ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

CA02-1325

MARJORIE WALKER, Individually and October 1, 2003

as Next Friend and Parent of Frederick Sykes

(Deceased) and as Personal Representative of AN APPEAL FROM GARLAND COUNTY

the Estate of Frederick Sykes (Deceased); CIRCUIT COURT

ONYX 1, INC.; MILDRED RUSSELL; and [NO. CV2001-769]

LESLIE EUGENE PRICE

APPELLANTS

v. HONORABLE TOM SMITHERMAN,

CIRCUIT JUDGE

FIRST FINANCIAL INSURANCE CO.

APPELLEE AFFIRMED

John Mauzy Pittman, Judge

This appeal is brought from a grant of summary judgment to appellee. The trial judge determined that, as a matter of law, appellee owed no coverage to appellant Onyx 1, Inc., a Hot Springs nightclub, or club owner Mildred Russell or employee Leslie Price, for the 1999 shooting death of Frederick Sykes on the club's parking lot.

On appeal, appellants argue that summary judgment was inappropriate. We disagree and affirm.

Onyx 1, Inc., was the named insured under a commercial general liability (CGL) policy issued by appellee. On October 23, 1999, Frederick Sykes, a minor, was shot and killed outside the club by Leslie Price, Mildred Russell's son-in-law. Sykes's mother, appellant Marjorie Walker, sued Onyx 1, Russell, and Price in Garland County Circuit Court, seeking compensatory and punitive damages for herself and her son's estate. The allegations in the complaint and the subsequent deposition of Mildred Russell establish that young Sykes had been in the club, even though he was underage. He exited the club and later attempted to return, but he was refused entry by Price, who was working at the club. Later, Price followed Sykes out to the parking lot and shot him. The complaint alleged that Russell knew or should have known that Price had prior felony convictions, yet she failed to make a proper background check before hiring him and failed to search Price for weapons on the night of the shooting, even though she regularly searched members and guests with a metal detecting wand.

On October 15, 2001, appellee filed suit in Garland County Circuit Court, seeking a declaration that it owed no defense or indemnity to Onyx, Russell, or Price under the CGL policy. Appellee subsequently filed a motion for summary judgment in which it argued, inter alia: 1) that the bodily injury to the decedent was not caused by an "occurrence" as defined by the policy; 2) that the policy excluded coverage for expected or intended injuries; 3) that the policy excluded coverage for injuries arising out of assault or battery; and 4) that the insureds failed to timely notify appellee of the incident and thus breached the policy conditions. The trial court granted summary judgment without stating the reason therefor. This appeal followed.

We have ceased referring to summary judgment as a "drastic" remedy. We now regard it simply as one of the tools in a trial court's efficiency arsenal; however, we only approve the granting of the motion when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the nonmoving party is not entitled to a day in court, i.e., when there is no genuine remaining issue of material fact and the moving party is entitled to judgment as a matter of law. Parkerson v. Lincoln, 347 Ark. 29, 61 S.W.3d 146 (2001). The burden of proving that there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed favorably to the party resisting the motion. Id. On appellate review, we determine if summary judgment was proper based on whether the evidence presented by the movant left a material question of fact unanswered. Id.

The issues in this case involve the construction of an insurance contract. The construction and legal effect of a written contract is a matter to be determined by the court, not the jury, except when the meaning of the language depends upon disputed extrinsic evidence. Rhodes v. Farmers Ins. Co., 79 Ark. App. 230, 86 S.W.3d 401 (2002). Where the terms of the policy are clear and unambiguous, the policy language controls. Id. Language is ambiguous when there is doubt or uncertainty as to its meaning or it is susceptible to two interpretations. Id. Where the language in an insurance policy is ambiguous, the court must adopt the interpretation that is favorable to the insured. Id. Language in an insurance policy should be construed in its plain, ordinary, and popular sense. Id.

With these standards in mind, we turn to the policy provisions at issue in this case. The coverage part of the CGL policy provides that the policy applies to bodily injury caused by an "occurrence." An "occurrence" is defined as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." The policy further provides, under an exclusion titled "Expected or Intended," that it excludes coverage for bodily injury "expected or intended from the standpoint of any insured" or "arising out of assault or battery, or out of any act or omission in connection with the prevention or suppression of an assault or battery." Appellants argue that summary judgment was inappropriate because the policy's "occurrence" provision is ambiguous and because the exclusions do not apply, or at least a fact question remains as to their applicability. Because we conclude that the facts of this case and the causes of action pled against the insureds are squarely within the assault or battery exclusion, we affirm the summary judgment on that basis without addressing the other issues presented.

It is clear that the bodily injury in this case arose out of an assault or battery, i.e., the shooting of the decedent by Leslie Price. Appellants argue that a fact question remains as to whether Price's shooting of the decedent was intentional. We disagree. First, we note that Price was convicted of second-degree murder in the death of Frederick Sykes, and his conviction was affirmed by the supreme court. Price v. State, 347 Ark. 708, 66S.W.3d 653 (2002). A second-degree murder conviction requires that the defendant "knowingly" cause the death of another person, meaning that the defendant is aware that it is practically certain that his conduct will cause such a result. Ark. Code Ann. § 5-2-202(2) (Repl. 1997). A criminal murder conviction has been held to operate as a bar to re-litigating the issue in a civil insurance case. See Zinger v. Terrell, 336 Ark. 423, 985 S.W.2d 737 (1999). Second, appellants' reliance on the deposition of Mildred Russell, wherein she stated that she had the feeling that the shooting was an accident, is not well-founded. Russell did not witness the shooting, nor does her deposition contain any basis for her supposition that the shooting was accidental. Thus, her testimony is merely speculative and conclusory, and insufficient to create a fact question.

As for the application of the exclusion to the conduct of Russell and Onyx 1, the exclusion precludes coverage for an act or omission "in connection with the prevention or suppression of an assault or battery." The allegations in the underlying complaint against Onyx and Russell for negligent hiring, negligent supervision, and failure to detect that Price carried a weapon, are in effect allegations that Russell and Onyx 1 failed to prevent the shooting. Thus, they fall within the assault or battery exclusion. See generally Terra Nova Ins. Co. v. Nanticoke Pines, 743 F. Supp. 293 (D. Del. 1990); First Fin'l Ins. Co. v. Bugg, 265 Kan. 690, 962 P.2d 515 (1998); Acceptance Ins. Co. v. Winning Concepts of Westport, Inc., 842 S.W.2d 206 (Mo. App. 1992); Hernandez v. First Fin'l Ins. Co., 106 Nev.900, 802 P. 2d 1278 (1990); Sphere Drake Ins. Co. v. Ross, 80 Ohio App. 3d 506, 609 N.E.2d 1284 (1992).

In light of the foregoing, we affirm the trial court's grant of summary judgment.

Affirmed.

Gladwin and Baker, JJ., agree.