United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
Plaintiff Stillwater Insurance Company seeks a declaratory judgment that coverage is not required under its insurance policy for the injuries that Defendant Deborah Dunn suffered at the hands of Dennis Arnold. Defendant has counterclaimed that, by denying coverage, Plaintiff breached its contract and its covenant of good faith and fair dealing. Plaintiff has moved for summary judgment on all claims (Doc. 27) and the motion is fully briefed. The Court will deny Plaintiff's motion.
On September 23, 2010, Dennis Arnold entered the Greenway Village Cocktail Lounge. He was a regular customer. Deborah Dunn, a bartender, was working that day. At some point, and under disputed circumstances, Arnold's hand made contact with Dunn's breast, causing extensive injuries. Dunn testified about the event at an evidentiary hearing:
I had begun to make four shots. A customer ordered four shots at the end of the bar, so I made four shots. I could only carry three, so I carried three to the end of the bar, and then I came back. The fourth one I was going to take was missing, so I had asked them [Dennis Arnold and another customer] - they were sitting directly in front of me - like, who took that? Where did the shot go?
And they were kind of laughing, so I bent down to make another shot that I needed to take down, and as I was scooping the ice into the container bending forward and grabbed the bottle, he - Dennis had reached over the bar and grabbed my right breast very hard.
Doc. 28-2 at 16; see also Docs. 28-1 at 22; 34-2 at 3-4; 43-1 at 4.
In a deposition, Dennis Arnold gave a strikingly different account of what happened:
Q. Can you tell us, in your own words, what you recall happening?
A. She had got a breast job, I guess you call it. I don't know what you call it. And she was taking people in the back room showing her new breasts.
Q. And did she show you her breasts?
A. She did.
Q. And after that, did there come a time when... she threw ice at you?
A. Yeah, when we were coming out of the room, she come [sic] around the corner and we were joking around ...