Scott M. Seidel v. Century Surety Company

Jane Doe, at 18 and recently her high school’s valedictorian, was raped in a lonely motel room after she passed out from drinking alcohol at Pastzaios Pizza, Inc. (PPI). She was in that motel room because the alcohol had left her in and out of consciousness, making her a vulnerable target. She was in that vulnerable state because PPI failed in its duties to her, including by permitting her to be served alcohol and permitting her attacker to remove her from the premises while barely conscious. PPI, like thousands of bars and restaurants that serve alcohol in Texas, purchased “Dram Shop” insurance coverage, in this case from Century. Century denied coverage, thereby forcing PPI’s bankruptcy, and the Texas state court ultimately awarded Doe almost $20 million in damages. The Fifth Circuit, acting sua sponte, held that there was no coverage because PPI committed the crime of serving alcohol to a minor—an issue not addressed below and not even a basis on which Century denied coverage. To get there, the Fifth Circuit, already known as an “insurer friendly” venue, found that PPI committed a crime. It so found without any evidence or trial, instead “imputing” a crime, in violation of the Trustee’s due process rights and in contradiction of the actual facts as determined by the Texas court. Imputation, not evidence, now governs the question of whether a crime has been committed. Accordingly, the questions presented are: 1. Where there was no trial on the question of whether PPI committed a crime, the courts be-