Madison Cnty. v. Evanston Ins. Co. (340 F. Supp. 3d 1232, 2018)

HERMAN N. JOHNSON, JR., UNITED STATES MAGISTRATE JUDGE

This civil action proceeds before the court on Defendant Advanced Correctional Healthcare, Inc.'s ("ACH") Motion for Summary Judgment (Doc. 89), Defendant Evanston Insurance Company's ("Evanston") Motion for Summary Judgment (Doc. 91), Evanston's Motion to Strike Exhibits in Support of Plaintiffs' Brief in Opposition (Doc. 106), and Plaintiffs' Request for Judicial Notice. (Doc. 116).

Based upon the following analyses, the court will GRANT Evanston's summary judgment motion; DENY ACH's summary judgment motion as to Plaintiffs' fraud, breach-of-contract, and indemnity claims; GRANT ACH's motion as to Plaintiffs' promissory estoppel claim; DENY Plaintiffs' Request for Judicial Notice; and DENY Evanston's Motion to Strike as moot.

STANDARD OF REVIEW

Pursuant to the Federal Rules of Civil Procedure, "[t]he court shall grant summary judgment if the movant shows 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. Rule 56(a). Defendants, as the parties seeking summary judgment, bear the initial responsibility of informing the district court of the basis for their motions, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which they believe demonstrate the absence of a genuine issue of material fact. Clark v. Coats & Clark, Inc. , 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ).

Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex , 477 U.S. at 322, 106 S.Ct. 2548. "In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 322-23, 106 S.Ct. 2548. In addition, a movant may prevail on summary judgment by submitting evidence "negating [an] opponent's claim," that is, by producing materials disproving an essential element of a non-movant's claim or defense. Id. at 323, 106 S.Ct. 2548 (emphasis in original).

A non-moving party demonstrates a genuine issue of material fact by producing evidence by which a reasonable fact-finder could return a verdict in its favor. Greenberg v. BellSouth Telecomms., Inc. , 498 F.3d 1258, 1263 (11th Cir. 2007) (citation omitted). The "court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Products, Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citations omitted). " 'Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.' " Id. (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves , 530 U.S. at 151, 120 S.Ct. 2097 (citation omitted). "That is, the court should give credence to the evidence favoring the nonmovant as well as that 'evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.' " Id. (citation omitted).

BACKGROUND

The undersigned sets forth the following facts for the summary judgment determination, drawn from the evidence taken in the light most favorable to Plaintiffs.

Plaintiff Blake Dorning ("Dorning") serves as the Sheriff of Madison County, Alabama ("County"). As Sheriff, Dorning's duties include (1) managing and operating the Madison County Jail ("Jail") and (2) providing services that tend to inmates' needs, including housing, food, and medical care. A November 2000 consent decree binds Dorning to provide constitutionally adequate medical care to the Jail's inmates, and Dorning utilizes funding from the County to comply with the consent decree's requirements. (Doc. 95-11 at 3-23). The County retains a statutory duty to fund the operation of the Jail through the Sheriff's budget, which includes funding at a necessary level to provide constitutionally adequate medical care.

In 2002, Dr. Norman Johnson ("Johnson") founded Advanced Correctional Health Care, Inc. ("ACH"). ACH provides healthcare in seventeen (17) states at approximately three-hundred (300) correctional facilities, serving as the largest privately-owned provider of correctional healthcare.

On July 29, 2005, Dorning and the County (collectively, "Plaintiffs") issued a Request for Proposals (RFP) to administer a comprehensive, healthcare services system at the Jail. (Doc. 95-9 at 27). The RFP indicated that the selected provider would serve as the sole supplier of healthcare services, and the coordinator of the healthcare delivery system, at the Jail. (Id. at 28). The RFP required that the selected provider carry "acceptable professional liability insurance providing coverage for claims including professional liability, negligence, and claims asserted pursuant to 42 U.S.C. § 1983... and name Madison County, the Sheriff, and their agents and employees as additional insureds." (Id. at 34). The RFP also required that the selected provider "indemnify, defend, and hold harmless the Sheriff, Madison County and any and all of their agents and employees from any claims arising from the delivery of healthcare services to inmates at the [Jail]." (Id. )

ACH and Plaintiffs Enter into a Health Services Agreement

ACH, along with several other companies, responded to the RFP. Although the County rejected ACH's first proposal, the County subsequently engaged ACH to negotiate a contract for the provision of healthcare at the Jail. The discussions between ACH and the County culminated in a Health Services Agreement in July 2006 ("Agreement"). (Doc. 94-2 at 8 through Doc. 94-3 at 12). The parties subsequently renewed the Agreement on May 1, 2009 (Doc. 95-11 at 33-49); May 1, 2012 (Doc. 95-11 at 51 through Doc. 95-12 at 18); and February 1, 2014. (Doc. 95-13 at 2-22).

All versions of the Agreement state that ACH would serve as the "sole supplier of healthcare services (including pharmacy) and coordinator of the healthcare delivery system" at the Jail. (Doc. 94-2 at 8; Doc. 95-11 at 33, Doc. 95-11 at 51; Doc. 95-13 at 2). The Agreement required ACH to "develop, manage and staff a comprehensive healthcare services system," yet Dorning retained responsibility for the Jail's operations. (Doc. 94-2 at 8-9; Doc. 95-11 at 33-34;

Doc. 95-11 at 51-52; Doc. 95-13 at 2-3). Additionally, the Agreement stated the following:

6. MINIMUM QUALIFICATIONS AND REQUIREMENTS: The Sheriff requires and ACH represents and warrants that it will meet certain minimum requirements. At a minimum, ACH will strictly comply with the following:

......

B. INSURANCE: ACH covenants to furnish, and it is understood and agreed that ACH shall procure at its own expense, and maintain in force throughout the entire term of this Agreement, including any renewal terms, General Liability, Professional Liability, and Medical Malpractice Insurance providing coverage for claims including professional liability, negligence, and claims asserted pursuant to 42 U.S.C. § 1983 in the amount of One Million Dollars ($1,000,000) per occurrence, and Three Million Dollars ($3,000,000) aggregate, insuring all claims that may arise out of the course and scope of this Agreement. Madison County and the Sheriff shall be additional named insureds on the aforesaid policies of insurance.

(Doc. 94-2 at 9; Doc. 95-11 at 34; Doc. 95-11 at 52; Doc. 95-13 at 3).

The Agreement accorded that "[a]s between insurance coverage provided by other sources to the above named entities and individuals and ACH's insurance coverage, ACH's insurance coverage shall be primary." (Id. ). The Agreement also required ACH to furnish the Madison County Administrator with a copy of ACH's insurance policy obtained in compliance with the Agreement. (Id. ) Furthermore, it provided that "all claims, litigation costs, attorney fees and any judgment or settlement money will be paid by ACH" should "ACH's insurance provider withdraw coverage or become insolvent." (Doc. 94-2 at 10; Doc. 95-11 at 35; Doc. 95-12 at 1; Doc. 95-13 at 4).

The Agreement also contained bilateral indemnification provisions:

D. INDEMNIFICATION:

ACH agrees to indemnify and save harmless Madison County, and the Sheriff, and their respective supervisors, agents, officers, employees, and officials from and against any and all liability, loss, damages, interest, judgments and liens growing out of any and all costs and expenses (including, but not limited to, reasonable attorney fees and disbursements) arising out of or incurred in connections with any and all claims, demands, suits, actions or proceedings, which may be brought against Madison County, the Sheriff, respective supervisors, agents, officers, employees, and officials by reason of, or as the result of (1) acts or omissions of ACH, its agents, servants, or employees related in any way to or while in the performance of this Agreement; (2) any allegations of an act or omission, conduct or misconduct, of ACH, its agents, servants or employees not included in the paragraph above and for which the County, the Sheriff, or their agents, servants, or employees are alleged to be liable; and (3) any allegation of employment discrimination by an ACH employee.

Madison County and the Sheriff agree to indemnify and save harmless ACH from and against any and all liability, loss, damages, interest, judgments and liens growing out of any and all costs and expenses (including, but not limited to, reasonable attorney fees and disbursements) arising out of or incurred in connection with any and all claims, demands, suits, actions or proceedings, which may be brought against ACH by reason of, or as the result of (1) acts or omissions of Madison County, the Sheriff, or their respective supervisors, agents, officers, employees, and officials related in any way to or while in the performance of this Agreement; (2) any allegations of an act or omission, conduct or misconduct, of Madison County, the Sheriff, or their respective supervisors, agents, officers, employees, and officials not included in paragraph above and for which ACH is alleged to be liable; and (3) any allegation of employment discrimination by Madison County, the Sheriff, or their respective supervisors, agents, officers, employees, and officials.

(Id. ). Jeffrey Rich ("Rich"), the County's attorney, drafted the aforementioned insurance and indemnification provisions in the Agreement.

The parties understood that ACH agreed to defend and indemnify claims related to ACH's provision of healthcare services. (Doc. 95-1 at 112, ll. 19-22). On June 27, 2006, ACH acquired a Certificate of Liability Insurance that designated the Jail as the Certificate Holder and included Madison County as "additional insured under the General Liability if required by contract in writing." (Doc. 95-13 at 24). An updated Certificate in September 2006 stated that "Madison County Jail, AL and the Madison County Sheriff's Office, AL are included as additional insured under the General Liability and Professional Liability coverage if required by contract in writing. Coverage applies to operations in correctional facilities." (Id. at 15). However, Rich objected that these two entities were not legal entities and requested a name change. (Id. at 13).

A November 2006 Certificate added the Jail and the Sheriff of Madison County as "additional insured" under the General Liability, Professional Liability, and Civil Rights Liability coverage "if required by contract in writing." (Doc. 95-13 at 26). Furthermore, the Certificate limited the coverage to ACH operations in correctional facilities only. This language consistently remained in the yearly-renewed Certificates through July 2014. (Doc. 95-1 at 104-07; Doc. 95-10 at 32, 34; Doc. 95-13 at 26, 28, 29, 30, 31; Doc. 96-6 at 29).

The County retained insurance through Atlantic Specialty Insurance Company, an affiliate of OneBeacon Insurance Group, Ltd. ("OneBeacon"), to cover claims against the County, Dorning, and other County officials that stem from alleged acts or omissions by the County, Dorning, and other County officials. OneBeacon's policy contains a Law Enforcement Liability Endorsement, which enacts a "Transfer of Rights of Recovery Against Others to Us" clause providing as follows:

If any insured has rights to recover all or part of any payment we have made under this Coverage Part, those rights are transferred to us. The insured must do nothing after loss to impair them. At our request, the insured will bring "suit" or transfer those rights to us and help us enforce them.

(Doc. 93-8 at 62).

Johnson sent several letters to Dorning updating him on the progress ACH employees undertook in the Jail to comply with the Agreement. (Doc. 95-10 at 8-14). Between 2006 and 2014, Plaintiffs expressed no concerns regarding the medical care ACH provided. (Doc. 95-1 at 33). On January 5, 2011, Rich sent a letter to Jefferson County Sheriff Mike Hale, recommending ACH's services "without reservation." (Doc. 95-14 at 2-3). Rich praised ACH's ability to "improve the healthcare of the offenders housed in [the] facility, while controlling the medical costs and providing risk management." (Id. )

ACH Procures Insurance

In June 2006, Rich, the County Attorney, requested assurance from ACH that it would acquire insurance in accordance with the terms of the Agreement. Specifically, Rich requested that the insurance include Madison County, the Madison County Sheriff, and their employees as additional insureds. ACH endeavored with its insurance broker, Rob Bielenberg of Callender & Co. in Peoria, Illinois, to procure insurance through Essex Insurance Company ("Evanston"). Evanston has no employees, and Markel Services, Inc., ("Markel") serves as Evanston's claims manager. (Doc. 96-4 at 6-8).

Beginning in July 2006, ACH procured and maintained general liability, professional liability, and medical malpractice insurance at its own expense. ACH's insurance covered professional and medical liability, negligence, and claims brought pursuant to 42 U.S.C § 1983. Furthermore, as the Agreement required, ACH maintained policy limits of one million dollars ($1,000,000) per occurrence and three million dollars ($3,000,000) aggregate. Although ACH eventually procured insurance, Bielenberg informed Johnson of the difficulties in acquiring insurance that complied with the Agreement. (Doc. 95-10 at 16).

On May 31, 2013, ACH submitted an Application for Locum Tenens and Contract Staffing Organizations Professional and General Liability to Evanston. (Doc. 94-9 at 1). As part of its application, ACH included a copy of its standard template contract. (Doc. 94-11 at 15 - Doc. 94-13 at 1). ACH's standard template contract does not contain the required insurance coverage terms found in the Agreement's Section 6(B). As a result of the application, Evanston issued ACH a claims-made insurance policy for "Locum Tenens and Contract Staffing Professional Liability Insurance" ("Policy") for the policy period of August 1, 2013, to August 1, 2014. (Doc. 94-4 at 19). Evanston then renewed the Policy with a policy period of August 1, 2014, to August 1, 2015.

The Policy provides in relevant part:

INSURING AGREEMENT

A. Professional Liability and Claims Made Clause:

The Company shall pay on behalf of the Insured all sums in excess of the Deductible amount stated in the Declarations, which the Insured shall become legally obligated to pay as Damages as a result of Claims first made against the Insured during the Policy Period or during the Extended Reporting Period, if exercised, and reported to the Company pursuant to Section Claims A., Claim Reporting Provision:

1. under Coverage A. Individual Professional Liability: because of Malpractice or Professional Personal Injury, sustained by a patient and committed by the Coverage A. Insured, or by any person for whose Malpractice or Professional Personal Injury the Coverage A. Insured is legally responsible, except as a member, stockholder or partner of an association, corporation, partnership or limited liability company, arising out of the conduct of the Insured's Medical Services;

2. under Coverage B. Organization Liability: because of Malpractice or Professional Personal Injury, sustained by a patient and committed by any person for whom the Coverage B. Named Insured is legally responsible, arising out of the conduct of the Insured's Professional Healthcare Services;

......

DEFINITIONS

......

G. Malpractice means an act, error or omission in Medical Services rendered or that should have been rendered.

H. Medical Services means services ... provided in the medical care or treatment of any patient ... within the scope of the Healthcare Provider's license, certificate or other qualification to practice Medical Services.

......

J. Professional Personal Injury means ... any bodily injury, mental injury, sickness, disease, emotional distress or mental anguish, including death resulting therefrom of any patient, arising out of Malpractice.

(Doc. 94-5 at 13).

Evanston also issued ACH an "Amendatory Endorsement - Civil Rights Violation." This endorsement states in pertinent part:

1. Section Definition H. ["Medical Services"] is amended by the addition of the following:

4. an allegation of a civil rights violation pursuant to the Civil Rights Act of 1871 ( 42 U.S.C. § 1983 et seq. ) and amendments thereto, provided that such allegation is the result of any patient receiving Medical Services

......

3. Section The Exclusions ["This insurance does not apply to"] F. is deleted and replaced with the following:

F. any Claim based upon or arising out of any unlawful discrimination by any insured; provided, however, this exclusion shall not apply to any civil rights violation alleged pursuant to the Civil Rights Act of 1871 ( 42 U.S.C. § 1983 et seq. ) and amendments thereto, provided that such civil rights violation arises out of Medical Services for which the Insured is legally liable.

(Doc. 94-4 at 23-24)(emphasis added).

Furthermore, ACH's insurance policy with Evanston included an "additional insured" endorsement:

ADDITIONAL INSURED ENDORSEMENT - PROFESSIONAL LIABILITY

This endorsement modified insurance provided under the following:

LOCUM TENENS AND CONTRACT STAFFING PROFESSIONAL LIABILITY INSURANCE COVERAGE

In consideration of the premium paid, it is hereby understood and agreed that the policy is amended as follows:

1. Section The Insured is amended by the addition of the following:

Whenever used in this Policy, the unqualified word Insured shall also mean Additional Insured.

2. Additional Insured means, whenever used in this endorsement, the following:

State, Municipal Department of Corrections, Office of the Sheriff, or other Officials to whom the Coverage B. Named Insured is obligated by valid written contract to provide coverage as an additional insured to such person or organization but only as respects liability in rendering Professional Services caused by the negligence of the Named Insured and only for coverage not otherwise excluded in the policy.

3. Coverage provided to any Additional Insured as defined herein shall apply solely with respect to any Claim or Claim Expenses arising from Professional Services rendered by the Named Insured specified in Item 1. of the Declarations.

4. Where no coverage shall apply herein for the Coverage A or Coverage B Named Insured, no coverage or defense shall be afforded to the above Additional Insured.

......

7. This insurance shall be excess and non-contributory insurance over any other insurance afforded to the Additional Insured.

(Doc. 94-4 at 28). Upon the renewal of the Policy in August 2014, Evanston issued a revised Additional Insured endorsement that eliminated paragraph 7, deeming Evanston's Policy no longer "excess." (Doc. 93-8 at 41)("It is understood and agreed to that Endorsement No. 5 [the original "Additional Insured" endorsement] is deleted in its entirety and replaced with [this revised version.]")

Although the yearly Certificates of Liability Insurance ("Certificates") list Plaintiffs as "Additional Insureds," neither the Certificates, Policy, or endorsements list Dorning or the County as "Additional Named Insureds."

Evanston Provides Defense for Plaintiffs in State Court Cases

On April 27, 2011, Randolph and Angela Moore commenced a civil action in the Circuit Court of Madison County, Alabama, against ACH, Dorning, and the Madison County Commission. (Doc. 95-14 at 27). Mr. Moore arrived at the Jail on April 7, 2010, and subsequently he gave a blood sample to authorities. Upon review of the blood sample, the Sheriff's Department incorrectly told Moore that he tested positive for a sexually transmitted disease. Despite his insistence that the test could not be accurate, the defendants ordered Moore to visit the Madison County Health Department and receive treatment for his STD. Moore's wife also commenced treatment at the Madison County Health Department and took medication for two weeks, causing adverse side effects for her. The complaint also avers the Sheriff's Department was not properly funded or staffed, and the Madison County Commission failed to provide such funding.

The amended complaint, filed on September 12, 2011, alleges claims of negligence, wantonness, and violations of the Alabama Medical Liability Act (§ 6-5-542, et seq. ) of the Code of Alabama (1975) against all defendants. (Doc. 95-14 at 32). Neither the original nor the amended complaint alleged § 1983 claims. After completing its coverage review, Evanston agreed to provide a defense and indemnity under a reservation of rights and appointed defense counsel for Plaintiffs. (Doc. 95-4 at 16).

On May 5, 2015, Rodricus Hammonds initiated a pro se civil action in the Circuit Court of Madison County, Alabama, against the Madison County Sheriff's Department, the Madison County Medical Staff, and Dr. Arthur Williams. (Doc. 95-14 at 18). Hammonds arrived at the Jail in January 2014, after which he began suffering itches on his body. Hammonds alleges that he proceeded through the proper procedures and filed a sick call to see a medical staff member, and medical personnel placed him on the waiting list to see Dr. Williams. Hammonds alleges he waited for over three weeks, and the itching progressively worsened. After he visited Dr. Williams, he avers Dr. Williams indicated the absence of any ailments. However, Hammonds alleges that the itching worsened and he developed rashes.

Two months later, upon reports of a scabies breakout in his section of the Jail, Hammonds returned to Dr. Williams. Hammonds alleges that Dr. Williams sent him back to his cell, and Hammonds transitioned to a medical cell after a nurse discovered Hammonds's open wounds from the itching. Hammonds avers that he remained in the medical unit from March through August 2014 without receiving any treatment, and it was during his transition to federal custody in August 2014 that he finally received treatment for scabies.

Hammonds filed an amended complaint on September 2, 2015, alleging identical facts to his original complaint and a state law claim of medical malpractice against all defendants. (Doc. 97-1). After completing its coverage review, Evanston agreed to defend the allegations under a reservation of rights and appointed defense counsel for the plaintiffs. (Doc. 95-14 at 20-26).

The Underlying Actions

This case centers on a question regarding the applicability of insurance coverage in five cases against Dorning and the County ("the Underlying Actions"). The facts in each case reveal a mixture of claims against ACH, Dorning, the County, and numerous individuals employed by and/or affiliated with ACH and the County. The following five cases raise the same procedural question: whether ACH and Evanston owed a duty to defend and indemnify the County and Dorning.

(1) The Listau Complaint

On July 8, 2014, Robert Elliott, as the personal representative of the estate of Nikki Listau ("Listau"), commenced a civil action in the United States District Court for the Northern District of Alabama (No. 5:14-cv-01309-CLS). The claims below stem from the most recent version of the complaint, filed on October 31, 2014. (Doc. 97-2).

The complaint alleges the defendants-including Madison County, Dorning, and ACH-acted deliberately indifferent to Listau's medical needs in violation of the Fourteenth Amendment. Specifically, the complaint alleges that upon Listau's arrival at the Jail, she exhibited symptoms from alcohol withdrawal, and thus, officials placed her in a medical observation cell. The complaint alleges that, from prior jail admissions, both ACH and Jail personnel knew that Listau struggled with alcoholism and suffered from a history of advanced delirium tremens (DTs) and seizures during withdrawal. Shortly after Listau arrived at the Jail, a nurse affiliated with ACH examined Listau and identified her as suffering from severe DTs.

The complaint alleges correctional officers at the Jail checked on Listau every fifteen minutes, yet ACH employees failed to sufficiently monitor Listau's vital signs. The day after Listau's arrival, personnel found Listau unresponsive in her cell, and Listau died the day after at Huntsville Hospital. The autopsy report indicated that Listau died from severe blunt force injuries, including a broken left femur and multiple rib fractures.

Count I of the complaint alleges a claim of deliberate indifference to serious medical needs, pursuant to 42 U.S.C. § 1983, against all defendants. Count I alleges that certain individual defendants, including Dorning and specific ACH employees, act as supervisory officials for the jail and failed to fulfill their responsibility for development and implementation of policies and procedures for medical care. Furthermore, Count I states Madison County intentionally refused to adequately fund medical care with deliberate indifference to the serious medical needs of inmates such as Listau. Finally, Count I alleges Dorning remains liable for the acts of ACH and its policymakers, and the defendants' conduct caused Listau to suffer physical and emotional injuries that led to her death.

Count II of the complaint alleges state law claims of negligence and wantonness against individual ACH defendants and unknown ACH employees. Specifically, Count II alleges ACH employees involved with Listau's care owed a duty to satisfy the standard of care applicable to inmates and/or to ensure those under their supervision were adequately trained regarding the proper care of such inmates, and that these employees negligently and/or wantonly violated this standard of care. Furthermore, Count II states that because ACH personnel acted within the scope of their employment, defendant ACH remains liable for their negligence and/or wantonness.

On July 9, 2014, Rich sent a letter to Johnson stating demands for indemnification pursuant to the Agreement. Furthermore, the letter requested ACH provide notice to its insurer for it to consider Dorning and Madison County as "additional insureds" under the Policy. Madison County, Dorning, and ACH retained separate counsel to defend the Listau action, and the parties ultimately reached a settlement. Evanston and OneBeacon separately contributed to the settlement of the individual claims against their respective insureds. Rich states that OneBeacon decided to settle based on the allegations in the Listau complaint and the risk and exposure to the insurer and its insureds. The court dismissed the action on October 6, 2016. (Doc. 97-6).

(2) The Woods Complaint

On April 15, 2014, Rich sent a letter to Johnson stating that Dorning received correspondence from an attorney representing the Estate of Deundrez Woods. (Doc. 93-9 at 4). Woods died while he was an inmate at the Jail in August 2013. Rich's letter served as notice of Dorning's demand for indemnification pursuant to the Agreement. (Id. ) Furthermore, the letter requested that ACH provide notice to its insurer for it to consider Dorning as an "additional insured" under the Policy. (Id. ).

On October 14, 2014, Tanyatta Woods, as the personal representative of the estate of Deundrez Woods ("Woods"), commenced a civil action in the United States District Court for the Northern District of Alabama (No. 5:14-cv-1964-KOB). The claims below stem from the most recent version of the complaint, filed on October 29, 2014. (Doc. 97-7).

The complaint alleges that the defendants-including Madison County, Dorning, and ACH-acted deliberately indifferent to Woods's medical needs in violation of his Fourteenth Amendment rights as a pretrial detainee. Specifically, the complaint alleges Woods arrived at the Jail in late June 2013, and Woods's mental functioning underwent a severe change between late July and early August 2013. This decline in Woods's mental functioning led personnel to move him to a medical observation cell. The complaint states that over a two-week period, Woods's condition deteriorated-he began hallucinating, remained in a confused state, and became unable to communicate with correctional and medical personnel. Correctional personnel tased Woods at least three times over this period.

Over this period, Woods did not eat or drink, and records indicated that correctional personnel cut off Woods's water supply a week before his death. The complaint alleges that both County and ACH personnel knew of Woods's deteriorating condition and did nothing to alleviate it. During this period, Woods's right foot became gangrenous, and the complaint alleges that correctional personnel remained aware of Woods's condition but did nothing to help him. The complaint also argues that in the week leading up to Woods's death, no ACH personnel took Woods's temperature, checked his blood pressure, checked his blood sugar, or otherwise attempted to assess Woods's condition. On August 19, 2013, someone found Woods completely non-responsive, and he died two days later at Huntsville Hospital.

Count I of the complaint alleges a claim of deliberate indifference to serious medical needs, pursuant to 42 U.S.C. § 1983, against all defendants. Count I alleges that certain individual defendants, including Dorning and specific ACH employees, act as supervisory officials for the jail and failed to fulfill their responsibility for development and implementation of policies and procedures for medical care. Count I further argues these individuals' action and inaction established unconstitutional customs and policies regarding the provision of medical care. Count I states Madison County intentionally refused to adequately fund medical care with deliberate indifference to the serious medical needs of inmates such as Woods. Finally, Count I alleges Dorning remains liable for the acts of ACH and its policymakers, and the defendants' conduct caused Woods to suffer physical and emotional injuries that led to his death.

Count II of the complaint alleges state law claims of negligence and wantonness against individual ACH defendants and unknown ACH employees. Specifically, Count II alleges that the ACH employees involved with Woods's care owed a duty to satisfy the standard of care applicable to inmates and/or to ensure those under their supervision were adequately trained regarding the proper care of such inmates, and that these employees negligently and/or wantonly violated this standard of care. Furthermore, Count II states that because ACH personnel acted within the scope of their employment, defendant ACH remains liable for their negligence and/or wantonness.

Madison County, Dorning, and ACH retained separate counsel to defend the Woods action, and the parties ultimately reached a settlement. Evanston and OneBeacon separately contributed to the settlement of the individual claims against their respective insureds. Rich states that OneBeacon decided to settle based on the allegations in the Woods complaint and the risk and exposure to the insurer and its insureds. The court dismissed the action on February 2, 2017. (Doc. 97-10).

(3) The Jefferson Complaint

On April 8, 2014, Rich sent a letter to Johnson stating that Dorning received correspondence from an attorney representing the Estate of Tanisha Jefferson. (Doc. 93-9). Jefferson died while she was an inmate at the Jail in October 2013. Rich's letter served as a notice of Dorning's demand for indemnification pursuant to the February 2014 Agreement. (Id. ) Furthermore, the letter requested that ACH provide notice to its insurer for it to consider Dorning as an "additional insured" under the Policy. (Id. ).

On October 14, 2014, Carolyn Jefferson, as the personal representative of the estate of Tanisha Jefferson ("Jefferson"), commenced a civil action in the United States District Court for the Northern District of Alabama (No. 5:14-cv-1959-AKK). The claims below stem from the most recent version of the complaint, filed October 29, 2014. (Doc. 99-1).

The complaint alleges that the defendants-including Madison County, Dorning, and ACH-acted deliberately indifferent to Jefferson's medical needs in violation of her Fourteenth Amendment rights as a pretrial detainee. Specifically, the complaint alleges Jefferson arrived at the Jail in mid-October 2013, and Jefferson began complaining of rectal and abdominal pain on October 19, 2013. The complaint asserts Jefferson requested on numerous occasions to see a doctor and filed at least one medical grievance, and she finally saw an ACH doctor on October 29, 2013. However, the complaint alleges the doctor misrepresented Jefferson's condition in his notes by omitting her symptoms of severe and worsening abdominal pain, lack of appetite, rectal pain, and vomiting. The doctor did not perform a rectal exam, but he prescribed laxatives for Jefferson.

The complaint states Jefferson's condition worsened over the following days, and she exhibited sweating and labored breathing. On the morning of October 31, 2013, Jefferson allegedly saw an ACH nurse and reported her condition, but the nurse sent her back to her cell. That evening, despite ACH personnel knowing of her early morning complaint, Jefferson passed out in her cell while complaining of extreme abdominal pain. An hour later, ACH personnel called an ambulance as Jefferson was nonresponsive.

The complaint states Jefferson died that day as a result of complications related to a bowel obstruction, yet an autopsy reveals that Jefferson died of cardiomyopathy. The autopsy also diagnosed Jefferson with hypertensive cardiovascular disease and blunt force injuries in the right upper extremity and lower extremities. (Doc. 95-1 at 125).

Count I of the complaint alleges a claim of deliberate indifference to serious medical needs, pursuant to 42 U.S.C. § 1983, against all individual defendants. Count I alleges certain individual defendants, including Dorning and specific ACH employees, act as supervisory officials for the jail and failed to fulfill their responsibility for development and implementation of policies and procedures for medical care. Count I further argues these individuals' action and inaction established unconstitutional customs and policies regarding the provision of medical care. Count I states Madison County intentionally refused to adequately fund medical care with deliberate indifference to the serious medical needs of inmates such as Jefferson. Finally, Count I alleges Dorning remains liable for the acts of ACH and its policymakers, and the defendants' conduct caused Woods to suffer physical and emotional injuries that led to her death.

Count II of the complaint alleges state law claims of negligence and wantonness against individual ACH defendants and unknown ACH employees. Specifically, Count II alleges ACH employees involved with Jefferson's care owed a duty to satisfy the standard of care applicable to inmates and/or to ensure those under their supervision were adequately trained regarding the proper care of such inmates, and these employees negligently and/or wantonly violated this standard of care. Furthermore, Count II states that because ACH personnel acted within the scope of their employment, defendant ACH remains liable for their negligence and/or wantonness.

Madison County, Dorning, and ACH retained separate counsel to defend the Jefferson action, and the parties ultimately reached a settlement. Evanston and OneBeacon separately contributed to the settlement of the individual claims against their respective insureds. Rich states that OneBeacon decided to settle based on the allegations in the Jefferson complaint and the risk and exposure to the insurer and its insureds. The court dismissed the action on July 25, 2017. (Doc. 99-8).

(4) The Foster Complaint

On May 16, 2014, Rich sent a letter to Johnson that attached correspondence from an attorney on behalf of Whitney Foster. (Doc. 108-2). The letter stated that Foster suffered injuries while she was an inmate at the Jail in April 2014. The letter also served a notice of Dorning's demand for defense and indemnification pursuant to the Agreement, and a request that ACH provide notice to the insurer. (Id. ) This letter also requests that ACH's insurer add Dorning as an "additional insured." On March 12, 2015, Rich sent another letter to Johnson stating that the Madison County Commission received a notice of a claim from Foster. (Doc. 93-9 at 8). Rich's letter served as another notice of demand for indemnification pursuant to the Agreement. (Id. ) Rich sent Johnson another letter on April 8, 2016, reiterating the same demands. (Doc. 94-13 at 6).

On March 16, 2016, Whitney Foster ("Foster") commenced a civil action in the United States District Court for the Northern District of Alabama (No. 5:16-cv-0521-MHH). The claims below stem from the most recent version of the complaint, filed June 8, 2017. (Doc. 99-9).

The complaint alleges the defendants-including Madison County, Dorning, and ACH-acted deliberately indifferent to Foster's medical needs in violation of her Fourteenth Amendment rights as a pretrial detainee. Specifically, the complaint alleges Foster arrived at the Jail on April 4, 2014. Documentation from ACH personnel indicated the "Methadone Clinic" in Huntsville, Alabama, was treating Foster, and Foster expressed she was experiencing methadone withdrawal symptoms. The complaint asserts none of the defendants verified this information, despite the fact ACH personnel documented the information from their interview with Foster. The complaint further states that within a week of Foster's arrival at the Jail, she displayed visible signs of weakness and methadone withdrawal that worsened daily. Foster avers that although the defendants knew she suffered from withdrawal, they did nothing to help her.

The complaint avers ACH personnel took actions that worsened Foster's condition and inaccurately reported blood pressure numbers that Foster exhibited. On April 21, 2014, Foster's cellmate called for medical assistance because Foster was shaking and sweating, and ACH personnel placed Foster under medical observation. The complaint alleges correctional personnel harassed and ridiculed Foster while she endured numerous strokes and seizures, and individual correctional officers left her sprawled on a floor during a commissary visit. The complaint further alleges a medical nurse continuously picked up and dropped Foster while yelling at her. At some point thereafter, ACH and correctional personnel physically placed Foster in a shower because she urinated on herself.

On April 22, 2014, another inmate requested emergency assistance for Foster because she was "twitching" in her bunk. Correctional personnel assisted Foster into a wheelchair and took her to triage with ACH personnel. ACH personnel placed Foster under medical observation, yet her condition worsened. The following day, after both correctional and ACH personnel observed Foster's worsening symptoms, they sent her to Huntsville Hospital for treatment due to signs of a stroke. The complaint alleges Foster arrived at the hospital with high blood pressure readings and marks indicating she had been beaten. Foster remained in the hospital for three weeks, and hospital personnel diagnosed her with Posterior Reversible Encephalopathy Syndrome (PRES). The complaint alleges Foster struggles with severe physical and mental ramifications from PRES.

Count I of the complaint alleges a claim of deliberate indifference to serious medical needs, pursuant to 42 U.S.C. § 1983, against all defendants. Count I alleges certain defendants, including Madison County, Dorning, and specific ACH employees, created and perpetuated deliberately indifferent customs or policies regarding the serious medical needs of prisoners, such as Foster. Count I clarified Foster is suing Madison County only for its deliberate indifference to the constitutional rights of detainees at the Jail through its lack of adequate funding.

Count II of the complaint alleges a claim of conspiracy to violate civil rights, pursuant to 42 U.S.C. § 1983, against Madison County, Dorning, and other County and ACH individuals. Specifically, Count II alleges a conspiracy existed between the individuals and entities that resulted in the actual denial of Foster's constitutional right to medical care for her serious medical needs.

Count III alleges a claim of negligent medical practice against ACH and ACH employees pursuant to the Alabama Medical Liability Acts. ( Ala. Code §§ 6-5-480, et seq. ). Count III alleges ACH, its supervisors, and its employees negligently breached its duty to follow the reasonable care standard in their medical treatment of Foster. Furthermore, Count III states ACH, as an entity, remains vicariously liable for the negligent conduct of its supervisors and employees under the doctrines of respondeat superior, apparent agency, nondelegable duties, and other doctrines.

Count IV alleges a state law claim of negligent correctional care against Madison County and individual correctional officers. Count IV alleges Madison County negligently funded the Jail, and this underfunding contributed to Foster's injuries and damages.

Count V alleges a state law claim of wantonness against all defendants, except Dorning and another County individual. Count V alleges that defendants consciously took actions and/or failed to take actions with the knowledge that Foster would incur injuries. Furthermore, Count V states that this wanton conduct led to the direct and proximate result of Foster incurring the injuries. Count V also alleges ACH, as an entity, remains vicariously liable for the wanton conduct of its supervisors and employees under the doctrines of respondeat superior, apparent agency, nondelegable duty, and other doctrines.

Finally, Count VI alleges a state law claim of civil conspiracy against Madison County, ACH, and an individual ACH employee. Specifically, Count VI alleges a conspiracy existed between Madison County, ACH, and other ACH employees which resulted in the actual denial of Foster's constitutional right to medical care for her serious medical needs.

Madison County, Dorning, and ACH retained separate counsel to defend the Foster Complaint. The Foster case remains pending. (Memorandum Opinion, Foster v. Advanced Correctional Healthcare Inc. et al , No. 5:16-cv-0521-MHH (N.D. Ala. Sept. 21, 2018), ECF No. 108).

(5) The Davis Complaint

On July 14, 2016, Roy Lee Davis ("Davis") commenced a civil action in the U.S. District Court for the Northern District of Alabama (No. 5:16-cv-1166-AKK). The claims below stem from the most recent version of the complaint, filed January 30, 2017. (Doc. 99-14). ("Davis Complaint").

The nature of the Davis Complaint alleges the defendants-including Madison County, Dorning, and ACH-acted deliberately indifferent to Davis's medical needs in violation of his Fourteenth Amendment rights as a pretrial detainee. Specifically, the complaint alleges Davis arrived at the Jail on July 17, 2014. The Davis Complaint alleges that over the succeeding days, Davis began experiencing withdrawal symptoms, yet neither ACH nor County personnel identified him as a person likely to experience withdrawal. On July 21, 2014, ACH personnel examined Davis after his symptoms worsened and identified him as experiencing severe delirium tremens (DTs). That evening, ACH

personnel placed Davis in a medical observation cell.

The Davis Complaint states that over the succeeding two days, Davis's condition deteriorated, and numerous ACH and County personnel observed him during this time period. By July 23, 2014, Davis was mainly unresponsive and could not walk. Only July 24, 2014, Jail management personnel contacted court personnel to inquire about releasing Davis to avoid incurring the costs of sending him to the hospital. Upon release, Davis's family transported him to Madison Hospital.

Count I of the complaint alleges a claim of deliberate indifference to serious medical needs, pursuant to 42 U.S.C. § 1983, against all defendants except Dorning. Count I alleges that certain individual defendants, including Dorning and specific ACH employees, act as supervisory officials for the jail and failed to fulfill their responsibility for development and implementation of policies and procedures for medical care at the Jail. Count I further argues these individuals' action and inaction established unconstitutional customs and policies regarding the provision of medical care at the Jail. Count I alleges ACH, as an entity, remains liable because its customs and policies caused the violation of Davis's rights. Count I states Madison County intentionally refused to adequately fund medical care with deliberate indifference to the serious medical needs of inmates such as Davis. Finally, Count I alleges Dorning remains liable for the acts of ACH and its policymakers, as he delegated his final policymaking authority to ACH, and the defendants' conduct caused Woods to suffer physical and emotional injuries that led to his death.

Count II of the complaint alleges state law claims of negligence and wantonness against individual ACH defendants and unknown ACH employees. Specifically, Count II alleges ACH employees involved with Davis's care owed a duty to satisfy the standard of care applicable to inmates and/or to ensure those under their supervision were adequately trained regarding the proper care of such inmates, and that these employees negligently and/or wantonly violated this standard of care. Furthermore, Count II states that because ACH personnel acted within the scope of their employment, defendant ACH, as an entity, remains liable for their negligence and/or wantonness.

On July 20, 2016, Rich sent a letter to Johnson that served as a notice of demand for indemnification pursuant to the Agreement. Furthermore, the letter requested ACH provide notice to its insurer. Madison County, Dorning, and ACH retained separate counsel to defend the Davis Complaint. On July 31, 2018, the court entered a Memorandum Opinion and Final Judgment dismissing with prejudice all claims against all defendants. (Memorandum Opinion & Final Judgment, Davis v. Madison County Alabama et al. , No. 5:16-cv-1166--AKK (N.D. Ala. July. 21, 2018), ECF Nos. 154 and 155).

The County paid a $50,000 deductible to OneBeacon for each of the Listau , Woods , Jefferson , Foster , and Davis claims. (Doc. 95-2 at 38-40).

Evanston and ACH Limit, and then Deny, Insurance Coverage to the County and Dorning for the Underlying Actions

Although the County and Dorning issued letters to ACH demanding a defense and indemnification for each of the five underlying cases, the County never directly contacted Evanston regarding any of the actions. (Doc. 95-2 at 139-140). After ACH first notified Evanston of the Listau case, Evanston reached out to its claims service manager, Markel. Markel retained the law firm Hand Arendall to review coverage, and Hand Arendall subsequently sent a letter to Rich and Dorning on October 27, 2014. The letter states that the Listau Complaint alleged claims against the County and Dorning that arose from their own actions, yet Evanston would "nonetheless defend Madison County and Sheriff Dorning in this matter at this time subject to a full and complete reservation of any and all rights." (Doc. 96-5 at 12). Evanston appointed an attorney to defend the County and Dorning in this matter.

On January 15, 2015, Hand Arendall sent another letter to Rich and Dorning in response to the filings of the Woods and Jefferson Complaints. Although the letter rendered statements similar to the October 2014 letter, it also stated:

The [Evanston] Policy provides coverage for Sheriff Dorning and Madison County as Additional Insureds only with respect to liability Sheriff Dorning and Madison County may have resulting from the negligence of ACH and its employees in providing medical care or treatment to the inmates and/or staffing/hiring decisions. The [Evanston] Policy does not provide any coverage to Sheriff Dorning or Madison County for damages relating to their independent actions.

As is apparent, the One Beacon Policy provides coverage to Sheriff Dorning and Madison County for their wrongful acts. The [Evanston] Policy provides no coverage for Sheriff Dorning and Madison County for their wrongful acts.

(Doc. 96-5 at 24).

The letter stated that the Listau , Woods , and Jefferson Complaints "also make independent allegations against Madison County and Sheriff Dorning based on its or his own conduct that are not covered by the [Evanston] Policy." (Id. at 22). Thus, because OneBeacon's policy covered direct actions by Dorning and the County, and the Evanston Policy only covered Dorning's and County's liability on the basis of ACH's conduct, Evanston proposed that Dorning and the County consent to OneBeacon and Evanston each paying half of the defense costs. (Id. at 24). This offer never culminated into a formal proposal, and the County rejected the offer. Presumably, OneBeacon paid all of Plaintiffs' defense costs in the Underlying Actions. OneBeacon also funded the County and Dorning's share of settlement in the Listau , Woods , and Jefferson cases.

In early 2015, ACH and Plaintiffs encountered several obstacles while discussing the possible renewal of the Healthcare Agreement. On March 18, 2015, ACH's in-house counsel, Jessica Young, sent a letter to Rich upon reviewing the primary insurance and additional named insured questions with Evanston. In the letter, Young stated ACH had named the County as an additional insured on ACH's insurance policies since 2006. Young states that although ACH never intended to be deemed responsible for the negligent acts and omissions of County employees, ACH now understood that the Agreement read otherwise.

Nevertheless, Young informed Rich the County would not receive any coverage beyond recompense for their own conduct based upon "the industry standard ... and how [ACH] operate[s] at every other jail nationwide." (Doc. 99-24 at 22). Young also stated ACH would indemnify the County if it is drawn into a lawsuit through ACH's negligence. Young also informed Rich that ACH remained unable to sign the Agreement as currently written due to these issues.

On April 22, 2015, Rich sent a letter to Johnson and Young reminding them of Rich's prior March 2015 letter listing several demands. These demands included: (1) acknowledge its obligation to pay all claims, litigation costs, attorney fees, and any judgment or settlement money for which the County or Dorning is or may become liable for or obligated to pay in the Woods , Jefferson , or Listau actions; (2) immediately obtain primary insurance covering the County and Dorning as named insureds for all claims that may arise out of the course and scope of the Agreement; and (3) acknowledge its indemnity obligations under the Agreement as it relates to the Woods , Jefferson , or Listau actions. (Doc. 103-1 at 2). Rich's letter states that ACH neither cured its breach of the Agreement nor complied with the County's and Dorning's demands. Therefore, Rich states in the letter that "ACH is hereby notified that as of Monday, June 22, 2015, ACH's services at the [Jail] will end." (Id. at 3). The Agreement between the County, Dorning, and ACH ultimately expired in June 2015. (Sheriff Depo., 95:1-6).

On September 7, 2016, Plaintiffs' counsel contacted ACH's counsel via letter and notified him of the upcoming mediation of the Listau , Woods , and Jefferson actions. (Doc. 103-4 at 2-3). The letter also served as another demand for indemnification for Plaintiffs. ACH never responded to the request.

After the filing of the Davis Complaint in July 2016, Markel retained a different law firm-Swift, Currie, McGee & Hiers LLP ("Swift Currie")-to review coverage on behalf of Evanston. On October 24, 2016, Swift Currie sent a letter to Rich and Dorning communicating Evanston's agreement to defend the Davis action under a reservation of rights. (Doc. 99-25). The letter stated independent allegations existed against both the County and Dorning based on their own conduct, and Evanston's Policy likely would not cover some of these allegations. The letter further explained the County and Dorning would remain responsible for acquiring insurance to protect its or his interests in all non-covered claims.

On March 13, 2017, Judge Abdul Kallon issued a Memorandum Opinion in the Davis case that dismissed several claims and assessed the remaining survivable claims. (Memorandum Opinion & Final Judgment, Davis v. Madison County Alabama et al. , No. 5:16-cv-1166--AKK (N.D. Ala. July. 21, 2018), ECF No. 102). The surviving claims included the claim of deliberate indifference based on inadequate funding against Madison County. On June 29, 2017, Swift Currie sent a letter to the attorney representing Madison County, David Hodge. This letter served as Evanston's intent to withdraw its defense of the County, and repeated the offer to reimburse OneBeacon for half of the defense expenses incurred on the County's behalf up through March 13, 2017.

After the filing of the Foster Complaint in March 2016, Markel retained Swift Currie again to review coverage on behalf of Evanston. On February 23, 2017, Swift Currie sent a letter to Rich and Dorning containing similar reservation-of-rights language in Evanston's agreement to provide a defense to the County and Dorning.

On October 2, 2015, Plaintiffs filed a civil action against Evanston and ACH in the Circuit Court of Madison County, Alabama. On November 6, 2015, Evanston and ACH filed a Notice of Removal. (Doc. 1). The most recent version of Plaintiffs' complaint alleges claims of breach of contract and bad faith against Evanston and claims of breach of contract, indemnification, fraud, suppression, and promissory estoppel against ACH. (Doc. 73).

ANALYSIS

I. THE EVANSTON INSURANCE POLICIES DO NOT COVER PLAINTIFFS FOR THE SECTION 1983 CLAIMS

Evanston argues that its policies including Plaintiffs as additional insureds do not provide coverage for the Underlying Actions' § 1983 claims against Plaintiffs. Based upon the Additional Insured endorsements, the court agrees, thus warranting summary judgment in Evanston's favor.

A. Legal Standard

Pursuant to Alabama statute "[e]very insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended or modified by any rider, endorsement or application which is a part of the policy." Ala. Code § 27-14-17(a). "Insurance contracts, like other contracts, are construed so as to give effect to the intention of the parties, and, to determine this intent, a court must examine more than an isolated sentence or term; it must read each phrase in the context of all other provisions." Attorneys Ins. Mut. of Alabama, Inc. v. Smith, Blocker & Lowther, P.C. , 703 So.2d 866, 870 (Ala. 1996) (citation omitted). When its intention is clear and unambiguous, the court shall enforce an insurance policy as written. Sentinel Ins. Co. v. Alabama Mun. Ins. Corp. , 188 So.3d 640, 644 (Ala. 2015) (citation omitted). Furthermore, "[i]f the terms of an insurance policy are plain and unambiguous, the interpretation of the contract and its legal effect are questions of law." Id. (citing Nationwide Ins. Co. v. Rhodes , 870 So.2d 695, 697 (Ala. 2003) ).

" 'In determining whether an ambiguity exists, a court should apply the common interpretation of the language alleged to be ambiguous.... This means that the terms of an insurance policy should be given a rational and practical construction.' " Porterfield v. Audubon Indem. Co. , 856 So.2d 789, 799 (Ala. 2002) (citations omitted). "The terms of an insurance policy are ambiguous only if the policy's provisions are reasonably susceptible to two or more constructions or there is reasonable doubt or confusion as to their meaning." State Farm Fire & Cas. Co. v. Slade , 747 So.2d 293, 308-09 (Ala. 1999) (citation omitted). " 'Where there is added to a printed form a written or typewritten clause, that clause should be considered as superseding those clauses in conflict which are printed in the form.' " Atlanta Cas. Co. v. Russell , 798 So.2d 664, 667 (Ala. 2001) (citations omitted). "[I]n the absence of statutory provisions to the contrary, insurers have the right to limit their liability by writing policies with narrow coverage." St. Paul Mercury Ins. Co. v. Chilton-Shelby Mental Health Ctr. , 595 So.2d 1375, 1377 (Ala. 1992).

B. Evanston's Policies Do Not Cover Constitutional Tort Claims

Pursuant to the referenced legal standard, Evanston's endorsements including Plaintiffs as Additional Insureds are not ambiguous. The 2013 Additional Insured endorsement provides as follows:

Additional Insured means, whenever used in this endorsement, the following:

State, Municipal Department of Corrections, Office of the Sheriff, or other officials to whom the Coverage B. insured is obligated by valid written contract to provide coverage as an additional insured to such person or organization but only as respects liability in rendering Professional Services caused by the negligence of the Named Insured ....

(Doc. 93-6 at 20) (emphasis added). Therefore, the 2013 policy's Additional Insured endorsement, as do the like endorsements in ACH's other policies with Evanston regarding the Plaintiffs, limits coverage to "liability in rendering Professional Services caused by the negligence of the Named Insured, " the Named Insured referencing ACH. (Id. ) (emphasis added). In essence, ACH contracted with Evanston to provide Plaintiffs coverage of ACH's purported negligent liability.

However, the Underlying Actions' claims against Plaintiffs - whether against Plaintiffs directly or via delegation of their duties to ACH - sound in 42 U.S.C. § 1983 constitutional tort liability, not mere negligence (save for one claim in the Foster action, which the court will dispose of momentarily). Section 1983 does not provide the substantive standards for constitutional violations. Daniels v. Williams , 474 U.S. 327, 328, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (" § 1983 contains no independent state-of-mind requirement"). Rather, courts must rely upon the underlying constitutional torts to provide the applicable standards. In this contex