at 652.
7
We also note that it is of no consequence under Pennsylvania law that the
original Jaworski complaint did sound in assault because allegations of assault are not
contained in the amended complaint before us. In Fidler, the court noted that the
“original complaint included descriptions of the incident as an ‘assault and battery.’ This
language was eliminated in the amended complaint, presumably to avoid application of
[the] exclusionary clause.” 808 A.2d at 590, n.2. The court then evaluated the duty to
defend based solely on the amended complaint.
9
by parents who alleged that he “threw [their minor son] with such great force that the
Plaintiff’s head struck the wall and a desk causing him to fall unconscious to the floor.
The complaint further alleged that, in so behaving, [the defendant] failed to act with due
and reasonable care . . . [and that he acted] negligently.” 808 A.2d at 589. Fidler
requested a defense from Erie Insurance under his homeowners’ policy. Erie filed a
declaratory action arguing that since the injury resulted from an assault, coverage was
excluded. The court agreed with Erie because it was clear from the allegations in the
complaint that the injuries were caused by Fidler’s intentional conduct. The court
explained: “[r]egardless of the language used in the complaint to ‘create’ an issue of fact
surrounding Fidler’s specific intent, it is clear from the undisputed facts alleged therein
that Fidler’s assault . . . was intentional.” 808 A.2d at 591.
Again, that is not our situation. Although one could argue that the amended
Jaworski complaint alleges an intentional assault by RMJC’s employees and negligent
failure to train, we think the complaint more closely resembles the complaint in Britamco,
which the court discussed in deciding Seybert. The Seybert court noted that the
complaint in Britamco “asserted alternative theories of liability sounding in assault and
battery . . . and claims of general negligence.” Seybert, 757 A.2d at 383. The allegations
of negligence were sufficient to trigger the insurance company’s duty to defend even
though the allegations of assault and battery would have precluded coverage if the
injuries had arisen out of the assaultive behavior. Our case is even clearer because no
such alternative theory is pled. The amended complaint clearly seeks recovery based only
10
upon negligence. Based upon the allegations of the amended complaint, it cannot be
determined as a matter of law that Jaworski’s injuries “arise out of” assault and/or
battery.8
The Policy provided coverage for “bodily injury” which “is caused by an
‘occurrence’ that takes place in the ‘coverage territory.’” App. 132a. Given the
unambiguous language of the Policy, Jaworski’s allegation that he was injured when
RMJC employees negligently “failed to use due care and proper restraint methods, in
handling and physically ejecting [him] while in the mistaken belief that he was
uncooperative” falls within RMJC’s “reasonable expectation” of coverage. Accordingly,
the District Court correctly concluded that Essex had a duty to defend RMJC in the
Jaworski tort action. As we explained earlier, that duty extends to potential claims as
well as claims that are actually covered. See United Services Auto. Ass’n. v. Elitzky, 517
A.2d at 985.
Essex claims that it was entitled to summary judgment on its claim for
indemnification because, although Jaworski’s recovery was based on the theory of
negligence, “the undisputed actions of RMJC’s employees constitute an assault and/or a
battery within the meaning of the Essex policy.” Appellant’s Br. 11. According to
8
We also note that, the injuries do not necessarily arise out of a failure to train or
supervise as a matter of law, even though that exclusion was not really at issue in Essex’s
summary judgment motion. Of course, we do not suggest that Essex is in any way
precluded from establishing that the exclusion for negligent hiring/supervision applies on
remand.
11
Essex, “Jaworski obviously could not have sought damages from RMJC, but for that
assault.” Id. at 20. However, in relying upon this argument to request summary
judgment, Essex presented no evidence beyond the state court complaint and trial
transcripts.9 The District Court rejected Essex’s motion, because “the evidence was
sufficient for the jury to find that RMJC’s employees were negligent,” and the court
entered summary judgment in favor of RMJC. Essex Ins. Co. v. RMJC, No. 01-4049,
2005 WL 1221756, at *3 (E.D. Pa. 2005).
Summary judgment is appropriate when the record “show[s] that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56©). A genuine issue is one in which the evidence is
such that a reasonable jury could not return a verdict for the nonmoving party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
On this record, Essex was not entitled to summary judgment on its claim that it
was not obligated to indemnify RMJC, and the District Court correctly denied that
motion. Although Essex argues that the evidence of assault on Jaworski was
“undisputed,” that contention is based almost entirely on the fact that none of the security
personnel involved in the altercation testified at trial. The argument is flawed for several
reasons.
9
For reasons not at all apparent to us, Essex even failed to produce the additional
evidence that Terrence Benson had been convicted of simple assault in Philadelphia
Municipal Court for his conduct at the Show and Tel that night. See App. 618a.
12
First, as Essex concedes, “the issue of whether [RMJC’s] conduct amounted to
assaultive behavior was never directly litigated.” App. 423a. In fact, Jaworski’s counsel
made clear throughout the trial that the case was about what “what happen[ed] at the
doorway area,” about “the ejection.” App. 609a; See also App. 796a. RMJC was
defending against allegations that it was negligent in its failure to ensure Jaworski got
down the steps safely after he was removed.
Second, RMJC’s decision to not call its bouncers as witnesses does not constitute
an adoption of Jaworski’s testimony. Kevin Stone estimated that the bouncers were
typically 6'6" and weighed around 350 pounds. App. 688a. RMJC may well have
assumed that allowing the jury to see their not insubstantial bouncers would do more
harm than good, regardless of the quality of their testimony.
Third, rather than rely upon its imposing bouncers to rebut Jaworski’s claim that
he was assaulted without provocation and forcefully thrown down the steps, RJMC
introduced testimony that Jaworski was loud, disruptive, and intoxicated. This testimony
would have allowed the jury to find that Jaworski fell down the steps rather than being
thrown or pushed, and that his injuries arose from his own inebriation, and not out of the
actions of RJMC’s employees.10
Jaworski claimed that he was standing inside the Show and Tel when Benson
10
We realize, of course, that the jury found that Jaworski as not contributorily
negligent. That finding was relevant to Jaworski’s ability to recover for RMJC’s
negligence, but it is not conclusive on the issue of whether his injuries “arose out of” an
assault, as that issue was never litigated.
13
attacked him without provocation. App. 627a. However, DiGise tells an entirely
different story. He testified that Jaworski was drunk, belligerent, abusive, and
uncooperative to such a degree that DiGise was forced to seek help from Benson. App
752a. Although Jaworski denies even seeing DiGise, app. 636a, DiGise’s testimony
clearly contradicts Jaworski’s claim of an unprovoked attack.
Moreover, even if the physical altercation was tantamount to an assault, it cannot
be said as a matter of law that Jaworski’s injuries “arose out of” that assault based on the
state record. It is clear that Jaworski sustained injuries when he fell down the stairs of the
Show and Tel, and he testified that he was carried to the door and thrown down the stairs.
App. 627a. However, Stone (RMJC’s manager) testified that he saw Jaworski standing
on the landing of the Show and Tel screaming and cursing. App 687a. As we noted
above, Stone stated that noone was touching Jaworski and that no bouncer was within
three or four feet of him. App. 667a. Clearly, if Jaworski was carried out of the club
and thrown down the stairs, he did not also stand around on the landing screaming at the
bouncers. Jaworski was emphatic that he was not “pushed out” of the door but “thrown
down” the stairs. App. 628a. There is clearly a factual dispute about the cause of his
injury as well as the circumstances leading up to it.
Thus, none of the testimony Essex relies upon to prove an assault can be
considered “proven at trial.” The District Court could not possibly have evaluated the
veracity of the trial testimony in the state tort action, nor can we. Only the jury that heard
14
the testimony can determine which facts were proven. However, because the jury was
only asked to decide if RMJC was negligent and whether that negligence caused
Jaworski’s injuries, a factual dispute remains about whether an assault occurred and
whether, if it did occur, Jaworski’s injuries “arose out of” it. Additional testimony is
required to resolve those factual issues.
This case, and Essex’s attempt to rely only upon the record from the state tort
action to obtain declaratory relief in a coverage dispute, illustrates the dilemma that
insurance companies face in this situation. Essex was obligated to defend RMJC against
Jaworski’s claim of negligence in state court under the terms of the Policy. Thus, it had
an ethical obligation to RMJC, its client, to vigorously defend it against all liability. In
defending against Jaworski’s claim of negligence, Essex could not argue that its client’s
employees assaulted Jaworski, even though such an assault could have relieved Essex of
the duty of indemnification under the Policy. Thus, Essex’s obligation to defend its
insured against liability in the tort action deprived it of any opportunity to establish that it
was not obligated to indemnify RMJC for the resulting judgment. That is what it
attempted to do in this coverage action, but it could not accomplish that objective by
relying only upon a state court record where the action was tried on a theory of
negligence; an “occurrence” covered under the Policy.
This “Catch-22," was first addressed in Pennsylvania in Vaksman v. Zurich
General Accident & Liability Ins. Co., 94 A.2d 186 (Pa. Super. Ct. 1953). There, the
15
court had to determine whether a tort judgment obtained on the basis of negligence
precluded the insurer from denying coverage based upon the latter’s contention that the
loss actually resulted from the intentional actions that were excluded under the liability
policy it had issued to the defendant in the underlying tort action. In holding that the tort
judgment did not automatically trigger the duty of indemnification, the court explained:
It was not possible for [t]he company . . . to defend the
insured, and at the same time to protect its own interests. It
could not exculpate itself by showing that the injurious acts of
the insured were beyond the scope of the policy, for this
showing would establish the liability of the insured to the
injured parties to an even greater extent than that claimed in
the complaints.
Id. at 188 (internal quotation marks omitted, ellipsis in original).
We addressed a very similar situation in Ranger Ins. Co., v. General Accident Fire
and Life Assur. Corp. 800 F.2d 329 (1986). There, we cited Vaksman and Dally v.
Pennsylvania Threshermen & Farmers’ Mut. Cas. Ins. Co., 97 A.2d 795 (1953), to
explain the conflict of interest that arises between an insurance company and its insured
when an issue that would determine coverage has been litigated in a prior suit between
the insured and a third party. 800 F.2d at 331.
The District Court cited recognized this dilemma. In granting Essex’s motion for
summary judgment, the court explained:
In the underlying action, Essex and RMJC likewise had a
conflict of interest. It was in the interest of Essex to assert that
Jaworski suffered from an assault and battery since if
successful Essex would not have been required to indemnify
RMJC. However, this tact would have been highly prejudicial
16
to RMJC if it had been left bare of insurance coverage.
Consequently, it was not until the conclusion of the Jaworski
action and after the judgment had been paid that Essex could
fairly litigate the issue of indemnification without harming
RMJC at the underlying trial.
Essex Ins. Co. v. RMJC, No. 01-4049, 2005 WL 1221756, at *5 (E.D. Pa. 2005).
Nevertheless, Essex’s motion for summary judgment on its request for a
declaration that it was not obligated to indemnify was premature. Essex apparently
believed that evidence of assaultive behavior in the tort action was sufficient for its
purposes even though the jury’s verdict only established that RMJC was negligent.
However, its failure to present additional evidence on this issue is fatal to its motion for
summary judgment because material issues of fact remain.
Accordingly, although Essex was not entitled to summary judgment on the basis
of the state court record, it is also clear that RMJC was not entitled to summary judgment
on its claim for indemnity. As is clear from our entire discussion of Essex’s duty to
indemnify, disputed issues of material fact also preclude granting RJMC’s cross motion
for summary judgment on Essex’s claim that it owes no duty of indemnification. Rather,
in its declaratory judgment action, Essex must litigate whether Jaworski’s injury actually
“arose out of” an assault or battery (or the hiring/supervision exclusion), and RMJC will
be free to rebut evidence to that effect.
III. Conclusion.
For the reasons set forth above, we will vacate the order granting summary
judgment in favor of RMJC on the issue of indemnification and remand to the District
17
Court for further proceedings consistent with this opinion.
18