There are, however, numerous scenarios where an assault or battery committed on an insured’s property or at an insured’s event may qualify as an “occurrence” or fall outside an intentional acts exclusion. In addition, standard CGL policies include a separation of insureds provision, so that, in some cases, the policy will apply separately to each insured against whom a claim is made, or a lawsuit is brought. To generally avoid covering losses arising out of assaults and batteries, an insurance company may endorse an assault and battery exclusion onto a policyholder’s CGL policy. A standard CGL policy does not otherwise contain an assault and battery exclusion.
Assault and battery exclusions trace back years and, from the insurers’ perspective, were born of necessity. Insurers’ efforts to exclude coverage for at least some assaults and batteries under commercial liability insurance policies began with the definition of “assault and battery” in relation to an “accident” when policies tied insurers’ defense and indemnity obligations to “accidents” rather than to “occurrences.” For example, the 1955 standard “Comprehensive General Liability Form” stated that the insurer would “pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person and caused by an accident.” The conditions section of the policy then provided that “[a]ssault and battery shall be deemed an accident unless committed by or at the direction of the insured.” Thus, the insured generally would have coverage for liability arising out of an assault or battery so long as the insured did not commit or direct the offense. Courts rationalized the policy wording and the results that it potentially produced on the basis that, while “it would be contrary to public policy to indemnify a person for a loss incurred as a result of his own willful wrongdoing,” the public policy underlying “the exclusory clause” did not apply where liability was “imposed upon an insured for an assault and battery in which he himself took no part.”
In 1966, standard CGL policies transitioned from “accident” based coverage to “occurrence” based coverage. The 1966 policy form defined “occurrence” to mean “an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured. . . .” The 1966 policy form did not define “accident” or refer to “assault and battery.” The policy also did not include an intentional acts exclusion. As a result, the insured generally would have coverage for an assault or battery if the insured did not expect or intend the associated bodily injury.
The 1973 edition of the standard CGL policy slightly changed the definition of “occurrence” (but not materially for present purposes), and likewise did not include an intentional acts exclusion. It was not until 1986 that the standard CGL policy adopted the definition of “occurrence” and intentional acts exclusion in use today. As previously noted, however, those developments did not necessarily limit in significant fashion CGL insurers’ potential defense and indemnity obligations to their insureds that were sued for liability arising out of assaults and batteries.
Of course, carriers in many instances did not want to insure policyholders—or certain categories or classes of policyholders—for liability arising out of assaults and batteries. This was true regardless of the perpetrator’s identity or status or the insured’s intent or expectations. Indeed, that reluctance existed even when standard CGL policies stated that “accidents” included assaults and batteries so long as the offense was not committed by the insured or at the insured’s direction. For these insurers, the obvious solution was not to insure businesses or organizations that might reasonably be expected to produce claims arising out of assaults and batteries. At the same time, that approach was commercially limiting. It accordingly made more sense to some insurers to attempt to avoid coverage for liability arising out of assaults and batteries, rather than to forego altogether the premiums that might be earned from businesses or organizations that predictably produce related claims. In light of that recognition and given the emergence of “occurrence” based coverage, courts’ generally pro-insured interpretation of “expected or intended” injury language in policies, and separation of insureds’ provisions, insurers that wanted to bar coverage for liability arising out of assaults and batteries needed to draft appropriate exclusions. So, draft they did, with some basic versions of assault and battery exclusions essentially reversing the definition of “assault” as had been used in accident-based CGL policies. For example, the exclusion questioned in Great Southwest Fire Insurance Co. v. HV Corp. provided: “It is hereby understood and agreed that no coverage shall apply under this policy for any claim, demand or suit based on assault and battery, and assault and battery shall not be deemed an accident, whether or not committed by or at the direction of the insured.”
Over time, insurers modified their assault and battery exclusions to spell out the elimination of coverage for negligence claims and other causes of action arising out of assaults and batteries. To use a current example:
This insurance does not apply to:
Assault or Battery
“Injury” arising out of “assault or battery”, or any act or omission in connection with the prevention or suppression of “assault or battery”, whether caused by or at the instigation or direction of:
(1) Any insured;
(2) Any “employee” of the insured;
(3) A patron of the insured; or
(4) Any other person.
This exclusion applies even if the claims against any insured alleged negligence or other wrongdoing in the supervision, hiring, employment, training, monitoring of others, or failure to protect or warn others, by a person described in Paragraphs (1) through (4) above.
Alternatively, a contemporary assault and battery exclusion might provide:
Assault and Battery
This insurance does not apply to damages or expenses due to “bodily injury”, “property damage” or “personal and advertising injury” arising out of, resulting from, or in connection with:
1. Assault or battery, whether or not caused or committed by or at the instructions of, or at the direction of or negligence of you, any insured, any person, or any causes whatsoever;
2. The failure to suppress or prevent assault or battery by you, any insured, or any person;
3. The failure to provide an environment safe from assault or battery, including but not limited to the failure to provide adequate security, or the failure to warn of the dangers of the environment which could contribute to assault or battery;
4. The negligent employment, investigation, hiring, supervision, training, or retention of any person;
5. The use of any force to protect persons or property whether or not the “bodily injury”, “property damage”, or “personal and advertising injury” was intended from the standpoint of the insured or committed by or at the direction of any insured;
6. The failure to render or secure medical treatment or care necessitated by any assault or battery.
Assault includes, but is not limited to, assault, sexual abuse, sexual assault, intimidation, sexual harassment, verbal abuse, and any threatened harmful or offensive conduct between two or more persons, whether or not caused or committed by or at the instructions of, or at the direction of or negligence of you, any insured, any person, or any causes whatsoever.
Battery includes, but is not limited to, battery, sexual abuse, sexual battery, sexual molestation, and any actual harmful or offensive conduct between two or more persons, whether or not caused or committed by or at the instructions of, or at the direction of or negligence of you, any insured, any person, or any causes whatsoever.
Although litigation involving assault and battery exclusions in CGL policies is common and insurers’ use of these exclusions is long-standing, related scholarly analysis is lacking. This Article aims to fill that void at least in part. We begin in Part II with a discussion of the definitions of “assault” and “battery” as those terms are used in assault and battery exclusions. Part III examines the interplay between intentional acts exclusions and assault and battery exclusions, focusing on claims that the self-defense exception in an intentional acts exclusion renders an assault and battery exclusion ambiguous. Part IV explores the scope of assault and battery exclusions, including courts’ interpretation of the phrases “arising out of” and “arising from” as used in this context, and coverage for separate and independent acts of negligence. Finally, Part V analyzes the concurrent cause doctrine in connection with assault and battery exclusions.
Defining “Assault” and “Battery”
Policies containing assault and battery exclusions whether as part of their original terms or added by way of endorsement may define “assault” and “battery” within the exclusion itself or in a definitions section of the policy or endorsement. If a policy clearly defines these terms, a court interpreting the policy must apply those definitions. The court cannot disregard the policy definition of “assault” or “battery” in favor of a different definition that it prefers. “Reliance on defined terms in insurance policies . . . is necessary to determine the intent of the parties and integral to the application of basic principles of contract interpretation to insurance policies.”
Many policies do not define “assault” or “battery.” The failure to do so does not render a policy ambiguous. The fact that the terms “assault” and “battery” as used in an exclusion can encompass both criminal and tortious conduct means that the exclusion is broad, not that it is ambiguous. Of course, it is generally accepted that the failure to define a policy term does not make the term ambiguous. This is true even though the insurer could have defined the term had it chosen to do so. It is neither necessary nor practical for an insurance company to define all material terms in its policies.
Where unambiguous policy terms are not defined, courts apply their ordinary, plain, and usual meanings. Indeed, this is the rule regarding undefined policy terms generally. In applying the common or everyday meanings of insurance policy terms, courts often look for guidance in the state’s common law, state statutes, dictionaries, and legal dictionaries, with the latter two sources seemingly favored. A recent Louisiana case, Kazan v. Red Lion Hotels Corp., is illustrative.
In Kazan, Lia Kazan went to a motel to meet friends. She later returned to the motel parking lot to retrieve something from her car. Anthony Murray, another motel patron, attacked her in her car. Although the motel’s video surveillance system did not record the entire incident, the accompanying audio track captured Kazan “screaming ‘stop,’ ‘no,’ and calling for help accompanied by repeated honking of the vehicle’s horn.” Murray commandeered the car and, with Kazan in the passenger seat, drove away. The car was later found submerged in a lake; authorities pulled Kazan’s and Murray’s corpses from the water. Kazan’s death was classified as a homicide by drowning.
Kazan’s parents sued multiple parties for their daughter’s death, including the motel’s owner and its CGL insurer, Great Lakes Insurance Co. SE (Great Lakes). Great Lakes then filed a declaratory judgment action in which it asserted that it had no duty to defend or indemnify the other defendants. Great Lakes later moved for summary judgment based on the assault and battery exclusion in its policy, but the trial court denied the motion and an intermediate appellate court rejected Great Lake’s writ request. Great Lakes successfully sought review by the Louisiana Supreme Court.
The Great Lakes assault and battery exclusion provided that the policy did not apply “to ‘bodily injury,’ property damage,’ or ‘personal and advertising injury’ arising out of an ‘assault,’ ‘battery,’ or ‘physical altercation.’” The policy defined “assault” to mean “any attempt of [sic] threat to inflict injury on another including any conduct that would reasonably place another in apprehension of such injury.” “Battery” was defined as “the intentional or reckless physical contact with or any use of force against a person without his or her consent that entails some injury or offensive touching whether or not the actual injury inflicted is intended or expected.” Finally, the policy defined “physical altercation” as “a dispute between individual[s] in which one or more persons sustain bodily injury arising out of the dispute.”
The Kazan court focused on the plain meaning of “physical altercation,” which fairly characterized the encounter between Kazan and Murray as captured on the motel surveillance system’s audio track. In affording “physical altercation” its plain meaning, the court consulted the online version of a popular dictionary:
It is undisputed that Lia was taken against her will. Plaintiffs concede this is proven by the audio evidence. A “dispute” is a “verbal controversy” or “quarrel.” Similarly, a “quarrel” is “a usually verbal conflict between antagonists.” . . . Lia is clearly overheard to be in a “dispute” with Murray wherein she is taken against her will and ultimately “sustain[s] bodily injury” in her death by drowning.
While recognizing the tragedy of Kazan’s death, the court explained that Great Lakes was entitled to reasonably limit its contractual obligations to its insureds as it did here. Continuing, the court held that Great Lakes was entitled to summary judgment based on its clear and unambiguous assault and battery exclusion. The Kazan court accordingly reversed the trial court and entered judgment for Great Lakes.
Interplay with the Intentional Acts Exclusion and Alleged Ambiguity
Overview
Standard CGL policies contain an “Expected or Intended Injury” exclusion, commonly called an intentional acts exclusion, which provides that the policy does not apply to “‘bodily injury’ or ‘property damage’ expected or intended from the standpoint of the insured.” There is also an exception to the exclusion that states: “This exclusion does not apply to ‘bodily injury’ resulting from the use of reasonable force to protect persons or property.” For the intentional acts exclusion to apply, the insured must have intended both the subject act and to cause some injury or damage. The insured’s alleged intent to injure is generally judged according to a subjective standard.
In some cases, an insured’s act may implicate a policy’s intentional acts exclusion and its assault and battery exclusion. But that is not always so. Consider, for example, a case in which a restaurateur is sued for allegedly failing to protect one of her guests from a random attack by another guest or a stranger. The restaurateur would not be denied coverage under the intentional acts exclusion in her CGL policy because she did not expect or intend either the attack or the victim’s injuries. She would, however, lose coverage under the assault and battery exclusions quoted in Part I of this article.
Including both an intentional acts exclusion and an assault and battery exclusion in a policy does not alone create an ambiguity. One is not redundant in relation to the other. For that matter, claims that assault and battery exclusions are ambiguous for other reasons usually fail. Courts generally find assault and battery exclusions to be clear and unambiguous.
Where Ambiguity Arguably Lurks
As clear and unambiguous as assault and battery exclusions tend to be, insureds occasionally argue that a policy is ambiguous because the intentional acts exclusion contains an exception for the use of reasonable force to protect persons or property—often described by courts as the reasonable force or self-defense exception—but the assault and battery exclusion does not. In fact, assault and battery exclusions frequently do not contain reasonable force exceptions, nor do many expressly disclaim coverage where an assault or battery allegedly was an act of self-defense. A few federal district courts have held that these incongruities create ambiguity, while another district court explained that it would reach the same conclusion if necessary.
In Atain Specialty Insurance Co. v. Reno Cab Co., a taxi driver, Richard Warne, killed a passenger in an argument over a fare. Reno Cab and Warne were consequently sued for wrongful death, battery, and negligent training and supervision. Atain Specialty Insurance Co. (Atain), which insured Reno Cab under a CGL policy, filed a declaratory judgment action against Reno Cab in a Nevada federal court. Relevant here, Reno Cab’s CGL policy with Atain included an intentional acts exclusion that provided that the policy did not apply to bodily injury or property damage expected or intended from the insured’s standpoint, but that further stated: “This exclusion does not apply to ‘bodily injury’ resulting from the use of reasonable force to protect persons or property.” The Atain policy also contained an assault and battery exclusion that stated that the policy did not apply to bodily injury, property damage, or personal injury arising from:
- Assault and Battery committed by any Insured, any employee of any other person;
- The failure to suppress or prevent Assault and Battery by any person in 1. above;
- Assault or Battery resulting from or allegedly related to the negligent hiring, supervision, or training of any employee of the Insured; or
- Assault or Battery, whether or not caused by or arising out of, reckless or wanton conduct of the Insured, the Insured’s employees, or other persons lawfully or otherwise on, at or near the premises owned or occupied by the Insureds, or by any other person.
Atain contended that it had no duty to defend or indemnify Reno Cab under the assault and battery exclusion. Reno Cab argued that the assault and battery exclusion was ambiguous as to whether it applied to self-defense by virtue of the reasonable force exception in the intentional acts exclusion. The parties filed cross-motions for summary judgment. The court agreed with Reno Cab that the assault and battery exclusion conflicted with the reasonable force exception to the intentional acts exclusion and thus created ambiguity. More particularly, the court noted the following:
An assault or battery is an intentional act, which brings it within the scope of both the Assault and Battery Exclusion and the Expected or Intended Injury Exclusion, yet only the Expected or Intended Injury Exclusion includes a carve-out for self-defense. Accepting Atain’s contention that self-defense necessarily constitutes an assault and battery, this inconsistency leads to two competing interpretations of the Policy: on the one hand, the Policy covers self-defense characterized as an intentional act, and on the other hand, the Policy excludes coverage for self-defense characterized as an assault and battery. “An insurance policy is considered ambiguous if ‘it creates multiple reasonable expectations of coverage as drafted.’” . . . In light of this ambiguity, the Court must construe the Assault and Battery Exclusion in favor of coverage.
Atain argued that the reasonable force exception in the intentional acts exclusion could not render the assault and battery exclusion ambiguous because the exclusions operated independently and should be read separately. The court disagreed on the basis that, under Nevada law, an insurance policy must be read as a whole.
After rejecting Atain’s other arguments against coverage, the court found that Atain owed Reno Cab a defense in the underlying action. The court therefore granted Reno Cab summary judgment on that issue.
In Nautilus Insurance Co. v. 200 West Cherry Street, LLC, the court simply chose the insured’s interpretation of the policy over the insurer’s interpretation but additionally explained that it would have reached the same result had it found the policy to be ambiguous.
200 West arose out of a confrontation between William King, a customer of the Nauti-Goose Saloon, and Richard Woollens, a state police officer who worked as a security guard at the Nauti-Goose when off-duty. In his role as a security guard, Woollens badly injured King when he slammed him head-first into the ground while helping eject King and his unruly friends from the Nauti-Goose. King contended that he was unarmed and posed no threat to Woollens, while Woollens claimed that King was aggressive and had threatened to stab him. In any event, King sued 200 West Cherry Street, LLC (200 West or the Saloon), which owned and operated the Nauti-Goose, Woollens, and several other defendants in Maryland state court for battery and related offenses. Nautilus Insurance Co. (Nautilus) insured 200 West under a CGL policy that contained a standard intentional acts exclusion identical to the one in Atain Specialty and an endorsed assault and battery exclusion without a reasonable force exception. The exclusion provided:
Regardless of culpability or intent of any person, this insurance does not apply to “bodily injury”, “property damage”, “personal and advertising injury” or medical payments arising out of any:
1. Actual or alleged assault or battery;
2. Physical altercation; or
3. Any act or omission in connection with the prevention or suppression of such acts, including the alleged failure to provide adequate security.
This exclusion applies regardless of whether such actual or alleged damages are caused by any:
1. Insured;
2. “Employee”;
3. Patron; or
4. Any other person; and
whether or not such damages occurred at any premises owned or occupied by any insured.
This exclusion applies to:
1. All causes of action arising out of any assault or battery, or out of a physical altercation including, but not limited to, allegations of negligent hiring, placement, training, or supervision, or to any act, error, or omission relating to such an assault or battery, or physical altercation.
a. Emotional distress for loss of society, services, consortium or income; or
b. Reimbursement for expenses including, but not limited to, medical expenses, hospital expenses, or wages, paid or incurred, by such other person, firm or organization; or
2. Any claims or “suits” brought by any other person, firm or organization asserting rights derived from, contingent upon, or arising out of an assault or battery, or a physical altercation; and specifically excludes from coverage claims or “suits” for:
3. Any obligation to share damages with or repay someone who must pay damages because of the injury.
B. We will have no duty to defend or indemnify any insured in any action or proceeding alleging damages arising out of any assault or battery, or physical altercation.
All other terms and conditions of this policy remain unchanged.
Nautilus filed a declaratory judgment action in a Maryland federal court in which it asserted that it had no duty to defend or indemnify 200 West “because King’s injuries resulted from a physical altercation or battery, not an accident.” 200 West countered that, while Woollens intentionally hurled King to the ground, he used reasonable force and King’s injuries were accidental. The court further noted:
The Saloon maintain[ed] that the Battery Exclusion [was] subject to the Reasonable Force Exception. . . . According to 200 West, “any use of ‘reasonable force’ that caused ‘bodily injury’ would always be in the context of a ‘physical altercation.’” . . . As a result, if the Reasonable Force Exception does not apply to the Battery Exclusion, the Policy would not cover the use of reasonable force. In essence, the Reasonable Force Exception would be rendered “meaningless.” . . . Therefore, to give effect to both the Reasonable Force Exception and the Battery Exclusion, . . . the Reasonable Force Exception should be read to apply to both exclusions. . . .
Nautilus insisted that the reasonable force exception to its intentional acts exclusion applied solely to that exclusion. Relatedly, given the language of its assault and battery exclusion, Nautilus considered it clear that its policy excluded coverage for any bodily injury arising from an assault, battery, or physical altercation, even if the insured used reasonable force.
Nautilus further argued that its interpretation of the policy did not vitiate the reasonable force exception to the intentional acts exclusion. To illustrate this point, Nautilus posed a hypothetical case in which a store owner left a guard dog inside her store but did not post a warning sign outside the building. Then, in Nautilus’s scenario, a thief broke into the store, was bitten by the guard dog, and sued the owner. According to Nautilus, (1) the intentional acts exclusion would not apply because the owner used reasonable force to protect her property, and (2) the assault and battery exclusion would not apply because the dog bite did not “necessarily arise out of a ‘physical altercation.’”
The 200 West court embraced the insured’s interpretation of the policy. The court reasoned that it had to construe the reasonable force exception to the intentional acts exclusion and the assault and battery exclusion harmoniously to give effect to both provisions. Adopting 200 West’s urged interpretation, the assault and battery exclusion applied to injuries resulting from an insured’s use of unreasonable force in an altercation, thereby giving effect to the assault and battery exclusion without unreasonably limiting the scope of the reasonable force exception in the intentional acts exclusion. In contrast, the court said, Nautilus’s interpretation of the policy would essentially erase the reasonable force exception to the intentional acts exclusion.
The 200 West court was unimpressed by Nautilus’s hypothetical example intended to demonstrate that the assault and battery exclusion did not render the reasonable force exception to the intentional acts exclusion meaningless. According to the court, Nautilus’s example represented “an extremely unusual, if not unlikely, scenario.” Where an insurance policy is intended to cover a bar that employs security personnel, “‘reasonable force’ [was] far more likely to refer to the use of force ‘to handle unruly customers like King’” than it was to the deployment of a guard dog. In the context of this case, “Nautilus’s dog-bites-man theory sound[ed] just as rare and far-fetched as the figurative man-bites-dog story.”
Although the court simply agreed with 200 West’s policy reading and rejected the interpretation offered by Nautilus, the court clarified that it would reach the same result if it were to deem the policy ambiguous. The court explained that, where, as here, an exclusion is susceptible to more than one reasonable interpretation, it must be construed narrowly against the insurer. So construing the assault and battery exclusion, the court could only conclude that it did not apply to an insured’s use of reasonable force during a physical altercation.
There are many contrary cases. In Al Who Enterprises, Inc. v. Capitol Indemnity Corp., for example, two soldiers sued Al Who Enterprises (Al Who), which operated a nightclub called Al Who’s Place, after they were ejected from the establishment. They alleged that, when removing them, nightclub employees “assaulted and battered them without just cause or provocation, causing them to sustain multiple injuries.”
Al Who’s CGL policy with Capitol Indemnity contained a standard intentional acts exclusion with a reasonable force exception. The policy also bore an endorsement with an assault and battery exclusion which stated: “This insurance does not apply to bodily injury, property damage or personal injury arising out of assault, battery, or assault and battery.” The exclusion defined “assault and battery” to include “the ejection or exclusion with force or violence, or attempt thereof, of any person from the premises by the insured and his/her/its employees or agents.” The trial court held that the assault and battery exclusion precluded coverage for any cause of action arising from the “actual personal injuries constituting the assault and battery inflicted upon” on the soldiers. The soldiers appealed.
On appeal, the soldiers argued that the trial court erred by not analyzing whether the Al Who’s employees used reasonable force when ejecting them from the nightclub. The Al Who court quickly dispensed with this argument. The court pointed out that the reasonable force exception applied to the intentional acts exclusion. There was no such exception in the more specific assault and battery exclusion in the endorsement, which expressly modified the policy. Plus, the assault and battery exclusion defined “assault and battery” to include “the actual or attempted ejection or exclusion with force of any person from the premises by the insured and its agents or employees.” It was therefore clear that the reasonable force exception did not apply to the assault and battery exclusion and that the policy was “not ambiguous in this regard.”
For an insurer that wants to be certain that the reasonable force exception in the intentional acts exclusion will not lead a court to conclude that an assault and battery exclusion is ambiguous, the solution lies in drafting the assault and battery exclusion to avoid the alleged conflict. Bursey v. 497 Communipaw Avenue Corp. reflects this approach.
The defendant in Bursey, 497 Communipaw Avenue Corp. (Communipaw), owned a bar. Communipaw purchased a CGL policy from Mount Vernon Fire Insurance Co. (Mount Vernon). The policy contained a standard intentional acts exclusion that included a reasonable force exception. The policy also included an assault and battery exclusion added by endorsement, which excluded coverage for the following:
Any claim, demand or suit based on “assault” or “battery”, or out of any act or omission in connection with the prevention or suppression of any “assault” or “battery”, including the use of reasonable force to protect persons or property, whether caused by or at the instigation or direction of an insured, its “employees”, agents, officers or directors, patrons or any other person . . . .”
A coverage dispute arose between Communipaw and Mount Vernon after a bar customer, Beverly Bursey, sued Communipaw and the bar’s manager, Robert Venable, for allegedly allowing her to be mauled by other customers. Venable countered that Bursey instigated the altercation and assaulted him and that he hit her in self-defense and detained her until police arrived. Mount Vernon declined to defend Communipaw in Bursey’s lawsuit based partly on its policy’s assault and battery exclusion.
Communipaw contended that it was owed a defense because the Mount Vernon policy was ambiguous. Relying on the reasonable force exception in the intentional acts exclusion, Communipaw asserted that the policy covered injuries caused by an insured who was acting in self-defense. It then argued “that the self-defense exception in the intentional acts exclusion, read together with the absolute exclusion of ‘self-defense’ coverage in the assault and battery endorsement, created an ambiguity.” The court disagreed.
The Bursey court stated that the assault and battery exclusion in the endorsement clearly excluded all claims based on alleged assaults, even if the assaults were committed by someone acting in self-defense or breaking up a fight. Accordingly, it overrode the coverage provided in the policy for bodily injury resulting from the use of reasonable force to protect persons or property.
Summary and Synthesis
Insurers have several good arguments that the reasonable force exception to the intentional acts exclusion does not render an assault and battery exclusion ambiguous. First, applying the plain language of the policy, the assault and battery exclusion controls, regardless of whether it disclaims coverage for self-defense. This is because the insured’s or other person’s use of reasonable force to protect themselves still arose out of an assault or battery; in fact, it was a response to an assault or battery. Furthermore, a defensive use of force remains an assault or battery as those terms are commonly defined. As a Louisiana court explained:
The assertion of self-defense as a material issue in the determination of whether the [assault and battery] exclusion applies in this case is misplaced. While self-defense is a valid defense to a battery, in that it provides justification for the act, the assertion of the claim of self-defense does not mean that a tort, i.e., a battery, as is alleged in this case, did not occur. . . . For instance, in a civil context, the self-defense claim is an acceptable mechanism to assert . . . to mitigate one’s fault, and in a criminal context, it may be asserted to avoid the imposition of criminal sanctions for the intentional tort that has occurred. . . . However, as this court has recognized before, such “ ‘justification’ defenses are not based on the nonexistence of any essential element of the offense, but rather on the circumstances which make the [defendant’s] conduct excusable on policy grounds. . . .” We conclude, therefore, that under the facts of this case, whether [a patron] committed the act in self-defense is not a genuine issue of fact that is material to the question of whether an assault and battery occurred, or to the consequential question of whether Scottsdale’s assault and battery exclusion applies.
Second, and again considering the plain language of the policy, “‘[i]t is a general rule of contract interpretation that if a contract includes a level of specificity in one context and then omits that specificity in a similar context, such an omission is purposeful and should be given meaning.’” This rule applies to the interpretation of insurance policies just as it does to other types of contracts. Applying the rule here, an assault and battery exclusion’s omission of a reasonable force exception where such an exception is contained in the intentional acts exclusion should be understood to mean that the assault and battery exclusion precludes coverage even if the assault or battery involved the use of reasonable force to protect persons or property.
Third, where a policy contains an intentional acts exclusion with a reasonable force or self-defense exception and an assault and battery exclusion, and the insured is sued on a cause of action arising out of an assault and battery, the assault and battery exclusion specifically applies to the lawsuit. As a matter of basic contract law, specific language controls over general language in a contract where the two are inconsistent. Thus, the language of the assault and battery exclusion should control over allegedly inconsistent language in the intentional acts exclusion. That result leaves no ambiguity to be resolved against the insurer.
For a policyholders, an obvious counter-argument is the specific-over-general rule does not apply where two contract clauses can reasonably be reconciled, and that is the situation where the reasonable force exception and the assault and battery exclusion both ostensibly apply to the same event. After all, the argument goes, honoring the reasonable force exception in an appropriate case does nothing to impair the assault and battery exclusion’s function in other cases where self-defense is not an issue. Alternatively, a policyholder might argue that the reasonable force exception is the specific provision that should control over the more general assault and battery exclusion.
Neither argument is compelling. As for the first, the reasonable force exception to the intentional acts exclusion and the assault and battery exclusion necessarily conflict in any case where an assault or battery allegedly was defensive, regardless of whether the assault and battery exclusion expressly disclaims coverage for self-defense. To reiterate, (1) a defensive assault or battery is still an assault or battery; and (2) the insured’s or other person’s act of self-defense still arose out of an assault or battery; again, it was a response to the assailant’s attack.
With respect to the second, it either overlooks or disregards the reasonable force exception’s location in the intentional acts exclusion, which is not as specific as the assault and battery exclusion. Put another way, the correct focus is the relative specificity of the exclusions as a whole—not simply their exceptions.
Fourth, assault and battery exclusions typically are added to CGL policies through endorsements. Fundamentally, where the language of an endorsement and language in the body of the policy conflict, the endorsement prevails. Indeed, an endorsement is intended to change the terms of the policy to which it is attached. Endorsements are enforced over conflicting policy terms on the theory that endorsements reflect the contracting parties’ later expression of intent. Consistent with that theory, the addition of an assault and battery exclusion to an insurance policy by way of endorsement reflects the parties’ specific intent to exclude coverage for assaults and batteries to achieve a lower premium for the policyholder and reduced risk for the insurer. Accordingly, an assault and battery exclusion should override the reasonable force exception in an intentional acts exclusion in a case where the insured was acting in self-defense.
Good though these arguments are, no argument is ever guaranteed to impress a court. The best practice for insurers that want to avoid potentially having to defend and indemnify insureds in connection with claims tied to alleged acts of self-defense is to draft assault and battery exclusions to bar coverage for any claim or suit arising out of any assault, battery, or physical altercation, including those involving the use of reasonable force to protect persons or property. Bursey v. 497 Communipaw Avenue Corp., among other cases, demonstrates the wisdom of that approach.
The Scope of the Assault and Battery Exclusion
“Arising Out of” or “Arising from” Assault and Battery
In addition to generally being viewed by courts as clear and unambiguous, assault and battery exclusions apply to a wide range of claims or causes of action. To lay some foundation, assault and battery exclusions typically preclude coverage for damages because of bodily injury, property damage, or personal injury “arising out of” or “arising from” an assault, battery, or physical altercation. The analogous phrases “arising out of” and “arising from” are unambiguous. The term “based on,” which some courts equate with “arising out of” or “arising from,” is similarly unambiguous.
The clear majority of courts construe the phrase “arising out of” broadly.
The phrase includes or incorporates linkages such as “flowing from,” “growing out of,” “having a connection with,” “having its origin in,” “incident to,” “originating from,” or “as a result of.” In short, any causal relationship between an assault or battery and a plaintiff’s claims triggers the exclusion; a direct causal link is not required. Indeed, “[a] claim need only bear an incidental relationship to the described conduct for the exclusion to apply.” Likewise, “arising out of” does not refer to or require proximate cause; again, any causal link or relationship between an assault or battery and a plaintiff’s claim brings the claim within the exclusion. Or, as some courts explain, an assault and battery exclusion applies to a plaintiff’s claim if no cause of action would exist “but for” the assault or battery. “Arising from” is afforded the same expansive interpretation as “arising out of,” as are the phrases “based on” and “results from” where a policy substitutes one of those phrases for “arising out of.”
Representative Cases
Lift-Up, Inc. v. Colony Insurance Co. exemplifies courts’ broad interpretation of “arising out of.” The insured in that case, Lift-Up, rented and sold wheelchair accessible vans and modified such vans for customers. It was insured under a garage liability policy issued by Colony Insurance Co. (Colony) that included an assault and battery exclusion that was added by endorsement.
Dennis Kinman (Kinman), who was paraplegic and moved about in a motorized wheelchair, bought a van through Lift-Up and contracted with Lift-Up to modify the van for his use. Kinman was dissatisfied with Lift-Up’s work, and he repeatedly returned the van for repairs. In December 2016, he and his wife, Amy, went to Lift-Up to pick up the van after a round of repairs. While at the shop, Kinman argued with Lift-Up’s president, Bruce Kutner. Their dispute turned physical when Kutner slapped Kinman’s baseball cap off his head. When Kutner noticed that Amy Kinman had recorded the encounter on her cell phone, he snatched the cell phone from her and profanely threatened to break it. Kinman then drove his motorized wheelchair toward Kutner to retrieve his wife’s cell phone. As Kinman approached, Kutner grabbed Kinman’s arm and his wheelchair to divert him, which caused Kinman to fall out of the chair and suffer serious injuries.
The Kinmans sued Kutner and Lift-Up for negligence, bolstered by an affidavit from Kutner swearing that he did not intend to hurt Kinman when he tried to steer him away. After Colony declined to defend Lift-Up, the Kinmans and Lift-Up entered into an $850,000 consent judgment. Kutner and Lift-Up then sued Colony in a declaratory judgment action. The trial court awarded Colony summary judgment based partly on its assault and battery exclusion. Colony’s assault and battery exclusion “exclude[d] liability coverage for any bodily injury arising out of an assault, battery, or assault and battery caused directly or indirectly by anyone by any means whatsoever.”
The Kinmans appealed. They argued that the trial court erroneously failed to focus on the discrete act that proximately caused Kinman’s injuries, that is, Kutner’s allegedly careless attempt to divert Kinman’s wheelchair when Kinman approached him. The appellate court agreed with the trial court that Kutner either assaulted Kinman or attempted to do so when he slapped the cap from his head and that he assaulted or battered Amy Kinman when he grabbed her cell phone and crudely threatened to break it. The court further concluded that Kinman’s injuries arose out of those acts.
The Lift-Up court explained that Colony’s assault and battery exclusion precluded coverage for injury claims arising out of an assault or battery, not just injuries caused by an assault or battery. Furthermore, and as the Kinmans conceded, Connecticut courts construe the phrase “arising out of” in an insurance policy expansively. The court then put the broad meaning of “arising out of” in context:
[A]n injury need not be “proximately caused” by an act or occurrence in order to arise out of such an act or occurrence within the meaning of an insurance contract. It is sufficient to show . . . that an accident or injury “was connected with,” “had its origins in,” “grew out of,” “flowed from,” or “was incident to” an incident or occurrence. . . . Applying that meaning to the phrase “arising out of” . . . in the present case, it is clear that Kinman’s injuries arose out of an assault or battery or both. . . .
If not for Kutner escalating the verbal argument into verbal abuse and engaging in offensive contact with both of the Kinmans, Kinman would not have moved his wheelchair in Kutner’s direction and Kutner would not have had the opportunity to grab Kinman or his wheelchair. . . . While the Kinmans claim that Kutner acted negligently when he grabbed Kinman and the wheelchair . . . those acts and Kinman’s injuries nevertheless arose out of Kutner’s instigating intentional acts of slapping the baseball cap off Kinman’s head and grabbing Amy Kinman’s cell phone and threatening to break it.
As a result, the court concluded that Colony owed no duty to defend Lift-Up under the assault and battery exclusion. After considering a final issue, the court affirmed the trial court’s judgment for Colony.
Great Lakes Insurance SE v. Andrews further illuminates the meaning of “arising out of.” The insureds in Great Lakes were RAJJ Entertainment (RAJJ), which operated a bar called the Tool Shed Lounge, and RAJJ’s owner, Ray Perrin. A Tool Shed employee, Kyle Buelterman, clobbered a customer, Michael Andrews, in the bar’s parking lot. Andrews sued RAJJ and Perrin for negligence. A jury held the defendants liable for (1) failing to warn or provide adequate security; and (2) negligently hiring, retaining, or supervising Buelterman.
Great Lakes Insurance SE (Great Lakes) sued RAJJ and Perrin in federal court to obtain a declaration that it had no duty to indemnify either one. Great Lakes relied on the assault and battery exclusion in its policy, which stated in pertinent part:
This insurance does not apply to “bodily injury” . . . arising out of an “assault”, “battery”, or “physical altercation”:
a. Whether or not caused by, at the instigation of, or with the direct or indirect involvement of an insured, an insured’s employees, patrons, or other persons in, on, near, or away from an insured’s premises; or
b. Whether or not caused by or arising out of an insured’s failure to properly supervise or keep an insured’s premises in a safe condition; or
c. Whether or not caused by or arising out of any insured’s act or omission in connection with the prevention, suppression, or failure to warn of the “assault”, “battery”, or “physical altercation”, or providing or not providing or summoning or not summoning medical or other assistance in connection with the “assault”[,] “battery”, or “physical altercation”, including but not limited to, negligent hiring, training, or supervision; or
d. Whether or not caused by or arising out of negligent, reckless, or wanton conduct by an insured, an insured’s employees, patrons, or other persons.
The district court awarded Great Lakes summary judgment, and RAJJ and Perrin appealed to the Eighth Circuit.
On appeal, RAJJ and Perrin contended that the assault and battery exclusion did not apply because Andrews’s lawsuit “‘arose out of’ their negligence—not any assault, battery, or physical altercation.” The court considered this argument meritless. As the court pointed out, the assault and battery exclusion focused on “how the bodily injury arose, not how the lawsuit arose.” At most, Andrews’s injuries arose out of RAJJ’s and Perrin’s negligence in addition to Buelterman’s attack, but that did not matter because the exclusion expressly contemplated that possibility as reflected in parts (b) and (c).
RAJJ and Perrin made several other arguments for coverage, but they were also meritless. The Great Lakes court therefore affirmed the district court’s grant of summary judgment to Great Lakes.
Summary
If a claim or lawsuit against an insured “arises out of, “arises from,” or is “based on” an assault, battery, or physical altercation, the plaintiff’s theory of liability does not matter. Couching a claim in terms of negligence will not avoid an assault and battery exclusion where the claim arises out of an assault or battery. The exclusion envelopes all claims or theories of liability arising out of an assault or battery. This point is especially clear in light of many insurance companies’ use of comprehensive assault and battery exclusions, which, for example, expressly exclude coverage for claims and suits arising out of the insured’s alleged failure to prevent or suppress assaults or batteries, failure to maintain a safe premises, or failure to render or summon medical aid or other assistance, as well as claims and suits arising out of allegedly negligent hiring, training, retention, or supervision of employees or others by the insured.
Separate Claims or Causes of Action
Although an assault and battery exclusion broadly precludes coverage for injuries arising out of an assault or battery, a plaintiff may allege claims or causes of action for injuries that are separate and distinct from any injuries caused by an assault or battery. An assault or battery exclusion will not preclude coverage for the claims that are, in fact, separate and distinct from the assault or battery.
In Livebytheparkpalmsprings, LP v. Arch Specialty Insurance Co., for instance, a transient trapped a tenant in an apartment building elevator by pressing the elevator’s “stop” button after the doors closed, thereby falsely imprisoning her. He then tried to rape her. The transient’s false imprisonment of the tenant began as soon as he stopped the elevator and continued throughout his subsequent assault, battery, and attempted rape of the tenant. The apartment owner’s insurer, Arch Specialty, denied coverage based on the assault and battery exclusion in its policy, but the court concluded that a reasonable layperson would believe that the policy “covered a false imprisonment claim that preceded an assault.” As a result, Arch Specialty’s reliance on its assault and battery exclusion to defeat coverage failed.
Alternatively, the allegedly separate or distinct offense may occur after an assault or battery has been committed, as in Barnard v. Menard, Inc. In that case, Arthur Barnard went to a Menard’s store. Barnard and his fiancée purchased several items and left the store. As they walked to their van in the parking lot, a loss prevention officer employed by Menard’s security contractor, Blue Line, grabbed Barnard by the arm, slammed him into his van, and threw him on the ground. The loss prevention officer then ushered Barnard back into the store and accused him of shoplifting a cheap brass hasp.
Barnard sued Blue Line and Menard. He alleged that they were negligent in various respects, including claims tied to the loss prevention officer’s use of excessive force and battery, his unreasonably long detention in the store, and the failure to provide him with prompt medical care. Capitol Specialty Insurance Corp. (Capitol) insured Blue Line and Menard, the latter as an additional insured. When Barnard sued them, Blue Line and Menard filed third-party complaints against Capitol seeking a defense and indemnity. Capitol denied coverage based on the assault and battery exclusion in its policy. The trial court awarded Capitol summary judgment, reasoning that all of Barnard’s claims arose out of, or were related to, an assault or battery. Blue Line and Menard appealed to the Indiana Court of Appeals.
The Barnard court rejected Capitol’s assertion that the entire incident arose out of or was related to the loss prevention officer’s battery of Barnard in the parking lot, liability for which was excluded under the assault and battery exclusion. The court reasoned that “[w]hat occurred inside the store was separate from and unrelated to what occurred outside in the parking lot.” In other words, there was not “one continuous, ongoing incident that [was] categorically excluded from coverage.” Because Capitol’s assault and battery exclusion did not apply to Barnard’s false imprisonment and other post-battery allegations, the insurer owed a duty to defend Blue Line and Menard. The Barnard court therefore reversed the trial court’s judgment for Capitol.
For an insurer looking to avoid the results in Livebytheparkpalmsprings and Barnard, salvation lies in the use of tailored exclusionary wording, as the Ninth Circuit’s decision in 101 Ocean Condominium Homeowners Ass’n v. Century Surety Co. reflects. 101 Ocean grew out of Robert Marlin’s lawsuit against the 101 Ocean Condominium Homeowners Association (the HOA) for assault, battery, and negligence. Trouble started when Marlin went to the HOA office to get a copy of some documents. The HOA’s manager, Flo Ginsburg, called the HOA president, Frank Cornell, to ask if she could give Marlin the documents. Cornell told Ginsburg not to do so. Cornell and another man, Daniel Hall, then went to the HOA office. According to Marlin’s complaint:
Cornell . . . confronted [Marlin]. [Marlin] advised Cornell that he wanted to make copies of the Documents at his residence . . . and immediately return the Documents. Cornell then shoved [Marlin] two times and blocked the only entrance/exit to the office and detained [Marlin].
A scuffle between Cornell and [Marlin] then ensued. Hall, who was summoned by Ms. Ginsburg, appeared at the office, grabbed [Marlin] . . . and instructed [Marlin] to leave the office. [Marlin] complied with Hall’s instructions, left the office with the Documents, walked down a stairway, through a gate and halfway across the Building’s pool deck.
Approximately several minutes after having left the Association’s office and proceeding across the pool deck towards [Marlin’s] residence, Hall who had been following [Marlin] without any warning or notice again grabbed [Marlin] from behind in a bear hug and threw him to the cement floor. Cornell then jumped on top of [Marlin] and attempted to wrestle the Documents from [Marlin’s] left hand. The actions of Hall and Cornell caused a broken bone in [Marlin’s] left hand and multiple contusions to [Marlin’s] back, inside of both upper arms, elbows, and knees.
The HOA was insured under a Century Surety Co. (Century) policy that contained an assault and battery exclusion, which stated that the policy excluded coverage where “any actual or alleged injury arises out of a chain of events which includes assault or battery, regardless of whether assault or battery is the initial or precipitating event or a substantial cause of injury.” Century declined to defend the HOA against Marlin’s lawsuit based on the exclusion. The HOA then sued Century for a declaratory judgment, breach of contract, and bad faith in a California federal court. The district court held that Century had no duty to defend the HOA under the assault and battery exclusion, and the HOA appealed.
On appeal, the HOA argued that Marlin could have asserted a false imprisonment claim, which would have created the potential for coverage, and thus Century owed the HOA a defense in Marlin’s case. The 101 Ocean court rejected the HOA’s argument. Even if Marlin had pleaded false imprisonment as a separate theory of recovery, “that injury would have arisen out of a chain of events that included an assault or battery, so the exclusion would still apply.” Thus, the 101 Ocean court affirmed the district court judgment for Century.
Concurrent Causation
Overview
Finally, whether an insured receives a defense or indemnity from its CGL insurer with respect to a lawsuit that seeks damages arising out of an assault or battery may depend on whether there is a “concurrent cause” of the plaintiff’s injuries. Under the “concurrent cause” or “concurrent causation” doctrine, “‘where an insured risk and an excluded risk constitute concurrent proximate causes of an accident, a liability insurer is liable as long as one of the causes is covered by the policy.’” For the doctrine to apply, “the injury must have resulted from a covered cause that is truly independent and distinct from the excluded cause.” If the excluded cause of the injury “is merely incidental to the covered cause, that is, if the covered cause could occur without the excluded cause, then the two causes are independent and distinct,” and the concurrent causation doctrine applies. On the other hand, if the covered conduct and the excluded conduct are inseparable or intertwined, the concurrent cause doctrine does not apply. Nor does the doctrine apply where both alleged causes of the loss are excluded.
Illustrative Cases
Planet Rock, Inc. v. Regis Insurance Co. illustrates the application of concurrent causation to find coverage in an assault and battery case. The insured, Planet Rock, was a nightclub in Jackson, Tennessee. One night, two Planet Rock customers, Craig Williams and Benjamin Blackwell, argued inside the club. They then adjourned to a nearby parking lot where they fought. Blackwell knocked out Williams. Planet Rock employees carried the unconscious Williams back into the club and laid him on a couch in the club’s offices. When they later checked on him, they discovered that he had died from his injuries.
Williams’ parents sued Planet Rock for their son’s wrongful death. They alleged that Planet Rock employees ordered Williams and Blackwell to leave the nightclub in anticipation of their fight. They further alleged in their complaint:
21. At no time, while Craig Williams was still alive and physically situated within the offices of Defendant Planet Rock, did any agent, employee or servant of Defendant Planet Rock call for medical assistance. In fact, an employee of Defendant Planet Rock called and canceled a request for police assistance after the fight had begun.
22. Sometime later and without the benefit of medical assistance, the Plaintiffs’ deceased, Craig Williams, died of the injuries he received in the vicious attack conducted by Defendants Blackwell and Lewis.
* * *
42. Upon being informed of the serious injuries to the deceased, Defendant Planet Rock, by and through its agents, servants or employees, voluntarily undertook the medical care of . . . Craig Williams. Defendant Planet Rock, by and through its agents, servants or employees, undertook the medical care of . . . Craig Williams in a grossly negligent manner, failing or refusing to make available professional medical assistance which was available, thereby denying the deceased proper medical care ultimately leading to and proximately causing his death. The medical care provided by Defendant Planet Rock’s employees, agents or servants fell below the minimum acceptable standard of medical care recognized in like or similar circumstances . . . by those health care professionals familiar with said standard of care.
Planet Rock was insured under a CGL policy issued by Regis Insurance Co. (Regis) that included a broad assault and battery exclusion. The policy also provided incidental medical malpractice liability coverage through the following language:
The definition of bodily injury is amended to include Incidental Medical Malpractice Injury.
Incidental Medical Malpractice Injury means injury arising out of the rendering of or failure to render, during the policy period, the following services.
(A) medical, surgical, dental, x-ray or nursing service or treatment or the furnishing of food or beverages in connection therewith . . . .
Regis refused to defend or indemnify Planet Rock in the wrongful death action based on its policy’s assault and battery exclusion. The case proceeded to a bench trial, where the court found that Blackwell “intentionally battered” Williams. The court further found that Planet Rock “voluntarily undertook the duty of medical care and custody” of Williams after the fight, negligently failed to render appropriate medical care to Williams, and additionally failed to summon professional medical assistance, “which, as a matter of law, was the proximate cause of . . . Williams’ death inasmuch as, had medical care been called, and rendered to . . . Williams, . . . Williams would have survived his injuries . . . .”
After judgment was entered in the wrongful death suit, Planet Rock sued Regis for breach of contract. The trial court in the coverage case held for Planet Rock based on the finding in the wrongful death case that Williams’ death was proximately caused by Planet Rock’s failure to provide him with appropriate medical care, which was conduct covered under the Regis policy. Regis appealed to the Tennessee Court of Appeals.
Regis argued on appeal that its assault and battery exclusion was an “absolute defense” to Planet Rock’s claims because “there would have been no injury or death to Williams but for the assault and battery.” The court rejected this argument insofar as Regis’s duty to defend was concerned because the Williams’ allegations that Planet Rock failed to provide their son with adequate medical care created at least the possibility of coverage notwithstanding the assault and battery exclusion.
With respect to Regis’s duty to indemnify Planet Rock, the court concluded that the outcome was controlled by the Tennessee Supreme Court’s 1991 decision in Allstate Insurance Co. v. Watts, in which the court stated that coverage should attach “where a nonexcluded cause is a substantial factor in producing the damage or injury, even though an excluded cause may have contributed in some form to the ultimate result and, standing alone, would have properly invoked the exclusion contained in the policy.” In enforcing the concurrent cause doctrine as articulated in Watts, the Planet Rock court took special note of the Watts court’s rejection of “‘the contention that there can be no coverage when the chain of events leading to the ultimate harm is begun by an excluded risk, concluding instead that coverage cannot be defeated simply because excluded risks might constitute an additional cause of the injury.’” Accordingly, the Planet Rock court affirmed the trial court judgment for Planet Rock.
In Hunt v. Capitol Indemnity Corp., the court reached a different conclusion when it applied the concurrent cause doctrine. There, Michael Hunt, Jr. was stabbed and killed outside a St. Louis bar called Justin’s Lounge. His parents sued Gerald Haverfield (Haverfield), who owned Justin’s Lounge, for their son’s wrongful death. They alleged that Hunt was murdered by third parties and that Haverfield’s negligence directly and proximately caused their son’s death. The parties waived a jury trial, and Haverfield admitted liability. The trial court found that Haverfield “negligently failed to protect Michael Hunt, Jr. ‘from his assailants, who were known dangerous, intoxicated patrons on Haverfield’s premises; and that Haverfield negligently failed to remove these patrons from said premises after prior similar violent acts by these patrons against other persons on said premises.’” The trial court further found that Haverfield’s negligence directly caused Hunt’s death and awarded his parents $150,000.
Haverfield was insured under a Capitol Indemnity Corp. (Capitol Indemnity) liability insurance policy with an assault and battery exclusion added by endorsement. The exclusion precluded coverage for bodily injury, property damage, or personal injury “arising out of assault, battery, or assault and battery.”
The plaintiffs sued Capitol Indemnity in an equitable garnishment action to collect their judgment. Capitol Indemnity counterclaimed for a declaratory judgment based on its assault and battery exclusion. Capitol Indemnity and the Hunts filed cross-motions for summary judgment. The trial court determined that the exclusion did not expressly exclude coverage for damages arising from an assault and battery caused by a negligent act or omission that did not involve force or violence by the insured. Haverfield did not kill Hunt; rather, he negligently set the stage for Hunt’s murder. The court further found that Capitol Indemnity’s assault and battery exclusion did not specifically exclude concurrent causes of assault and battery. As a result, the court granted the Hunts’ summary judgment motion, denied Capitol Indemnity’s cross-motion, and awarded the Hunts the policy’s liability limit of $100,000. Capitol Indemnity appealed.
The Hunt court quickly concluded that Capitol Indemnity’s assault and battery exclusion barred coverage for negligence claims arising out of an assault and battery. Thus, the exclusion applied to Haverfield’s negligence in failing to protect Hunt from his assailants and failure to remove the assailants from Justin’s Lounge.
The court next addressed Capitol Indemnity’s argument that Haverfield’s negligence “was not a separate, concurrent and non-excluded cause” of Hunt’s death. The plaintiffs, on the other hand, asserted that Haverfield’s negligence was “a separate and non-excluded cause” of their son’s death.
The Hunt court sided with Capitol Indemnity and explained that the concurrent cause doctrine did not apply because the assault and battery was not incidental to the plaintiffs’ negligence claims. “Without the underlying assault and battery,” the court observed, “there would have been no injury and therefore no basis for [the] plaintiffs’ action against Haverfield for negligence.” Rather than being mutually exclusive, the assault and battery and Haverfield’s negligence were “related and interdependent.” In short, Haverfield’s negligence was not a separate, covered cause of Hunt’s death apart from the assault and battery. The court therefore reversed the trial court judgment for the plaintiffs.
Analysis
Concurrent cause analysis should seldom yield coverage where a policy contains an assault and battery exclusion. Usually, the supposed concurrent cause of the plaintiff’s injuries—such as negligent hiring, negligent supervision, or the insured’s failure to warn or protect the plaintiff—will be a dependent or related cause rather than a separate and independent cause. Additionally, concurrent causation claims will often be defeated by exclusionary language that also encompasses the allegedly covered concurrent cause of the plaintiff’s injuries. Great Lakes Insurance SE v. Andrews spotlights this point.
Recall that in Great Lakes, Kyle Buelterman, an employee of the Tool Shed Lounge, which was run by RAJJ Entertainment (RAJJ) and owned by Ray Perrin, punched a patron, Michael Andrews, in the bar’s parking lot. In attempting to avoid the assault and battery exclusion in their policy with Great Lakes Insurance SE (Great lakes), RAJJ and Perrin argued that their negligence—specifically, their failure to provide Andrews with safe travel, failure to warn or protect Andrews, failure to provide adequate security, and negligent hiring, retention, or supervision of Buelterman—was a separate, covered cause under the concurrent cause doctrine. Their argument failed. They were undone by the plain language of the Great Lakes assault and battery exclusion, which provided that the policy did not apply to bodily injury arising out of an assault, battery, or physical altercation:
b. Whether or not caused by or arising out of an insured’s failure to properly supervise or keep an insured’s premises in a safe condition; or
c. Whether or not caused by or arising out of any insured’s act or omission in connection with the prevention, suppression, or failure to warn of the “assault”, “battery”, or “physical altercation”, or providing or not providing or summoning or not summoning medical or other assistance in connection with the “assault”[,] “battery”, or “physical altercation”, including but not limited to, negligent hiring, training, or supervision; or
d. Whether or not caused by or arising out of negligent, reckless, or wanton conduct by an insured, an insured’s employees, patrons, or other persons.
RAJJ’s and Perrin’s negligent acts all fell within the exclusion. Because neither RAJJ’s and Perrin’s negligence nor Buelterman’s assault and battery were covered causes of Andrews’ injuries, it did not matter how allegedly independent and distinct they were for the purposes of the concurrent cause doctrine.
Insurers that are concerned about the application of the concurrent cause doctrine may contract around the doctrine. Courts generally enforce anti-concurrent causation language in insurance policies. In Atlantic Casualty Insurance Co. v. Cheyenne County, for example, the court explained that an assault and battery exclusion that stated that the policy did not apply where “any actual or alleged injury arises out of any combination of an assault and/or battery-related cause and a non-assault or battery-related cause” expressly circumvented the concurrent cause doctrine. Saying that the exclusion “could not be clearer,” the court concluded that the policy excluded coverage for any injury that arose out of an assault or battery, regardless of any concurrent causes.
Conclusion
Owners and operators of various businesses and organizations that are insured under CGL policies may find their coverage limited by assault and battery exclusions that are endorsed onto their policies. Assault and battery exclusions are generally clear and unambiguous and broadly preclude coverage for liability arising out of assaults and batteries, regardless of the cause of action alleged. Only rarely will the concurrent cause doctrine create coverage where a policy contains an assault and battery exclusion, and an insurer may contract around the doctrine’s application. For commercial insureds that are concerned about potential liability arising out of assaults and batteries, the solution is to either negotiate a policy without a related exclusion or, second best, to purchase a policy with the highest assault and battery sublimit possible.
