When Does Assault & Battery Exclusion Apply? Assault & Battery Exclusion Easy to Prove When Patrons Shot

When Does Assault & Battery Exclusion Apply? Assault & Battery Exclusion Easy to Prove When Patrons Shot

Places of public accommodation like bars, restaurants and hotels that serve alcoholic beverages are subject to rambunctious customers who may injure innocent customers. Insurers are loathe to insure risks where damage from assault or battery or the use of firearms and usually exclude such causes from an assault, battery or shooting. In Seneca Specialty Ins. Co. v. 845 North, Inc., Slip Copy, 2015 U.S. Dist. LEXIS 67791 (M.D.Fla., 5/26/15), [enhanced version available to lexis.com subscribers], an insurer sought to avoid the obligation to defend and indemnify the insured who were alleged to have failed to warn and prevent patrons from being shot by other patrons.

BACKGROUND

Petitioner, Seneca Specialty Insurance Company (Seneca) Petitioned the District Court for the Middle District of Florida, seeking Declaratory Judgment that the insurance policy it issued to 845 North, Inc. (845 North) does not provide coverage for claims arising from a nightclub shooting, including two state court lawsuits filed by Respondents Kimberly Addison (Addison) and Tyler Gomes (Gomes). Both Addison and Gomes alleged that, on September 27, 2013, while at a nightclub owned and operated by 845 North, they were “assaulted and shot on the Defendant’s premises, suffering serious bodily injury and permanent disfigurement.” Addison and Gomes each assert a single claim of negligence, alleging that 845 North failed to provide adequate security and failed to warn its invitees and the public of the numerous criminal incidents that had previously occurred on its premises.

THE POLICY

Prior to the shooting incident, Seneca had issued a policy to 845 North. The policy provides general commercial liability coverage for the policy period of December 5, 2012, to December 5, 2013. Of particular relevance are two specific provisions identifying exclusions from the Policy’s coverage. The first provision which is entitled the “Assault, Battery or Assault and Battery Exclusion” states:

“This insurance does not apply to damages or expenses due to “bodily injury”, “property damage” or “personal and advertising injury” arising out of or resulting from: ¶ (1) “Assault”, “Battery” or “Assault and Battery” committed by any person; ¶ (2) The failure to suppress or prevent “Assault”, “Battery” or “Assault and Battery” by any person; ¶ (3) The failure to provide an environment safe from “Assault”, “Battery” or “Assault and Battery”; ¶ (4) The failure to warn of the dangers of the environment which could contribute to “Assault”, “Battery” or “Assault and Battery”(Emphasis added)

The Policy defines “Assault” as either “an act creating an apprehension in another of immediate harmful or offensive contact” or “an attempt to commit a ‘Battery.’ ” A “Battery,” in turn, “means an act which brings about harmful or offensive contact to another or anything connected to another.” An “Assault and Battery” is a combination of an “Assault” and a “Battery” as the Policy defines those terms.

The second provision is a weapons exclusion which states,

“This insurance does not apply to ‘bodily injury’, ‘property damage’ or ‘personal and advertising injury’ arising out of or resulting from the possession, ownership, maintenance, use of or threatened use of a lethal weapon, including but not limited to firearms by any person.” (Weapons Exclusion).

APPLICABLE LAW

Seneca contends that the Assault and Battery and Weapons Exclusions negate any duty to defend or indemnity 845 North as to these claims. Accordingly, in the Petition and the instant Motion, Seneca seeks a judgment declaring that 845 North has no coverage under the Policy as to Gomes and Addison’s claims.

Pursuant to Florida law, interpretation of an insurance policy is a question of law to be decided by the court. In so doing, the court must construe the contract in its entirety, striving to give every provision meaning and effect.

In determining an insurer’s duty to defend, the Court looks solely to the allegations in the underlying complaint(s). The duty arises when the relevant pleadings allege facts that fairly and potentially bring the suit within policy coverage. The duty to indemnify is narrower than the duty to defend because it turns on the actual facts, not the facts as alleged in the complaint.

From the face of both Complaints, Gomes and Addison allege that they were “assaulted and shot” on 845 North’s premises and suffered damages as a result of 845 North’s negligence. The Weapons Exclusion precludes coverage under the Policy for claims that arise out of or result from the use of a lethal weapon. The claims at issue, which stem directly from the alleged shootings, necessarily involved, arose out of, and/or resulted from the use of a lethal weapon. Moreover, in the state court Complaints Gomes and Addison plainly assert that they were “assaulted” and that someone shot them, which is a harmful or offensive touching constituting a battery under the Policy definition.

In considering an “assault” and “battery” exclusion, the court in Evanston Ins. Co. v. S & Q Prop. Inv., LLC, No. 8:11–CV–2121–T–27MAP, 2012 U.S. Dist. LEXIS 146387 (M.D.Fla. Oct.11, 2012), [enhanced version available to lexis.com subscribers], explained that a fatal shooting “plainly constituted a battery” such that it precluded insurance coverage even though the underlying action involved a negligence claim for failing to prevent a trespasser from shooting and killing the decedent.

Similarly, in this case, the Policy explicitly excludes claims arising from an assault and battery and based on a failure to prevent an assault, battery or both, such as the ones Gomes and Addison have asserted in the underlying actions. The Court concluded from the pleadings of the underlying state court lawsuits — the Gomes and Addison Complaints — that the Assault and Battery and Weapons Exclusions apply and, therefore, Seneca has no duty to defend 845 North against these claims.

ZALMA OPINION

The decision was an expression of the obvious. When a patron of the insured property is shot and injured the assault and battery and the weapons exclusions applied without question. Regardless of the seriousness of the injury and the court’s desire to provide indemnity to the injured, there was no way to change a shooting into an accident that was not excluded by the policy.

    By Barry Zalma, Attorney and Consultant

Reprinted with Permission from Zalma on Insurance, (c) 2015, Barry Zalma.

Barry Zalma, Esq., CFE, is a California attorney who limits his practice to consultation regarding insurance coverage, insurance claims handling, insurance bad faith and fraud and acting as a mediator or arbitrator on insurance disputes. Mr. Zalma serves as a consultant and expert almost equally for insurers and policyholders. He founded Zalma Insurance Consultants in 2001 and serves as its only consultant. He recently published the e-books, "Zalma on Rescission in California - 2013"; "Random Thoughts on Insurance" containing posts from this blog; "Zalma on Insurance;" "Murder and Insurance Don't Mix;" “Heads I Win, Tails You Lose — 2011,” “Zalma on Diminution in Value Damages,” “Arson for Profit” and “Zalma on California Claims Regulations,” and others that are available at Zalma Books.

Mr. Zalma can be contacted at or zalma@zalma.com, and you can access his free "Zalma on Insurance Fraud" newsletter at Zalma’s Insurance Fraud Letter.

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