Cincinnati Specialty Underwriters Insurance Company, The v. Priest Entertainment, Inc. et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CINCINNATI SPECIALTY
UNDERWRITERS INSURANCE CO.,
Plaintiff,
v. 	Case No. 25-2086-JWB
PRIEST ENTERTAINMENT, INC.
REED GODINET, and
TERRY PRIEST,
Defendants.
MEMORANDUM AND ORDER
This matter is before the court on cross-motions for summary judgment. (Docs. 37, 39.)
The motions are fully briefed and ripe for decision. (Docs. 38, 39, 40, 41, 43, 46, 47.) Plaintiff’s
motion for summary judgment is GRANTED (Doc. 37), and Defendant Reed Godinet’s motion
for summary judgment is DENIED (Doc. 39), for the reasons stated herein.
I. 	Facts
The following facts are stipulated or admitted for purposes of this order and are taken from
the parties’ summary judgment briefs. (Doc. 38 at 3–11; Doc. 39 at 6–10; Doc. 41 at 4–7.) Tate’s
on Moro is a bar/nightclub located in Manhattan, Kansas. 	(Doc. 38 at 3.) 	Tate’s is owned by
Defendant Priest Entertainment, Inc. (Id. at 4.) It is operated by Defendant Terry Priest. 	(Id.) It
contains an elevated stage for dancing. (Doc. 39 at 6.) This stage has a single entry and exit, a
stairway on one corner of the stage. (Id.) The remainder of the stage is surrounded by walls or
railings. (Id.) The single entry and exit violate the city code. (Id.) On the evening of December
11, 2021, or into the early morning hours of December 12, 2021, Defendant Reed Godinet was on
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stage at Tate’s and was shot and seriously wounded. 	(Doc. 38 at 3.) 	Prior to the shooting, the
shooter, Joshua L. Cummings, started an “altercation” on the stage. (Doc. 39 at 7.) He pulled out
a firearm and “waived it in the air and pointed it towards the crowd” causing people to panic and
flee. (Id.) The crowd “pushed and shoved” towards the only exit off the stage. (Id.) People were
trampled and had fallen. 	(Id.) 	Defendant Godinet attempted to disarm Cummings. 	(Id. at 8.)
Godinet was shot in the face and neck. (Id.) Multiple witnesses heard a few gun shots followed
by a pause of several seconds followed by more gun shots. (Id.) Cummings was eventually tackled
by a soldier in the U.S. Army. (Id. at 9.) But Cummings managed to struggle free and again “shot
Godinet in the abdomen while he was trapped against the stage’s railing.” (Id.)
Not surprisingly, Defendant Godinet sued Defendants Priest, Priest Entertainment, and
Cummings in Kansas state court for his injuries. 	(Doc. 38 at 3–4.) 	The complaint in the state
lawsuit advances claims against Cummings for assault and battery. (Id.) Cummings was arrested
and convicted of multiple criminal offenses for his conduct. (Id. at 4.)
The state lawsuit also alleges that Defendants Priest and Priest Entertainment were
“negligent in the hiring, training, supervision, and retention of its employees, agents, contractors,
and/or volunteers working on the night of the incident.” (Id. at 5.) Moreover, Priest Entertainment
allegedly “failed to maintain the premises in a reasonably safe condition by allowing firearms onto
the premises.” 	(Id. at 4.) 	Defendant Priest Entertainment apparently “failed to utilize metal-
detecting wands, failed to enforce a prohibition on firearms, failed to provide reasonable and
adequate security, failed to warn patrons of dangerous conditions, and failed to remedy dangerous
conditions related to firearms on the premises.” (Id. at 5.) The lawsuit also claims that the “stage
at Tate’s on Moro” was a dangerous condition “due to overcrowding and limited means of ingress
and egress.” (Id.) On the night of the incident, Godinet alleges that “Tate’s on Moro exceeded its
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maximum approved occupancy.” (Id.) Godinet further alleges that Defendants Priest and Priest
Entertainment had “actual and/or constructive notice of the alleged overcrowding and dangerous
condition of the stage” and “actual and/or constructive notice that patrons frequently entered Tate’s
on Moro while carrying firearms.” (Id.) According to Godinet, Tate’s “voluntarily undertook a
duty to provide security and keep firearms off the premises and breached that duty.” (Id. at 6.)
Plaintiff Cincinnati Specialty Underwriters Insurance Co. (hereinafter “Plaintiff” or
“Cincinnati”) is an insurer who issued a “Commercial General Liability Policy” to Priest
Entertainment that covered the period from May 23, 2021, to May 23, 2022. 	(Id.) 	The policy
provides certain coverages for “bodily injury and property damage liability” and for “personal and
advertising injury liability.” (Id.) In relevant parts the terms of the policy provide:
COVERAGE A - BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as
damages because of “bodily injury” or “property damage” to which this
insurance applies. We will have the right and duty to defend the insured against
any “suit” seeking those damages. However, we will have no duty to defend
the insured against any “suit” seeking damages for “bodily injury” or “property
damage” to which this insurance does not apply. We may, at our discretion,
investigate any “occurrence” and settle any claim or “suit” that may result. But:
(1) The amount we will pay for damages is limited as described in
Section III – Limits Of Insurance; and
(2) Our right and duty to defend ends when we have used up the
applicable limit of insurance in the payment of judgments or
settlements under Coverages A or B or medical expenses under
Coverage C.
No other obligation or liability to pay sums or perform acts or
services is covered unless explicitly provided for under
Supplementary Payments– Coverages A and B.
SECTION B – PERSONAL AND ADVERTISING INJURY LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay
as damages because of “personal and advertising injury” to which this
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insurance applies. We will have the right and duty to defend the insured
against any “suit” seeking those damages. However, we will have no duty
to defend the insured against any “suit” seeking damages for “personal and
advertising injury” to which this insurance does not apply. We may, at our
discretion, investigate any offense and settle any claim or "suit' that may
result. But:
(1) The amount we will pay for damages is limited as described in
Section III - Limits Of Insurance; and
(2) Our right and duty to defend end when we have used up the
applicable limit of insurance in the payment of judgments or
settlements under Coverages A or B or medical expenses under
Coverage C.
No other obligation or liability to pay sums or perform acts or
services is covered unless explicitly provided for under
Supplementary Payments - Coverages A and B.
(Id. at 6–7.) This coverage is limited by “terms, conditions, limitations, and exclusions.” (Id. at
6.) 	One exclusion to the policy’s coverage is the “Assault or Battery Exclusion with Limited
Optional Coverage.” (Id.) This exclusion reads:
ASSAULT OR BATTERY
This insurance does not apply to “bodily injury”, “property damage” or
“personal and advertising injury” arising out of:
1. An actual or threatened assault or battery whether caused by or at the
instigation or direction of any insured, their employees, patrons or any
other person;
2. The failure of any insured or anyone else for whom any insured is
legally responsible to prevent or suppress assault or battery; or
3. The failure to provide an environment safe from assault or battery,
including but not limited to the failure to provide adequate security, or
failure to warn of the dangers of the environment that could contribute to
assault or battery; or
4. The failure to render or secure medical treatment or care necessitated by
any assault or battery; or
5. The negligent investigation or reporting or failure to report any assault
or battery to proper authorities; or
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6. The negligent:
a. Employment;
b. Supervision;
c. Training;
d. Retention;
of a person for whom any insured is or ever was legally responsible and
whose conduct would be excluded by the ASSAULT OR BATTERY
exclusion above.
(Id. at 8–9.) By way of the operation of other language in the agreement, the practical effect of
the exclusion is that Cincinnati will only pay out a maximum of $100,000 per occurrence to cover
liabilities caused by assault or battery but will pay out a maximum of $1,000,000 per occurrence
to cover injuries arising from other occurrences. (Id. at 9, 11.) Cincinnati is also entitled to deduct
the costs of its legal defense on behalf of the insured from the amount of coverage. (Id. at 9–10.)
Defendant Godinet maintains that his asserted claims in the state court action entitle him
to the higher, $1,000,000 coverage limit, unbound by the assault or battery exclusion. (Id. at 11.)
By contrast, Cincinnati contends that the $100,000 limit of the assault or battery exclusion applies
to Godinet’s claims. 	(Id.) 	On February 19, 2025, Plaintiff Cincinnati filed this declaratory
judgment action under the Declaratory Judgment Act, as codified at 28 U.S.C. §§ 2201–02, seeking
clarification of the parties’ rights under the insurance agreement before the state court lawsuit
proceeds further. 	(Doc. 1 at 1.) 	This court earlier rejected Defendants’ attempt to dismiss this
action for lack of jurisdiction. 	(Doc. 27.) 	With only legal issues remaining and fully briefed
summary judgment motions from Plaintiff and Defendant Godinet, this court is prepared to rule.
For the reasons explained below, Plaintiff’s motion for summary judgment is granted, and
Defendant Godinet’s is denied.
II. 	Standard
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Summary judgment is appropriate if the moving party demonstrates that 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). “[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–
48 (1986). “A fact is material if, under the governing law, it could have an effect on the outcome
of the lawsuit. A dispute over a material fact is genuine if a rational jury could find in favor of the
nonmoving party on the evidence presented.” Doe v. Univ. of Denver, 952 F.3d 1182, 1189 (10th
Cir. 2020) (quoting Jones v. Norton, 809 F.3d 564, 573 (10th Cir. 2015)). Conclusory allegations
are not sufficient to create a dispute as to an issue of material fact. See Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). The court views the evidence and all reasonable inferences therefrom
in the light most favorable to the nonmoving party. LifeWise Master Funding v. Telebank, 374
F.3d 917, 927 (10th Cir. 2004).
In considering a motion for summary judgment, the facts set forth in the motion must refer
“with particularity to those portions of the record upon which” the moving party relies. D. Kan.
R. 56.1(a). “All material facts set forth in the statement of the movant will be deemed admitted
for the purpose of summary judgment unless specifically controverted by the statement of the
opposing party.” Id. To properly dispute a proposed statement of material fact, the opposing party
must “refer with particularity to those portions of the record upon which the opposing party relies.”
D. Kan. R. 56.1(b)(1). Failure to properly controvert a proposed fact that is properly supported
will result in a determination that the fact is admitted. 	Coleman v. Blue Cross Blue Shield of
Kansas, Inc., 287 F. App’x 631, 635 (10th Cir. 2008) (finding that the “district court was correct
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to admit all facts asserted in [the movants] summary judgment motion that are not controverted by
a readily identifiable portion of the record.”) (internal quotation and citation omitted).
III. 	Analysis
The parties’ summary judgment motions ask the court to resolve how the insurance
coverage agreement applies to Defendant Godinet’s state claims. (Docs. 37, 39.) But Defendant
Godinet also asserts that the clause of the insurance policy that reduces coverage by the amount of
costs incurred while defending the insured is against Kansas public policy and should therefore be
voided by this court. The court addresses each argument in turn.
A. 	The Agreement
Cincinnati argues that the assault or battery exclusion limits Godinet’s possible recovery
to $100,000. (Doc. 38 at 14.) In support of this argument, it relies on the language of the exclusion
which they say applies to any injury that “arise[s] out of an assault and battery.” 	(Id. at 15.)
Defendant Godinet disagrees and makes several arguments that under the language of the
agreement, and Kansas law, his claims are not covered by the assault or battery exclusion. (Doc.
43 at 5–12; Doc. 39 at 11–22).
1. 	Plain Meaning
The court starts with the plain meaning of the agreement’s language. The relevant language
reads:
ASSAULT OR BATTERY
This insurance does not apply to “bodily injury”, “property damage” or
“personal and advertising injury" arising out of:
1. An actual or threatened assault or battery whether caused by or at the
instigation or direction of any insured, their employees, patrons or any
other person;
2. The failure of any insured or anyone else for whom any insured is
legally responsible to prevent or suppress assault or battery; or
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3. The failure to provide an environment safe from assault or battery,
including but not limited to the failure to provide adequate security, or
failure to warn of the dangers of the environment that could contribute to
assault or battery; or
4. The failure to render or secure medical treatment or care necessitated by
any assault or battery; or
5. The negligent investigation or reporting or failure to report any assault
or battery to proper authorities; or
6. The negligent:
a. Employment;
b. Supervision;
c. Training;
d. Retention;
of a person for whom any insured is or ever was legally responsible and
whose conduct would be excluded by the ASSAULT OR BATTERY
exclusion above.
(Doc. 38 at 8–9.) 	Because this list does not “expressly . . . exclude claims for bodily injuries
arising from premises liability, negligent construction, entrapment or similar harms”, Defendant
Godinet posits the policy does not reach such claims. (Doc. 43 at 11–12.) Plaintiff disagrees, and
so does this court. (Doc. 46 at 4.) The court notes at the outset that, despite the enumerations, the
exclusion is written in very broad terms. The first part of the clause reads “This insurance does
not apply to ‘bodily injury’, ‘property damage’ or ‘personal and advertising injury’ arising out of
[. . . .]” (Doc. 38 at 8-9) (emphasis added). The phrase “arising out of” already conveys a sense
of breadth as it signals a universe broader than just the actual assault or battery itself.
Second, the third enumeration under the assault or battery clause is also expansive and
appears to squarely encompass Godinet’s claims. It reads: “[t]he failure to provide an environment
safe from assault or battery, including but not limited to the failure to provide adequate security,
or failure to warn of the dangers of the environment that could contribute to assault or battery[.]”
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(Id.) (emphasis added). Godinet claims that dangers within Tate’s on Moro at least contributed to
his injuries. (Doc. 39 at 18–19.) The construction of the stage and limited access to exits are cited
as causes of those injuries. 	(Id.) 	These claims are covered by the third enumeration. 	That
enumeration indicates that the assault or battery exception will apply to claims that arise out of
conditions within the insured environment that “could contribute” to assault or battery “including
but not limited to” failure to provide security or failure to warn of dangerous conditions. (See id.)
This language, particularly the emphasized portions above, is on its face more than sufficient to
cover Godinet’s claims.
Defendant Godinet also argues that this language is readily distinguishable from other
clauses addressed by the Kansas Supreme Court because the “policy does not contain” a clearer
modifying phrase such as “out ‘of any act or omission in connection with the prevention or
suppression of an assault or battery.’” (Doc. 43 at 10) (quoting First Fin. Ins. v. Bugg, 962 P.2d
515, 523 (Kan. 1998)). Cincinnati’s policy merely states that the insurance does not cover bodily
injury “arising out of” several different specifically enumerated kinds of harm relating to assault
and battery. 	(Id.) 	But as explained above, these enumerations are written broadly enough to
encompass Defendant’s claims.
2. 	Nature of the Claims
Still, Defendant Godinet advances a theory based on Kansas case law, that insurance policy
exclusions must be “narrow[ly] construct[ed].” (Doc. 39 at 14) (citing Crist v. Hunan Palace, Inc.,
89 P.3d 573, 575 (Kan. 2004). 	“Generally, exceptions, limitations, and exclusions to insurance
policies require narrow construction on the theory that the insurer, having affirmatively expressed
coverage through broad promises, assumes the duty to define any limitations on that coverage in
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clear and explicit terms.” Crist, 89 P.3d at 575 (quoting Marquis v. State Farm Fire & Cas. Co.,
961 P.2d 1213 (1988) (internal quotation marks omitted)).
This narrow tailoring, Defendant argues, should lead the court to hold that the assault or
battery exclusion is inapplicable to Godinet’s claims. But Plaintiff marshals case law of its own,
and upon review, the court finds that Plaintiff’s case law is more clearly applicable to the instant
case. Plaintiff repeatedly invokes the Kansas Supreme Court’s decision in Bugg. (Doc. 38 at 15–
17.) The facts of Bugg greatly resemble those here.
In Bugg, patrons of a bar were shot. 	962 P.2d at 517. 	The patrons sued the bar for
negligence for “(a) firing a gun in a crowded tavern, (b) failing to have exits clearly marked within
the tavern, and (c) failing to properly protect patrons from an assailant.” Id. at 518. Like here, the
bar’s insurer issued a general policy with exclusions, to include an assault or battery exclusion. Id.
The exclusion covered “bodily injury, property damage, or personal injury” . . . “[a]rising out of
assault or battery, or out any act or omission in connection with the prevention or suppression of
an assault or battery.” 	Id. (internal quotation marks omitted). 	The court held that the policy
exclusion applied to the bar patrons’ claims. 	Id. at 527. 	In so doing, it made several key
observations about the state of the law that apply directly to this case.
As here, the plaintiffs in Bugg raised claims of negligence. Id. at 518. The Kansas Supreme
Court expressly rejected the argument that by pleading negligence, the plaintiffs could avoid the
assault or battery exception because assault and battery are intentional torts. Id. at 527. “Courts
analyzing this issue have consistently held that the theory of liability is irrelevant when the injuries
arose out of an assault and battery. Thus, the negligence claims do not affect the applicability of
the assault and battery exclusion.” 	Id. at 526. 	The Bugg court examined cases from other
jurisdictions as well as its own in reaching this conclusion.
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Defendant Godinet objects to Bugg and points to a case he claims is more analogous: Crist,
89 P.3d at 573. Defendant cites Crist because it construed the policy exclusions to an automobile
insurance policy narrowly. 	Id. at 575. 	In that case, a delivery driver for Hunan Palace struck
Crist’s vehicle. Id. The plaintiff sued Hunan and the driver for negligent operation of a vehicle
and negligent training and supervision. Id. The insurance policy exclusion read: “This insurance
does not apply to . . . ‘Bodily injury’ or ‘property damage’ arising out of the ownership,
maintenance, use or entrustment to others of any aircraft, ‘auto’ or watercraft owned or operated
by or rented or loaned to any insured. Use includes operation and ‘loading or unloading.’” Id. at
576–77. The lower court had held that earlier precedents compelled that this exclusion does not
cover negligence claims because “the theory of liability rather than the cause of the accident
governs coverage.” Id. at 576 (internal quotation marks omitted). After an exhaustive review of
the court’s precedents on the matter, the Kansas Supreme Court affirmed this holding. Id. at 579–
80. Defendant Godinet contends that this court should follow the same logic as the Crist court.
But a closer reading of Crist reveals an analysis that actually offers some support to
Plaintiff rather than Defendant Godinet. 	In reaching its holding, the Kansas Supreme Court
surveyed its precedent in this area, to include Plaintiff’s marquee case, Bugg. Id. at 577-79. The
court looked to the same precedent as the lower court, Marquis, 961 P.2d at 1213, to identify the
rule that “the theory of liability rather than the cause of the accident governs coverage.” Crist, 89
P.3d at 577. 	In Crist, the court addressed a request to overturn Marquis, which was a closely
decided case and sparked a “comprehensive” dissent. Id. at 578. The court recognized that the
rule that Marquis and Crist rely upon had been considerably distinguished by other cases. Id. at
578-79. 	Indeed, the court recognized that its rule in Marquis and Crist was arguably in conflict
with the rule in Bugg. Id. at 579 (“Justice Six opined that the Upland rule had not been consistently
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followed in Kansas, citing Bugg.”). The Kansas Supreme Court ultimately declined to resolve the
conflict in Crist on stare decisis grounds. Id. at 579. But its holding seemingly confined the rule
to automobile cases. Id. at 580 (“For many years the law in Kansas has been clear that an insurance
exclusion for damage or injury arising from an automobile will not exclude a claim based upon
negligent supervision.”) (emphasis added).
In any case, Bugg is not overruled, and it is clearly the more factually analogous case to
the one at bar. Moreover, the Crist court’s recognition of the difference between Crist and Bugg
implies that the holding and rationale of each should be closely tied to their facts. Given that Bugg
is the more analogous case, the court will follow the guidance therein: what matters is the cause
of the injury not the theory of liability advanced by the claimant. 962 P.2d at 527 (“Regardless of
the language of the allegations, the original cause of the harm arose from an alleged assault and
battery.”) (quoting Terra Nova Ins. Co., Ltd. v. Thee Kandy Store, 679 F. Supp. 476, 478 (E.D. Pa.
1988)). And moreover, the Crist court points towards other authorities that support the Bugg rule.
See State Farm Ins. Co. v. Gerrity, 968 P.2d 270, 272–73 (Kan. Ct. App. 1998) (“But in ignoring
the negligence claims made by the plaintiff in [Bugg], our Supreme Court reasoned that theories
of liability are irrelevant when injuries occur from intentional acts. Therefore, an appellate court
should not look to the specific theories of liability alleged but to the underlying cause of the
injuries.”). For these reasons, the court rejects Defendant Godinet’s attempts to plead causes of
action around the policy exclusion.
3. 	Causation
A third argument advanced by Defendant Godinet is that a court has not yet determined
the cause of his injuries. (Doc. 43 at 8–9.) He argues that while Plaintiff contends that the “sole
cause” of his injury is from the shooting, the injuries he sustained are in fact partly the fault of
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Priest and Priest Entertainment because of their negligent conduct. (Id. at 8.) Godinet theorizes
that if the state court determines that the negligent construction of the stage is in part the cause of
his injuries then that could affect the application of the assault or battery exclusion. (Id.) But, as
Plaintiff explains, the court already rejected this argument in its order on Defendant’s motion to
dismiss. (Doc. 46 at 2.) See Cincinnati Specialty Underwriters Ins. Co. v. Priest Entertainment,
Inc., No. 25-2086-JWB, 2025 WL 2966138, at *3 (D. Kan. Oct. 21, 2025) (“The exclusion in the
policy is broadly worded to apply to anything ‘arising out of’ an assault or battery. While
Defendant argues that the court must resolve facts that will be developed in the state court action
in order to resolve the coverage question, the facts alleged in the state court petition do not allege
harms to Godinet that are separate and apart from the shooting. Based on the allegations, the court
can make a determination as to whether the coverage exclusion applies without resolving factual
disputes or intruding on the state court's fact finding.”).
For the same reasons as in the motion to dismiss, Defendant Godinet’s argument must fail
here as well. 	It is indisputable that without the shooting (the assault and battery) by Joshua
Cummings, this lawsuit does not exist at all. For the purposes of deciding how the insurance policy
applies, determining the precise breakdown of legal causation is unnecessary. See Bugg, 962 P.2d
at 522 (quoting another case that explained “the Texas court of appeals held that the assault and
battery exclusion contained in a restaurant’s insurance policy precluded coverage for claims made
by a couple attacked by an unknown assailant in the parking lot of the restaurant because the
plaintiffs would never have brought the lawsuit absent the assault and battery committed by the
unknown assailant.”) (emphasis added) (quoting Acceptance Ins. Co. v. Walkingstick, 887 F. Supp.
958, 962 (S.D. Tex. 1995)). So too here.
4. 	Comparative Fault
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Finally, and relatedly, Defendant Godinet argues that at this stage, a rule applying the
policy exclusion to his claims would not consider the Kansas comparative fault framework, which
can allocate the responsibility for harms across multiple defendants. 	(Doc. 43 at 4–8.) 	But his
argument does not follow. First, Godinet claims that by deciding the exclusion question here “this
court [would] end any inquiry into the cause of Godinet’s injuries” and thus preclude a division of
liability between the shooting and Priest’s alleged negligence. (Id. at 5.) In support, Godinet cites
cases for the proposition that tortfeasors cannot use comparative fault to “eliminate” a tortfeasor’s
liability. (Id.) This argument puzzles the court.
Cincinnati has not invoked comparative liability, and moreover, Cincinnati is not seeking
to “eliminate” liability. Rather, Cincinnati is seeking a declaration about how much coverage it
owes to its insured and thus to Defendant Godinet. One could argue that Cincinnati is attempting
to “eliminate” potentially greater liability, but that obfuscates the true nature of the action.
Cincinnati is an insurer attempting to enforce the terms of its agreement. 	And, according to
Godinet, Plaintiff “tendered the $100,000 Limited Optional Coverage limit to Godinet but refused
to tender any amount under the general liability portion of the policy under Section A(1), citing
the Assault or Battery exclusion. Godinet rejected the offer.” 	(Doc. 39 at 4.) 	This is hardly
elimination, and certainly not the kind of avoidance that attempts to take advantage of comparative
fault principles. Godinet’s assertion that his injuries “did not arise solely from assault and battery”
may be true, but that is not the question before the court. (Doc. 43 at 8.) The court is not holding
that the only cause of Godinet’s injuries was assault and battery, but instead that Godinet’s injuries
clearly arise out of an assault and battery (regardless of the precise division of liability) which is
the relevant question under Kansas law and the Cincinnati policy. 	Bugg, 962 P.2d at 526–27.
Without the assault and battery, the parties are not before this court or the state court. 	And, as
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Plaintiff points out, Kansas had comparative fault principles when its Supreme Court decided
Bugg. (Doc. 46 at 3) (citing Brown v. Keill, 580 P.2d 867, 876 (Kan. 1978)). This court is not
inclined to contravene the Kansas Supreme Court on the applicability of the state’s comparative
fault framework to cases like the instant one.
B. 	Public Policy
Perhaps anticipating the above result, Defendant Godinet has also moved this court to void
as against public policy, the clause of the agreement that enables Cincinnati to deduct its defense
costs from any coverage owed. 	(Doc. 39 at 22.) 	Godinet contends that because of the legal
expenses in this case, if the clause is applied, Defendant Priest will have no coverage left at all,
and Defendant Godinet will be unable to recover. 	(Id. at 22–23.) 	But Godinet does not cite a
single Kansas case that alters an analogous insurance agreement. (Id. at 22–24.) Instead, he cites
legislation and cases from other states and says Kansas should follow suit.
In fact, Godinet’s argument is completely unwound by the one Kansas law he does cite:
K.S.A. § 40-3107(e). This law mandates automobile insurers exclude defense costs from policy
coverage. (Id. at 24.) But the fact that the Kansas legislature is aware of such exclusions and has
chosen to only enact them in the automobile context weighs heavily against this court’s judicial
imposition of a similar requirement on a different category of insurers.
In his reply brief, Godinet argues for the first time that K.S.A. § 40-2404(1)(a), which
prohibits unfair practices in insurance, is what counsels voiding the clause. According to Godinet,
Defendant Priest “could never reasonably expect” that the coverage used to insure him would be
“swallowed up by attorney fees and costs at such a rate and to such an extent that the coverage
would completely evaporate prior to trial—not only leaving Priest without representation during a
multi-day jury trial, but leaving him without any financial protection whatsoever when facing a
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substantial judgment.” (Doc. 45 at 4–5.) But the court is unwilling to say that the plain language
of a major provision of an insurance agreement is “unfair” or “deceptive” based only on
Defendant’s say so. K.S.A. § 40-2404. The coverage of defense costs is a benefit which Priest
has received as part of his bargain with Cincinnati. Even if Cincinnati has spent the $100,000 of
coverage on litigation, that’s $100,000 that Priest did not spend. 	After reviewing the specific
insurance practices that K.S.A. § 40-2404 deems unfair, the court does not view the deduction
clause as objectionable under the statute.
IV. 	Conclusion
For the foregoing reasons, Plaintiff’s motion for summary judgment (Doc. 37) is
GRANTED and Defendant Godinet’s motion for summary judgment (Doc. 39) is DENIED.
IT IS SO ORDERED. Dated this 1st day of May, 2026.
s/ John W. Broomes
JOHN W. BROOMES
CHIEF UNITED STATES DISTRICT JUDGE
Case 2:25-cv-02086-JWB-GEB Document 48 Filed 05/01/26 Page 16 of 16