Homesite Insurance Company of the Midwest v. Fitzpatrick et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO.: 1:25-CV-00139-HBB
HOMESITE INSURANCE COMPANY
OF THE MIDWEST PLAINTIFF
VS.
JULIAN FITZPATRICK, et al DEFENDANT
MEMORANDUM OPINION AND ORDER
Homesite Insurance Company of the Midwest (“Homesite”) has moved for summary
judgment at DN 26. The Defendants have not filed a Response, and their time for doing so has
expired.
The Court adopts Homesite’s statement of facts as unopposed:
Homesite issued a homeowners’ insurance policy to Julian and Tracy Fitzpatrick
covering their home located at 211 Lowe Drive, Bowling Green, Kentucky 42103,
with a policy number 36667880 (the “Homeowners’ Policy” or “Policy”). (DN 1 at
#3, ¶ 11; DN 6 at #80 ¶ 2; DN 10 at #94 ¶ 11.) The Policy provides for personal
liability coverage but excludes “Bodily injury . . . arising out of or in connection
with a ‘business’ . . . engaged in by an ‘insured’, whether or not the ‘business’ is
owned or operated by an ‘insured’ or employs an ‘insured’.” (DN 1-1 at #32; DN 6
at #80 ¶ 2; DN 10 at #94 ¶¶ 11–16.) “Business” includes any activity for
compensation or profit. (DN 1-1 at #44; DN 6 at #80 ¶ 2; DN 10 at #94–95 ¶¶ 11–
16.)
On December 9, 2024, Robert Madding filed suit in Warren Circuit Court, Civ.
Action No. 24-CI-01874, against, inter alia, Julian Fitzpatrick d/b/a The Pit Stop
Bar & Grill (the “Underlying Suit” or “Underlying Complaint”). (DN 1 at #5 ¶ 17;
DN 10 at #95 ¶ 17.) The Underlying Complaint alleges that Fitzpatrick owned and
operated The Pit Stop, that The Pit Stop, through its agents, sold alcohol to an
intoxicated person that assaulted the plaintiff, and that The Pit Stop is liable under
dram shop and negligence theories arising from the bar’s operations. (DN 1-2 at
#48–54 ¶¶ 3, 10, 11–37.) The Underlying Complaint further alleges that The Pit
Stop “conducts business within Warren County, Kentucky.” (Id. at #48, ¶ 3.)
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(DN 26 at p. 2). Homesite argues that the policy in question excludes claims arising out of
operating a business, and in this instance it is beyond question, based upon the Defendants’
responses to discovery requests, that the Pit Stop Bar and Grill is a business operated by
Defendant Fitzpatrick and Madding’s claims arise as a consequence of that business
operation. Homesite seeks declaration that the policy affords no coverage for Madding’s
claim and, further, that Homesite is not obligated to defend the Fitzpatrick and The Pit Stop
Bar and Grill against his claim.
As noted, the Defendants have not filed a response in opposition to the motion.
Local Rule 7.1 provides in relevant part that: “Failure to timely respond to a motion may
be grounds for granting the motion.” LR 7.1(c). 	Nonetheless, the Court has considered
Homesite’s arguments, examined the policy provisions in question as well as the
Defendants’ discovery responses, and concludes that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law” under Fed. R. Civ.
P. 56(a).
WHEREFORE Homesite Insurance Company 	of the Midwest’s motion for
summary judgment, DN 26, is GRANTED and judgment is entered in favor of Homesite
Insurance Company of the Midwest. This is a final and appealable order and there is no
just cause for delay.
Copies: Counsel
October 8, 2026
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