United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
REBECCA GRADY JENNINGS, DISTRICT JUDGE
matter is before the Court on four Motions for Summary
Judgment. [DE 52, 53, 59, 61]. Responses, [DE 60, 62, 67,
69], and replies were filed, [DE 64, 68, 72]. Briefing is
complete, and these matters are ripe for adjudication. For
the reasons below, Live Nation Worldwide Inc.'s
(“Live Nation”) Motion for Summary Judgment on
Coverage Claim Against Secura Insurance
(“Secura”) [DE 59] is GRANTED,
Live Nation's Motion for Summary Judgment on Breach of
Contract Claim Against ESG Security (“ESG”) [DE
61] is DENIED, Secura's Motion for
Summary Judgment [DE 52] is DENIED, and
ESG's Motion for Summary Judgment [DE 53] is
Nation operates the Louisville Palace, which among other
things, is a concert venue. [DE 92, Am. Compl. at 1426,
¶1]. Live Nation contracted with ESG to provide crowd
control services for the Louisville Palace. [Id. at
1427, ¶6]. Live Nation and ESG entered into a Vendor
Services Agreement (“VSA”) detailing the
requirements of the relationship. [Id. at ¶ 7].
ESG's responsibilities included “direction and
control of the audience to deter any crowd
disturbances” for events being held at the Louisville
requires ESG to obtain and maintain certain insurance
coverage, including commercial general liability insurance of
at least one million dollars per occurrence as explained in
Section 3(A) of the VSA. [Id. at 1427, ¶ 7, DE
60-1 at §3(A)(ii)]. The VSA requires ESG to defend,
indemnify, and hold harmless Live Nation “from and
against any and all claims or loss arising out of any
violation of any law, rule, regulation or order, and from any
and all claims or liabilities, including reasonable
attorney's fees, for loss, damage or injury to persons or
property of whatever kind or nature arising from the acts or
omissions of Vendor” as explained in Section 4(A) of
the VSA. [DE 92 at 1428, ¶ 8]. ESG placed its insurance
for the applicable period through City Securities Insurance,
LLC (“City Securities”). [Id. at 1428,
¶ 9]. City Securities placed coverage with Secura.
[Id. at 1428, ¶ 10]. Live Nation purchased
another general liability policy with Starr Insurance, which
contained a retained limit of one million dollars. [DE 60 at
Live Nation and ESG were sued in the Jefferson County,
Kentucky in an action styled James Mark Hays, et al., v.
Live Nation Worldwide, Inc., et al., Jefferson County
Circuit Court, Action No. 13CI06424 (“Hays
Complaint”). [DE 92 at 1429, ¶ 14; DE 58-3,
Hays Complaint at 808]. The Hays Complaint
alleged injuries resulting from a fight between several
patrons during a Steve Miller Band concert at the Louisville
Palace. [DE 58-3]. ESG was performing crowd management
services for the concert. [DE 58-3 at 809, ¶ 4]. Live
Nation and the plaintiffs in the Hays Action reached
a confidential settlement before trial. [DE 92 at 1429,
refused to pay for Live Nation's defense costs and
indemnify Live Nation for the settlement in Hays.
[Id. at 1429, ¶ 16]. Live Nation filed the
present complaint (the “Complaint”) against
Secura Insurance, City Securities, and ESG Security, Inc.,
[DE 1] which they later amended (the “FAC”) [DE
92]. The FAC alleges breach of contract, bad faith, and
Unfair Claims Settlement Practices Act claims against Secura.
[DE 92 at 1431-33]. The FAC alleges breach of contract and
indemnification claims against ESG. [Id. at
1433-34]. The FAC also alleges negligence against City
Securities as respondeat superior. [Id. at
1435]. City Securities, ESG, and Secura answered. [DE 93, 94,
95]. In its answer, Secura made a counterclaim for a
declaratory judgment under 28 USC §2201 and FRCP 57, to
determine an actual controversy between Secura and Live
Nation. [DE 95 at 1471]. Live Nation answered the
counterclaim. [DE 98].
Nation, Secura, and ESG each filed motions for summary
judgment on the various claims. [DE 52, 53, 59, 61]. Responses
and replies were filed. [DE 60, 62, 64, 67, 68, 69, 72]. The
Court heard oral argument on the motions. [DE 101].
judgment is required when “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). The
moving party bears the burden of specifying the basis for its
motion and showing the lack of a genuine issue of material
fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). Once the moving party satisfies this burden, the
nonmoving party must produce specific facts showing a
material issue of fact for trial. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986). “Factual
differences are not considered material unless the
differences are such that a reasonable jury could find for
the party contesting the summary judgment motion.”
Bell v. City of E. Cleveland, 125 F.3d 855, 1997 WL
640116, at *4 (6th Cir. 1997) (citing Liberty Lobby,
477 U.S. at 252).
district court considering a motion for summary judgment may
not weigh evidence or make credibility determinations.
See Daugherty v. Sajar Plastics, Inc., 544 F.3d 696,
702 (6th Cir. 2008); see also Adams v. Metiva, 31
F.3d 375, 384 (6th Cir. 1994). The Court must view the
evidence and draw all reasonable inferences in a light most
favorable to the nonmoving party. See Williams
v. Int'l Paper Co., 227 F.3d 706, 710 (6th Cir.
2000). But the nonmoving party must do more than show some
“metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Instead, the nonmoving
party must present specific facts showing that a genuine
factual issue exists by “citing to particular parts of
materials in the record” or by “showing that the
materials cited do not establish the absence . . . of a
genuine dispute[.]” Fed.R.Civ.P. 56(c)(1); see also
Shreve v. Franklin Cty., Ohio, 743 F.3d 126, 131-32 (6th
Cir. 2014). “The mere existence of a scintilla of
evidence in support of the [nonmoving party's] position
will be insufficient; there must be evidence on which the
jury could reasonably find for the [nonmoving party].”
Liberty Lobby, 477 U.S. at 252.
56(c)(1) requires that a “party asserting that a fact .
. . is genuinely disputed must support the assertion by . . .
citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.”
all parties agree that this Court can decide the issues as a
matter of law on a motion for summary judgment. [DE 52-1 at
348; 53-1 at 737; 60 at 828-29]. Other courts, deciding
similar issues, have done so on summary judgment.
Crutchfield v. Transamerica Occidental Life Ins.
Co., 527 Fed.Appx. 339, 342 (6th Cir. 2013).
motions present three issues. First, whether the VSA required
ESG to purchase a policy on behalf of Live Nation on a
primary basis, and based on that determination, whether
Secura's obligation to Live Nation is satisfied on a
pro rata basis with Live Nation's Starr
Insurance Policy. Second, whether ESG's duty to indemnify
and defend under the VSA was limited to instances of
vicarious liability. Third, whether the policy that ESG
purchased from Secura met ESG's requirements under the
VSA. As discussed below, the Court ultimately need not decide
the last question. Secura concedes that if the Court
determines the VSA required ESG to purchase a primary basis
policy and ESG's liability was not limited to instances
of vicarious liability, then Secura would “owe that
obligation to its insured.” [DE 102, August 8, 2019
Transcript of Motion Hearing (“Tr.”) at
1883:4-84:15; 1923:8-16]. Thus, the Court only needs to
decide what the VSA required ESG to purchase.
The VSA is an unambiguous contract.
begin, before the Court can determine what the VSA requires,
it must first determine whether the VSA is ambiguous such
that the Court may look beyond the four corners of the
document to determine its meaning. “[A]n ambiguous
contract is one capable of more than one different,
reasonable interpretation.” Frear v. P.T.A. Indus.,
Inc., 103 S.W.3d 99, 106, n.12 (Ky. 2003) (quoting
Central Bank & Trust Co. v. Kincaid, Ky., 617
S.W.2d 32, 33 (1981)). Here, while disagreeing with the
meaning of some essential terms of the VSA, both parties
agree that the VSA is an unambiguous contract. As discussed
below, the VSA is unambiguous and there is only one
reasonable interpretation of its terms. Next the Court,
sitting in diversity, must apply state law in interpreting
the contract. Hayes v. Equitable Energy Res. Co.,
266 F.3d 560, 566 (6th Cir. 2001) (citing Klaxon Co. v.
Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). Here,
according to the VSA's terms, Kentucky law applies. [DE
60-1 at 853, §12].
Secura is obligated to Live Nation on a Primary
The VSA requires ESG to insure Live Nation on a Primary
requires ESG, the “Vendor, ” to maintain four
types of insurance. Section 3(A) lists each type of insurance
followed by a short description ...