What Golden Bear Ins. Co. v. Levee Bar & Grill Teaches About Forum Strategy — and How Defense Counsel Could Have Played It Differently Golden Bear Ins. Co. v. Levee Bar & Grill, LLC, No. 4:24-CV-00764-DGK (W.D. Mo. May 15, 2025)
Missouri Injury & Insurance Law | missouriinjuryandinsurancelaw.com
The Setup: A Bar Fight, a Broken Coverage Denial, and a Race to Federal Court
An insurance coverage dispute doesn’t usually make for riveting reading. But Golden Bear Insurance Co. v. Levee Bar & Grill is worth your time — not because the legal questions are exotic, but because the strategic moves and countermoves on display tell you something important about how coverage litigation gets fought in the Western District of Missouri.
Here’s the backdrop. Adrain Hubbard was a patron at The Levee Bar & Grill in Kansas City. He allegedly became intoxicated after being overserved, was removed from the premises, and was then struck in the head by a Levee employee. He filed suit in Jackson County Circuit Court, asserting negligent supervision/training against The Levee and a straight negligence count against The Levee and the unnamed employee.
The Levee tendered the claim to its commercial general liability carrier, Golden Bear Insurance Company. Golden Bear denied coverage based on an assault and battery exclusion in the policy — one of thirteen enumerated categories of excluded acts, allegations, or causes of action. Rather than defend under a reservation of rights while contesting coverage in the background, Golden Bear made an aggressive choice: it filed this federal declaratory judgment action to get the exclusion question resolved before any judgment could be entered in the underlying tort case.
Defendants moved to dismiss under Rule 12(b)(1), advancing three arguments: (1) no actual controversy existed because Golden Bear hadn’t first offered a reservation of rights defense; (2) the federal case was a parallel proceeding to the state court action; and (3) the Court should decline jurisdiction in its discretion under the six-factor Scottsdale test. Judge Greg Kays denied the motion on all three grounds.
The Court’s Analysis: Three Swings, Three Misses
The Court dispatched each argument cleanly.
On the reservation-of-rights prerequisite argument: Missouri law imposes no such requirement. An insurer may file a declaratory judgment action to determine its obligations without first offering to defend under a reservation of rights. The Court cited Stacy v. Bar Plan Mut. Ins. Co., 621 S.W.3d 549 (Mo. Ct. App. 2021), and McCrackin v. Mullen, 701 S.W.3d 868 (Mo. 2024) (en banc), the latter of which explicitly endorses simultaneous filing of a declaratory action alongside the underlying tort case.
On the parallel proceedings argument: The Court applied the standard from Scottsdale Ins. Co. v. Detco Indus., Inc., 426 F.3d 994 (8th Cir. 2005): suits are parallel only if ‘substantially the same parties litigate substantially the same issues in different forums.’ That test wasn’t met here. First, Golden Bear was not a party to the state court action (it had only made a limited appearance to request a stay). Second, the issues diverged fundamentally — the federal case asked whether the exclusion applied to the claims as pled; the state case asked whether the Levee was liable to Hubbard. These are different questions of law. The duty-to-defend analysis turns on the pleadings, not the underlying facts, as Trainwreck W. Inc. v. Burlington Ins. Co., 235 S.W.3d 33 (Mo. Ct. App. 2007), confirms.
On the Scottsdale discretionary factors: The Court found all six factors favored exercising jurisdiction. Factors one and two — whether the declaratory judgment would clarify legal relations and relieve uncertainty — clearly favored proceeding. Factors three and four — state interest and efficiency — also favored the federal forum, particularly since Golden Bear wasn’t even a party in state court. Factor five — entanglement — favored jurisdiction because the state action sounds in tort and the federal action in contract, with only incidental factual overlap. Factor six — procedural fencing — found no evidence of forum manipulation, since the federal court was not resolving liability on the underlying tort claim.
The Road Not Taken: How Defense Counsel Could Have Changed the Calculus
The motions to dismiss failed, but that doesn’t mean the insured had no arrows in the quiver. The most significant strategic option — filing a competing declaratory judgment action in Missouri state court — appears to have gone unused. That’s worth examining carefully, because it likely would have changed the outcome on the parallel proceedings question.
Practice Tip: File First in State Court to Create a True Parallel Proceeding
The Court’s rejection of the parallel proceedings argument rested heavily on the fact that Golden Bear was not a party to the Jackson County litigation. Had the insured immediately filed a declaratory judgment action in state court — the Circuit Court of Jackson County — naming Golden Bear as a defendant and seeking a declaration of the insurer’s coverage obligations, the landscape would have shifted considerably.
Under Missouri’s Declaratory Judgment Act, Mo. Rev. Stat. § 527.010 et seq., any party with a justiciable controversy over its rights under a written contract — including an insurance policy — may seek a declaration in circuit court. There is nothing that requires the insured or the injured claimant to wait for the insurer to choose the battlefield. The insured, the injured party, or both can force coverage into state court.
With a state court declaratory action pending, the federal court would have confronted a very different Scottsdale analysis:
- The parties overlap would have been far more substantial, potentially satisfying the ‘substantially the same parties’ prong.
- The coverage question — the assault and battery exclusion — would be before both courts simultaneously, creating genuine entanglement risk (Factor 5).
- Missouri’s interest in having its own courts interpret Missouri insurance policy exclusions would have become a live factor (Factor 3), not an abstraction the defense failed to develop.
- The efficiency argument (Factor 4) would have favored state court, particularly given that the underlying tort case was already there.
- The sixth factor — procedural fencing — could plausibly have been inverted, with Golden Bear’s federal filing characterized as an attempt to secure a federal forum for an otherwise state-law contract dispute.
None of this guarantees dismissal. But it reframes the Scottsdale factors substantially in the insured’s favor, and it deprives the insurer of the ability to claim there is no parallel proceeding. The insurer’s federal declaratory action becomes the race-to-court maneuver, not the defense.
Practice Tip — The State Court Counter-Declaration
If your client (the insured bar or restaurant) is told that coverage is denied and a federal declaratory action follows, consider filing a competing declaratory judgment in the underlying state forum simultaneously. Missouri circuit courts have jurisdiction over insurance contract disputes. This move: (1) creates the parallel proceeding argument the defense here couldn’t make; (2) keeps the case in a court where the underlying tort suit is already pending; (3) forces the insurer to either consolidate or litigate on two fronts; and (4) may be strategically preferred by the injured plaintiff as well, who has no interest in having the coverage question resolved in a federal forum without their full participation.
The Stay Problem — State Court Is Often Better for the Insured
Golden Bear intervened in the state court action and sought a stay of the tort case pending resolution of the federal coverage case. The court did not appear to have granted that stay — at least not at the time of this decision.
That matters. If the underlying tort case continues to move forward, the insured faces exposure without a defense attorney paid by the carrier. The insurer’s coverage denial means the insured is bearing litigation costs out of pocket or perhaps going unrepresented. In that environment, the insured may strongly prefer to keep the coverage dispute in state court — where the same judge handling the tort case might be more sympathetic to the practical realities facing the defendant bar and more reluctant to stay proceedings that affect an injured plaintiff. State Courts are also typically better at following Missouri insurance law, precedent and trends. Federal courts are only bound by decisions of the Missouri Supreme Court. Many District Courts and notoriously the Eight Circuit Court of Appeals have refused to follow Missouri Appellate Courts. These courts have been poor predictors of how the Missouri Supreme Court would rule.
State court stays in coverage disputes are far from automatic. Many Missouri circuit judges are reluctant to halt a plaintiff’s tort case simply because an insurer wants a coverage ruling first — especially where the insured is local, the harm occurred in the county, and the injured party has no stake in the coverage fight. In addition there is no rule which requires that an insured accept a defense from an insurer who has disclaimed coverage, so a stay may not resolve anything.
Further, a federal stay of the state court tort action is not available. So that battle will be fought in the state court.
Practice Tip — Stay Strategy in Parallel Coverage Disputes: In Missouri bar and restaurant liability cases where an insurer files a federal declaratory action and seeks a stay of the state tort case: (1) oppose the stay aggressively on the ground that the federal coverage case is not parallel and the injured plaintiff should not be delayed; (2) simultaneously file a state court declaratory action to argue that the state court is the more efficient forum; and (3) consider whether the vexatious refusal statute(Mo. Rev. Stat. § 375.296 or Mo. Rev. Stat. § 375.420) might apply if the insurer’s denial was pretextual — as the threat of a claim is often the most effective pressure point for early resolution. There are also options for resolution of the tort through settlement or trial with a Mo. Rev. Stat. § 537.065 agreement or without one depending on the parties needs and willingness to enter such agreements.
The Assault and Battery Exclusion: The Coverage Fight Still Ahead
The May 2025 order only resolved the jurisdictional question. The actual merits — whether the assault and battery exclusion bars coverage for negligent supervision/training and general negligence claims arising from an employee striking a patron — remain to be litigated.
Missouri courts have wrestled with assault and battery exclusions in exactly this kind of dram shop/negligent supervision context. The central question is whether the exclusion applies when the theory of liability is the bar’s conduct (failure to train, failure to supervise) rather than the employee’s conduct (the assault itself). Some courts around the country have held that if the damages arise from the assault and battery — regardless of the theory of recovery — the exclusion applies. Other courts have held that negligent supervision is an independent tort with its own independent breach, not derivative of the underlying assault.
Missouri cases suggest the outcome will depend heavily on the specific exclusion language. If the exclusion bars claims ‘arising out of’ assault and battery, that broad causal language typically sweeps in negligent supervision claims. If the exclusion is more narrowly written to exclude only the intentional act itself, there may be coverage for the negligence theories even if not for a direct assault count.
Broader Takeaways for Missouri Injury and Coverage Practitioners
Several principles emerge from Golden Bear worth adding to your playbook:
- Missouri does not require an insurer to offer a reservation of rights defense before filing a declaratory action. McCrackin v. Mullen (Mo. 2024) explicitly sanctions simultaneous filing. Counsel who assume otherwise are operating on an incorrect legal premise.
- The parallel proceedings doctrine is the best tool to defeat an insurer’s declaratory action in federal court — but it only works if you’ve actually created a parallel proceeding. That means filing in state court before or simultaneously with the insurer’s federal filing.
- The six-factor test is the gatekeeper for discretionary jurisdiction in the Eighth Circuit. If you can’t satisfy the parallel proceedings standard, build your record on factors three through six: state interest, efficiency, entanglement, and procedural fencing. Don’t abandon the argument because you lost on ‘parallel’ — the court still weighs all six factors.
- Stay strategy is underappreciated. The insurer’s preferred outcome is a stay of the state tort case while coverage is resolved on the insurer’s preferred timeline and forum of choice. Opposing that stay — and creating competing state court proceedings — disrupts that timeline and forces the insurer to litigate on less favorable ground.
- For plaintiff’s counsel handling cases against bars, restaurants, and entertainment venues, don’t treat the insurer’s declaratory action as someone else’s problem. You have standing and interest in where coverage is resolved. Intervene in the coverage case or file your own action in state court to protect your client’s access to proceeds.
Bottom Line
Golden Bear v. Levee Bar & Grill is a useful case study in insurance forum strategy. The insurer made smart moves — denying coverage cleanly, filing a declaratory action promptly, and seeking a stay in the state court proceeding before a judgment could create an estoppel problem.
The lesson for practitioners on the insured side: don’t wait for the insurer to set the table. Insurance companies are sophisticated litigants with smart and aggressive representation. The insured needs to act promptly and use all available rules and tools. File in state court. Create the parallel proceeding. Force the insurer to fight on your ground. And when your clients are bars and restaurants facing assault and battery exclusions for the acts of their own employees, understand that the coverage fight — not just the tort fight — may determine whether there’s anything left to collect.
