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United Nat'l Ins. Co. v. Penuche's, Inc. - 128 F.3d 28 (1st Cir. 1997)


An actor is liable to another for battery if: (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact; and (b) a harmful contact with the person of the other directly or indirectly result. 


Plaintiff insurer, United National Insurance Company (United National), brought this suit seeking a declaration that it had no duty to defend or indemnify defendants tavern Penuche's, Inc. (Penuche's), and its president, Todd Tousley, in a tort action brought by a Penuche's Ale House patron, Thomas Burke. At Penuche's, Burke was involved in an altercation that Tousley attempted to break up. In so doing, Tousley caused Burke to fall backward, injuring his spine. Among other contentions, United National claims that under New Hampshire law it has no duty to indemnify its insureds, Penuche's or Tousley, for this claim because its multi-peril insurance policy contains an exclusion for any claims "arising out of an assault and/or battery." The district court granted summary judgment in favor of the insureds  and United National sought appellate review, asserting that the policy excluded claims "arising out of an assault and/or battery" and based on liquor liability.


Did the district court err when it granted summary judgment in favor of defendant insureds, a tavern and its owner?




The appellate court affirmed. Giving the policy terms their ordinary meaning, it held that the exclusion only precluded recovery if the patron's injuries "arose out of" the initial fight in the bar. The record showed that the patron's spinal injury occurred when the tavern's owner grabbed him in a "bear hug" and his momentum from hurrying over to stop the fight caused the patron to fall backward. Thus, all of the damages stemmed from a discrete intervening act of alleged negligence, and this claim could not be said to arise out of earlier actions in the fight. Given the patron's concession that there was no violation of the liquor laws, the insurer's request for a declaration on its "liquor liability" exclusion was superfluous.

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