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Talley v. Mustafa

Court of Appeals of Wisconsin, District I

April 5, 2017

Archie A. Talley, Plaintiff-Appellant,
Mustafa Mustafa, d/b/a Burleigh Liquor, a/k/a Burleigh Food Market and Adams Foods, LLC, Defendants, Auto Owners Insurance Company, Defendant-Respondent.

         APPEAL from an order of the circuit court for Milwaukee County, No. 2012CV7847 DANIEL A. NOONAN, Judge. Reversed and cause remanded.

          Before Reilly, P.J., Gundrum and Hagedorn, JJ.

          GUNDRUM, J.

         ¶1 Archie Talley appeals from an order granting Auto Owners Insurance Company's (Auto Owners') motion for summary and declaratory judgment and dismissing Auto Owners from this action. The circuit court determined Auto Owners does not owe Mustafa Mustafa or the other named defendants a duty of defense or indemnification in relation to an alleged altercation at Mustafa's business, Burleigh Food Market (the store), on July 24, 2009.[1] According to the court, the complaint and factual record indicate that if defendant "John Doe"-an alleged "agent[], employee[], or representative[]" of Mustafa-struck Talley, it was done intentionally, and because the injury to Talley was caused by an intentional act, there is no coverage under Mustafa's Auto Owners insurance policy.

         ¶2 We conclude the circuit court erred in granting summary and declaratory judgment to Auto Owners and dismissing it from this action. Talley's complaint alleged Mustafa negligently trained and supervised "John Doe, " who the parties subsequently identified as Keith Scott.[2] Based upon the language of the policy at issue, a reasonable insured in the position of Mustafa would expect to be covered for such a claim, whether founded upon a negligent or intentional underlying act by Scott. On a related matter addressed by the parties, we conclude there is a genuine issue of material fact as to whether Scott was an employee of Mustafa or otherwise had a special relationship with him such that Mustafa had a duty to train and supervise Scott with due care. We reverse and remand for further proceedings.


         ¶3 Talley filed a complaint against Mustafa and Mustafa's insurance company, Auto Owners, alleging that while Talley was at the store on July 24, 2009, Scott, an "agent[], employee[] or representative[]" of Mustafa, began a verbal altercation with Talley and then struck him twice, fracturing his jaw. Talley alleged Mustafa was negligent with regard to his "duty to properly train and supervise" Scott, and his breach of this duty resulted in Talley's injuries.

         ¶4 Following discovery, Auto Owners moved for declaratory and summary judgment on the basis that Scott's alleged injury-causing conduct did not qualify as an "occurrence" covered under the policy or, alternatively, that coverage was excluded because the injury to Talley was "expected or intended" and thus the intentional acts exclusion precluded coverage. The relevant facts from the summary judgment record are as follows.

         ¶5 In his deposition, Talley testified he would patronize or walk past the store almost daily for eight months prior to the July 24, 2009 incident. Scott, who had a "mouthful of gold" and was "not as tall" as 6'4½" Talley, would always be "doing something at the store." Talley observed Scott working in the kitchen/deli section of the store preparing food and writing the cost on the food containers, which containers were then to be taken to Mustafa at the cash register. Talley also observed Scott performing other tasks, including providing security, shoveling snow, mopping floors, stocking, helping with inventory, and cleaning- "the man was doing any and everything that someone that works in a store would do." Most of the time, Scott would wear his "normal street clothes"; however, he would wear a white apron and "food gloves" "when he was in the meat department."

         ¶6 When Talley walked into the store on July 24 holding the door open for an acquaintance, Scott was walking from the kitchen area "cuss[ing] out" Talley for having the door open too long because the air conditioning was on. Scott "ran up on" and stood next to Talley "look[ing] at me, talking crazy, and I simply looked him up and down and said, 'poor thing.'" At the time, Mustafa was "behind the cage"; Talley did not hear Mustafa say anything. Talley "g[o]t some beer, " and went to the cashier. Talley stated to his friend, "[T]hat's some bullshit." Scott then struck Talley in the face twice, causing him injuries.

         ¶7 Shakevia Winfory, Talley's daughter, provided deposition testimony that there was "a black guy" at the store with "gold teeth, " who was around 5'11" and 250 pounds, who would prepare and serve nachos to customers, as well as put the price on the nachos so customers could take them to the counter to pay. The man was in the store almost every time she went there, and she also observed him stocking shelves, putting away groceries, "helping customers with their WIC, " and "pack[ing] up their WIC products." Noting children sometimes stole from the store, Winfory testified the man "watch[ed] over the kids in the store" and occasionally told children they could not enter. She believed the man was an employee not a customer.

         ¶8 Geraldine Moore testified that for several months she would go into the store about twice a week, where she observed a "black guy" called "Goldy, " who was medium height, "stocky, " and had "gold in his mouth." She observed the man "stocking up" boxes, mopping the floor, and preparing nachos in the kitchen area. She heard "the owner" "maybe once or twice call him over to the counter."

         ¶9 Tammy Burks testified to observing a "stout" "black guy" in the store with "gold teeth" mopping, "putting beer up, " "putting people out of the store, " working behind the counter, and cooking on a restaurant-type grill. She also observed that "[w]hen the black guy was on the register, the Iranian guy was cooking." She had heard the man referred to as both "Keith" and "Goldy." She never believed the man to be a customer.

         ¶10 Sergeant Thomas Hines, of the Milwaukee Police Department, also provided deposition testimony. He testified he wrote a report regarding his investigation of the incident at the store, the report reflected his questioning of Mustafa, and, as he sat at his deposition, he had personal recollection of his conversation with Mustafa, which recollection comported with what he wrote in his report. Hines then read portions of the report, including that Mustafa told Hines he only knew Scott as "Keith, " but that Scott "often comes in to the store to help [Mustafa] out … with stocking and security." Mustafa told Hines he noticed Talley and Scott "exchange[] words" on July 24 but did not see Scott hit anyone. Hines left his phone number with Mustafa so Mustafa could have Scott call him. The next day a man representing he was Scott called and told Hines, among other things, that he did not "work" in the store "but helps out."

         ¶11 Hines also read portions of his report related to his review of video surveillance footage from July 24, stating he did have personal recollection, as he sat at the deposition, of the video footage he had directly observed. The footage showed Talley enter the store, engage in an argument with Scott, walk to the area with malt beverages, and then walk towards the front counter. It appeared Talley and Scott "inadvertently bumped into one another, " after which Scott punched Talley in the face. Talley ran to the exit door, and Scott walked over to him and punched him in the face a second time. Hines did not observe any items on Scott that a security guard might have. Hines further testified he was aware of no evidence Mustafa actually paid Scott, but that based on his experience, many stores in that district "employ individuals and pay them cash for helping out."

         ¶12 At his deposition, Scott testified he was 6'2" tall and 260 pounds and lived in Kentucky in 2009, but did not recall the month or year he moved down there. He stated he became familiar with Mustafa prior to moving to Kentucky because he would occasionally go into the store to buy items for a nearby diner where he worked. He testified he did not work for Mustafa in the store, knows Talley but has never punched him, was not in an altercation with him on July 24, 2009, and did not talk with police in July 2009.

         ¶13 After this testimony, Talley's counsel read to Scott the portions of

         Hines' police report described above that relate to Hines' questioning of Mustafa and review of surveillance video. Also from that report, counsel read that Scott informed Hines in a phone call that he does not work at the store but

helps out Mustafa from time to time because a lot of people come into the store and try to steal and cause other problems.
[Scott] stated that on the day of this incident the victim came into the store talking crazy and loud as usual. Scott stated that he told him to stop or he would have to leave. Scott stated that a few minutes later the victim bumped into him, causing him to feel threatened. He felt as though the victim was picking a fight with him, so he reacted to it and punched him in the face.
He … stated further that when he walked over to the exit door to lock it, the victim was standing in the doorway with the door open, making threats to come back and shoot up the store. Scott stated that he then punched the ...

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