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Volk v. Ace American Insurance Co.

United States Court of Appeals, Eighth Circuit

April 10, 2014

Linda Volk, as guardian of Andrew John Johnson, Plaintiff - Appellant
v.
Ace American Insurance Company, Defendant - Appellee

Submitted, February 12, 2014

Appeal from United States District Court for the District of Minnesota - Minneapolis.

For Linda Volk, as guardian of Andrew John Johnson, Plaintiff - Appellant: Richard William Curott, Milaca, MN.

For Ace American Insurance Company, Defendant - Appellee: Thomas M. Jones, Megan Kirk, COZEN & O'CONNOR, Seattle, WA; Steven J. Sheridan, FISHER & BREN, Minneapolis, MN.

Before SMITH, BEAM, and BENTON, Circuit Judges.

OPINION

BENTON, Circuit Judge.

Andrew J. Johnson, through his guardian Linda Volk, sought recovery from an insurance policy of ACE American Insurance Company. The district court[1] granted summary judgment to ACE, finding Johnson's claim excluded from the policy's general-liability coverage. Having jurisdiction

Page 828

under 28 U.S.C. § 1291, this court affirms.

Johnson, developmentally disabled, requires a personal care assistant. In November 2005, while supervised by an assistant from North Country Home Care, Inc., he was blinded in his left eye by a BB gun given to him by the assistant.

At the time of the injury, North Country had coverage through ACE for both general liability and professional liability. The policy was in effect until June 2006 (when North Country ceased operations). Johnson reported his claim to North Country's last president and then to ACE.

ACE denied coverage in August 2009, determining that the professional-liability coverage covered only claims made before the policy's termination. (Johnson no longer seeks recovery for professional-liability.) ACE also denied general-liability coverage, citing the exclusion for: " Any loss, cost or expense arising out of 'bodily injury' to your patients."

Johnson sued North Country in state court. After a Miller-Shugart settlement,[2] he received a judgment for $2,695,758.27. He then sued ACE in state court. ACE removed the case to federal court. The district court granted summary judgment to ACE, based on the patient exclusion. Volk v. ACE Am. Ins. Co ., No. 12-1065, 2013 WL 440210, *3 (D. Minn. Feb. 5, 2013). Johnson appeals.

This court reviews de novo a grant of summary judgment. Torgerson v. City of Rochester , 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). The question is whether the record, viewed most favorably to the non-moving party, shows no genuine issue of material fact and ...


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