Opinion
No. 1:01-cv-206
August 11, 2003
MEMORANDUM
Plaintiff American Modern Home Insurance Company ("AMH") brings this action for declaratory judgment pursuant to 28 U.S.C. § 2201. AMH seeks a declaration of its contractual rights and obligations under an insurance policy it issued to defendant Amateur Athletic Union of the United States, Inc. ("AAU"). The Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332.
The first question to be resolved is whether the Court should exercise its discretionary jurisdiction under 28 U.S.C. § 2201 to adjudicate this declaratory judgment action. After reviewing the record, the Court concludes it is appropriate to exercise jurisdiction over the plaintiff's complaint.
AMH moves pursuant to FED.R. CIV. P. 12(c) for partial judgment on the pleadings as to its complaint against defendant Alden Joe Daniel, Jr. ("Daniel"). [Court File No. 12]. Daniel has not filed a response and the Court deems him to have waived opposition to the motion. E.D.TN. LR 7.2. After reviewing the record, the Court concludes that the motion is well taken and it will be GRANTED. The relevant facts are not in dispute and AMH is entitled to have a declaratory judgment entered in its favor against Daniel.
I. Discretionary Jurisdiction Under Declaratory Judgment Act
The question arises whether this Court should exercise its discretion under 28 U.S.C. § 2201 to render a declaratory judgment on the controversy about insurance coverage when there is a related civil tort action pending in the state courts of Tennessee. See Omaha Property and Cas. Ins. Co. v. Johnson, 923 F.2d 446 (6th Cir. 1991). The parties have been afforded an opportunity to submit briefs.
28 U.S.C. § 2201 confers discretionary jurisdiction on federal district courts to render declaratory judgments. The statute authorizes federal courts to grant declaratory relief without imposing a duty to do so. In other words, 28 U.S.C. § 2201 empowers federal district courts to entertain actions for declaratory judgment but the statute does not compel them to exercise this jurisdiction. Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995); Brillhart v. Excess Ins Co., 316 U.S. 491, 494 (1942); Foundation For Int. Design v. Savannah College, 244 F.3d 521, 526 (6th Cir. 2001); Aetna Cas. Sur. Co. v. Sunshine Corp., 74 F.3d 685, 687 (6th Cir. 1996); Nationwide Mut. Fire Ins. Co. v. Willenbrink, 924 F.2d 104, 105 (6th Cir. 1991). Allstate Ins. Co. v. Mercier, 913 F.2d 273, 276 (6th Cir. 1990). The appropriateness of declaratory relief is a threshold issue which must be determined before the Court can address the motion by AMH for judgment on the pleadings against Daniel. Willenbrink, 924 F.2d at 105.
A. Background
AMH is an Ohio corporation with its principal place of business in Ohio. AAU is a New York corporation with its principal place of business in Lake Buena, Vista, Florida. Daniel is a Tennessee citizen presently in the custody of the Tennessee Department of Corrections and incarcerated in a Tennessee prison.
Because there is diversity jurisdiction under 28 U.S.C. § 1332, this Court must follow and apply the substantive law of the forum state, Tennessee. Erie R.R. v. Tompkins, 304 U.S. 64 (1938); Jandro v. Ohio Edison Co., 167 F.3d 309, 313 (6th Cir. 1999). This includes applying Tennessee's choice of law rules. Day Zimmermann, Inc. v. Challoner, 423 U.S. 3 (1975); Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941); Spence v. Miles Laboratories, Inc., 37 F.3d 1185, 1188 (6th Cir. 1994); Electric Power Bd. of Chattanooga v. Monsanto Co., 879 F.2d 1368, 1375 (6th Cir. 1989).
AMH issued a Commercial Lines Insurance Policy No. GL51306-000 to AAU providing certain liability coverage from September 1, 1996, through September 1, 1997. AMH contends that Indiana law applies to and governs the interpretation of the insurance policy. AMH says the policy was issued and delivered to AAU in the State of Indiana. This is not disputed by the defendants.
The policy does not contain a choice of law provision. In the absence of a choice of law provision, Tennessee law requires application of the substantive laws of Indiana, the place where the insurance policy was issued and delivered to AAU. Standard Construction Co., Inc. v. Maryland Casualty Co., 2002 WL 1477886, *5 (W.D.Tenn. May 15, 2002); Ohio Casualty Ins. Co. v. Travelers Indemnity Co., 493 S.W.2d 465, 467 (Tenn. 1973); Standard Fire Ins. Co. v. Chester O'Donley, 972 S.W.2d 1, 5 (Tenn.Ct.App. 1998). Tennessee follows the rule of lex loci contractus. Absent a contrary intent expressed by the parties, a contract is presumed under Tennessee law to be governed by the substantive law of the jurisdiction in which it was entered into and executed. Mackey v. Judy's Foods, Inc., 867 F.2d 325, 328 (6th Cir. 1989); SMR Technologies v. Aircraft Parts Intern. Combs, 141 F. Supp.2d 923, 929-30 (W.D.Tenn. 2001); KW Bancshares, Inc. v. Syndicates of Underwriters, 965 F. Supp. 1047, 1051 (W.D.Tenn. 1997); Vantage Technology, LLC v. Cross, 17 S.W.3d 637, 650 (Tenn.Ct.App. 1999). AAU and Daniel do not dispute AMH's argument on this point. Consequently, this Court will interpret and enforce the insurance policy in accordance with Indiana law.
We now summarize the underlying tort litigation in state court. On April 3, 2001, a civil action was filed in the Circuit Court for Bradley County, Tennessee, styled Shenna L. Cantrell b/n/f Ellie Cantrell and Micahel Cantrell v. Aldon Joe Daniels and the Amateur Athletic Union of the United States, Inc., Case No. V-01-301 (" Cantrell lawsuit"). The complaint in the Cantrell lawsuit alleges the following.
The complaint in the Cantrell lawsuit names Aldon (sic) Joe Daniels (sic) as a defendant. The correct spelling of his name is Alden Joe Daniel, Jr.
Shenna Cantrell ("Shenna") is a resident of Bradley County, Tennessee and the minor daughter of Ellie and Michael Cantrell. AAU is an organization sanctioning athletic events and coaches throughout the United States, and the AAU is doing business in Tennessee. Daniel was serving as a coach and representative of AAU. Daniel applied for and was accepted by AAU to coach girls basketball teams in Bradley County. Shenna enrolled as a participant in the AAU sanctioned girls basketball league in Bradley County and Daniel was assigned to be her coach. Daniel used his authority as coach to sexually abuse Shenna both physically and mentally during and after AAU athletic events.
The Cantrell lawsuit claims that Daniel's conduct constitutes the common law tort of assault and battery. It is claimed that AAU is vicariously liable for Daniel's tortious acts under doctrine of respondeat superior. Shenna further contends that AAU is liable for negligence in failing to properly screen applicants for the coaching position held by Daniel and for failing to monitor Daniel's activities. The Cantrell lawsuit seeks to recover compensatory damages and punitive damages from AAU and Daniel not to exceed $1,000,000.
A separate civil action involving similar factual issues and legal claims was filed in the Bradley Circuit Court styled Ayla J. Callihan b/n/f/Lee Ann Stabler v. Alden Joe Daniel and the Amateur Athletic Union of the United States, Inc., Case No. V-01-267 (" Callihan lawsuit"). The Cantrell lawsuit and Callihan lawsuit have been consolidated by the Bradley Circuit Court for trial. However, AAU states the Cantrell lawsuit is the only one applicable to the instant case involving the dispute about insurance coverage under the policy AMH issued to AAU. [Court File No. 15, p.]. In the Cantrell lawsuit, AAU denies liability and AMH is providing a defense to AAU.
B. Complaint By AMH in Present Case
AMH brings this declaratory judgment action in federal district court contending that AAU and Daniel are not entitled to insurance coverage under the terms of the policy with regard to the Cantrell lawsuit for the following reasons. First, AMH asserts that the alleged tortious conduct by Daniel which forms the basis for the Cantrell lawsuit occurred during the period of time from June 1997 to August 1998. Criminal charges were brought against Daniel in state court in 1998. Daniel pleaded guilty and was convicted on criminal charges in August 2000, including a charge of statutory rape involving Shenna Cantrell. AMH avers that most or all of the alleged incidents of sexual abuse and assault and battery perpetrated by Daniel against Shenna occurred after the insurance coverage had expired on the policy AMH issued to AAU. The policy expired on September 1, 1997.
Second, AMH contends that Daniel is not an "insured" under the terms of the policy with regard to the assault and battery claims in the Cantrell lawsuit. AMH avers that the alleged torts committed by Daniel against Shenna were not sanctioned or sponsored by AAU, and they did not take place during AAU athletic events or basketball practices which is necessary to meet the requirements of the policy for inclusion of Daniel as an insured.
Third, AMH contends it was not notified of Daniel's criminal offenses until April 18, 2001, when AMH initially received notice of the Callihan lawsuit. As a condition precedent to insurance coverage, the policy requires that notice be given to AMH as soon as practicable of an occurrence or offense which may result in a claim. AMH takes the position that AAU and Daniel are not entitled to any insurance coverage regarding the Cantrell lawsuit because notice of Daniel's tortious and criminal conduct against Shenna Cantrell was not timely given to AMH.
Fourth, AMH contends that the nature of the compensatory and punitive damages demanded in the Cantrell lawsuit do not fall within the express definitions of the terms "property damage," "personal injury," and/or "advertising injury" as set forth in the policy. AMH says there is no insurance coverage for AAU and Daniel under the policy for such damages.
Fifth, AMH contends that Daniel's conduct and actions alleged in the Cantrell lawsuit are criminal and intentional in nature. The policy excludes insurance coverage for a "bodily injury" that is "expected or intended from the standpoint of the insured." Assuming arguendo that Daniel is an insured under the policy, to the extent the damages claimed against Daniel in the Cantrell lawsuit arose because of a bodily injury to Shenna Cantrell, those damages are excluded from insurance coverage by the terms of the policy because the bodily injury was expected or intended from the standpoint of Daniel. Moreover, damages resulting from Daniels' criminal acts are excluded from insurance coverage as a matter of public policy.
Sixth, AMH contends the policy applies to a "bodily injury" only if it is caused by an "occurrence." The term "occurrence" is defined in the policy as meaning "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." AMH contends that the claims and allegations made against Daniel in the Cantrell lawsuit do not constitute an accidental "occurrence" covered by the policy.
Seventh, AMH contends that because there is no insurance coverage under the policy for Daniel, AMH owes no duty to defend Daniel in the Cantrell lawsuit.
Eighth, AMH contends that Daniel is not an employee or agent of AAU, and that Daniel's criminal and intentional tortious acts committed against Shenna cannot be imputed vicariously to AAU through the doctrine of respondeat superior or otherwise as claimed in the Cantrell lawsuit. AMH also avers that the policy by its terms, and as a matter of public policy, does not provide any insurance coverage to AAU for damages caused by Daniel's intentional criminal acts and the expected "bodily injury" to Shenna.
C. Analysis
There is no per se rule that prevents the exercise of jurisdiction by this Court over a declaratory judgment action brought by an insurer to determine a question about insurance coverage. Employers' Fire Ins. Co. v. Danis Building Construction Co., 229 F.3d 1151 (Table, text in 2000 WL 1234321, *2 (6th Cir. Aug. 22, 2000); Scottsdale Ins. Co. v. Roumph, 211 F.3d 964, 967 (6th Cir. 2000); Aetna Cas. Sur. Co., 74 F.3d at 687-88; Mercier, 913 F.2d at 277-78; Allstate Ins. Co. v. Green, 825 F.2d 1061, 1066 (6th Cir. 1987). Generally, the standard to determine whether a federal district court should exercise discretionary jurisdiction under 28 U.S.C. § 2201 is whether a declaratory judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the judicial proceeding. Aetna Cas. Sur. Co., 74 F.3d at 687; Willenbrink, 924 F.2d at 105; Omaha Property, 923 F.2d at 447-48; Mercier, 913 F.2d at 277; Grand Trunk W. R.R. Co. v. Consolidated Rail Corp., 746 F.2d 323, 326 (6th Cir. 1994).
In the Sixth Circuit, the following factors guide the exercise of judicial discretion under 28 U.S.C. § 2201: (1) whether the declaratory action would settle the controversy; (2) whether the declaratory action would serve a useful purpose in clarifying the legal relations in issue; (3) whether the remedy of a declaratory judgment is being used merely for the purpose of "procedural fencing" or to provide an arena for a race to the courthouse to obtain res judicata; (4) whether the use of a declaratory action would increase friction between federal and state courts, and encroach upon state court jurisdiction; and (5) whether there is an alternative remedy that is superior or more effective. Northland Ins. Co. v. Stewart Title Guar. Co., 327 F.3d 448, 453 (6th Cir. 2003); Foundation For Int. Design, 244 F.3d at 526; Scottsdale Ins. Co., 211 F.3d at 968; Aetna Cas. Sur. Co., 74 F.3d at 687; Willenbrink, 924 F.2d at 105; Omaha Property, 923 F.2d at 448; Grand Trunk, 746 F.2d at 326.
The term "procedural fencing" means sharp litigation tactics by which a party seeks an alternate forum in a race for res judicata. Examples of procedural fencing include racing to the courthouse and making an end run around one court's authority to another court. Columbus Community Cable Access, Inc. v. Luken, 923 F. Supp. 1026, 1031-32 (S.D.Ohio 1996); Richmond Steel, Inc. v. Legal Gen. Assurance Soc'y Ltd., 799 F. Supp. 234, 238 (D.P.R. 1992).
The fourth factor involves concerns about comity and federalism. In determining whether the exercise of declaratory judgment jurisdiction would increase the friction between the federal and state courts, the Sixth recognizes three factors that should be considered in light of Wilton, 515 U.S. 277. They are: (1) whether the underlying factual issues are important to an informed resolution of the case; (2) whether the state trial court is in a better position to evaluate those factual issues than is the federal court; and (3) whether there is a close nexus between the underlying factual and legal issues and state law and or state public policy, or whether federal common law or federal statutes dictate a resolution of the declaratory judgment action. Northland Ins. Co., 327 F.3d at 454; Employers' Fire Ins. Co. v. Danis Building Construction Co., 229 F.3d 1151 (Table, text in 2000 WL 1234321, *2 (6th Cir. Aug. 22, 2000)); Scottsdale Ins. Co., 211 F.3d at 968.
The Court has considered all of these factors and concludes that they weigh in favor of this Court exercising its discretionary jurisdiction to render a declaratory judgment in this case. The Court is guided by the Sixth Circuit's recent decision in Northland Ins. Co., 327 F.3d 448. A declaratory judgment would settle the controversy regarding the scope of insurance coverage in the policy issued by AMH to AAU, and resolve the dispute whether AMH has duty to defend Daniel in the Cantrell lawsuit. A declaratory judgment issued by this Court would serve a very useful purpose by clarifying the legal relations at issue here. Furthermore, a declaratory remedy is not being used here merely for procedural fencing or to help AMH win a race for res judicata. A declaratory judgment would not increase friction between federal and state courts, nor would it improperly encroach upon state court jurisdiction. There is no alternative remedy in state court in the Cantrell lawsuit that would be superior or more effective.
The Cantrell lawsuit pending in the Circuit Court of Bradley County is not exactly parallel to the instant case. The Cantrell lawsuit does not involve all of the same issues, legal claims, and parties that are involved in the case at bar. AMH is not a party to the Cantrell lawsuit. In the Cantrell lawsuit, there is no claim or controversy about whether the insurance policy issued by AMH provides liability coverage to AAU and Daniel. The state court in the Cantrell lawsuit is not in a posture to adjudicate the insurance coverage issues, and the state court cannot provide a better or more effective alternative remedy. See Northland Ins. Co., 327 F.3d at 453-54.
Accordingly, this Court will exercise its discretionary jurisdiction over the complaint by AMH seeking a declaratory judgment against AAU and Daniel.
II. Plaintiff's Motion For Judgment On Pleadings Against Defendant Daniel
AMH moves pursuant to FED. R. CIV. P. 12(c) for judgment on the pleadings as to Daniel. [Court File No. 12]. Daniel has not filed a response and does not oppose the motion. The motion by AMH has merit.
A. No Insurance Coverage For Daniel
The policy provides insurance coverage for sums that the insured becomes legally obligated to pay to another as a result of bodily injury, property damage, or personal injury. The claims and demands for monetary damages brought against Daniel in the Cantrell lawsuit arise out of crimes and torts intentionally committed by Daniel against Shenna Cantrell. It is alleged that Daniel sexually abused and molested Shenna. The allegations, tort claims, and demands for monetary damages asserted against Daniel in the Cantrell lawsuit are simply not covered by the insurance policy AMH issued to AAU.
In Indiana, clear and unambiguous language in an insurance policy must be construed by the Court and given its plain and ordinary meaning. Federal Ins. Co. v. Stroh Brewing Co., 127 F.3d 563, 566 (7th Cir. 1997); National Fire and Cas. Co. v. West, 107 F.3d 531, 534-35 (7th Cir. 1997); American States Ins. Co. v. Kiger, 662 N.E.2d 945, 947 (Ind. 1996). The policy issued by AMH explicitly excludes coverage for expected or intended injuries. The policy provides that it does not apply to bodily injury "expected or intended from the standpoint of the insured." Assuming arguendo that Daniel qualifies as an insured under the policy, an assumption that AMH strenuously denies, the clear and unambiguous exclusion in the policy for bodily injury "expected or intended from the standpoint of the insured" completely precludes Daniel from claiming he is an insured entitled to insurance coverage for the Cantrell lawsuit.
Daniel's intent to cause bodily injury may be established in two different ways. First, it can be established by showing that Daniel had the actual subjective intent to cause bodily injury to Shenna Cantrell. In the alternative, his intent to cause bodily injury can be inferred as a matter of law. National Fire, 107 F.3d at 536; Auto-Owners Ins. Co. v. Stroud, 565 N.E.2d 1093, 1095 (Ind.Ct.App. 1991). It is not necessary to hold a trial to determine whether Daniel had the actual subjective intent to harm or cause bodily injury to Shenna. In this case, Daniel's subjective intent is immaterial because he stands convicted of crimes involving the sexual abuse and molestation of a minor. Indiana law infers, as a matter of law, that convicted child molesters intend the harm they cause to their victims. Daniel's criminal acts of child sexual abuse, molestation, and statutory rape are inherently harmful to the victim, Shenna Cantrell. Under Indiana law, it is inferred from these criminal offenses that Daniel intended to harm Shenna and his subjective intent is irrelevant. National Fire, 107 F.3d at 536; Wayne Township Bd. of School Comm'rs v. Indiana Ins. Co., 650 N.E.2d 1205, 1208 (Ind.Ct.App. 1995); Wiseman v. Leming, 574 N.E.2d 327, 329 (Ind.Ct.App. 1991).
Moreover, the policy applies to a "bodily injury" only if it is caused by an "occurrence" as defined in the policy. The policy provides that the term "occurrence" means "an accident, including continuous or repeated exposure to substantially the same harmful conditions." The policy does not define what is an "accident." In the context of insurance coverage, Indiana law defines an accident to mean "an unexpected happening without an intention or design." Terre Haute First National Bank v. Pacific Employers Ins. Co., 634 N.E.2d 1336, 1338 (Ind.Ct.App. 1993); accord General Acc. Ins. Co. of America v. Gastineau, 990 F. Supp. 631, 635-36 (S.D.Ind. 1998); Wayne Township, 650 N.E.2d at 1208. Under Indiana law, the term "accident" is generally defined as a sudden, unexpected event. Fidelity and Guar. Ins. v. Everett I. Brown Co., 25 F.3d 484, 487 (7th Cir. 1994); Beckerman v. Gordon, 614 N.E.2d 610, 613 (Ind.Ct.App. 1993); Kerchner v. Kingsley Furniture Co., 478 N.E.2d 74, 76-77 (Ind.Ct.App. 1985).
Daniel's intentional torts of assault and battery predicated on his criminal acts of sexually abusing and molesting Shenna are not accidental in nature. An intentional act is not an "accident" as the term is used in the standard insurance policy definition of "occurrence." Fidelity and Guar. Ins., 25 F.3d at 488-89; State Farm Fire and Casualty Co. v. Henderson, 2002 WL 1354719, **2-3 (S.D.Ind. May 15, 2002). Consequently, the intentional acts of Daniel do not constitute an accidental "occurrence" covered by the insurance policy as far as Daniel is concerned. Cf. National Fire, 107 F.3d at 535-36; Fidelity and Guar Ins., 25 F.3d 484; Transamerica Ins. Servs. v. Kopko, 570 N.E.2d 1283 (Ind. 1991).
B. AMH Has No Duty To Defend Daniel
AAU has no duty to defend Daniel in the Cantrell lawsuit. Typically, an insurer has a duty to defend its insured against suits alleging facts that might arguably fall within the insurance coverage. Federal Ins. Co., 127 F.3d at 566. Under Indiana law, an insurer's duty to defend its insureds against suit is broader than the insurer's coverage liability or duty to indemnify. While the insurer does not have an unconditional duty to defend, the duty is expansive. Federal Ins. Co., 127 F.3d at 566; National Fire, 107 F.3d at 535; Gastineau, 990 F. Supp. at 633-34; Terre Haute First National Bank, 634 N.E.2d 1336, 1339; Wayne Township, 650 N.E.2d at 1208; Trisler v. Indiana Ins. Co., 575 N.E.2d 1021, 1023 (Ind.Ct.App. 1991). The issue whether AMH has a duty to defend Daniel is determined from reviewing the allegations contained in the complaint in the Cantrell lawsuit. Federal Ins. Co., 127 F.3d at 566; Gastineau, 990 F. Supp. at 633-34; Transamerica Ins., 570 N.E.2d at 1285.
Because the pleadings in the Cantrell lawsuit disclose that the intentional tort claims asserted there against Daniel are clearly excluded from insurance coverage under the policy issued by AMH to AAU, AMH is not required to provide a defense to Daniel. The underlying factual basis of the complaint against Daniel in the Cantrell lawsuit, even if proved true, cannot result in liability under the insurance policy. Therefore, AMH can properly refuse to defend Daniel in the state court litigation in the Cantrell lawsuit. Id.; Cincinnati Ins. Co. v. Mallon, 409 N.E.2d 1100, 1105 (Ind.Ct.App. 1980); see also Henderson, 2002 WL 1354719; Fid. Guar. Ins. Underwriters, 25 F.3d at 487-89 (holding insurer had no duty to defend or indemnify where underlying complaint alleged intentional conduct which was not an "accident" and not an "occurrence" under the insurance policy's terms); Allstate Ins. Co. v. Norris, 795 F. Supp. 272 (S.D.Ind. 1992) (no "accident" and no duty to defend where the insured intentionally fired several shots from a firearm in an attempt to pin down a man but struck passerby instead).
III. Conclusion
The motion by plaintiff AAU for judgment on the pleadings against defendant Daniel [Court File No. 12] will be GRANTED pursuant to FED. R. CIV. P. 12(c). The Insurance Policy No. GL51306-000 issued by AMH to AAU does not provide any insurance coverage to Daniel for the intentional tort claims asserted against him in the Cantrell lawsuit. AMH has no contractual obligation or duty under the insurance policy to provide a defense to Daniel in the Cantrell lawsuit in the state courts of Tennessee. This Court will enter a separate declaratory judgment in favor of AMH against Daniel.
The only matter that remains before the Court for adjudication is the plaintiff's complaint for declaratory judgment against defendant AAU.
DECLARATORY JUDGMENT
In accordance with the accompanying memorandum opinion, the motion by plaintiff American Modern Home Insurance Company for judgment on the pleadings against defendant Alden Joe Daniel, Jr. [Court File No. 12] is GRANTED pursuant to FED. R. CIV. P. 12(c).
This DECLARATORY JUDGMENT is entered in favor of plaintiff American Modern Home Insurance Company against defendant Alden Joe Daniel, Jr. pursuant to 28 U.S.C. § 2201. With regard to the Commercial Lines Insurance Policy No. GL51306-000 that plaintiff American Modern Home Insurance Company issued to the Amateur Athletic Union of the United States, Inc., the policy does not provide any insurance coverage to defendant Alden Joe Daniel, Jr. for the events, incidents, and acts which are the basis of the civil lawsuit styled Shenna L. Cantrell b/n/f Ellie Cantrell and Michael Cantrell, Circuit Court of Bradley County, Tennessee, Case No. V-01-301. Furthermore, plaintiff American Modern Home Insurance Company has no duty or obligation under the insurance policy to defend or provide a defense to Alden Joe Daniel, Jr. in said civil lawsuit in the courts of the State of Tennessee.
SO ORDERED.