The U.S. Eleventh Circuit Court of Appeals recently held that an insurer did not have a duty to defend or indemnify its insured for negligence claims brought against the insured, all of which ultimately arose out of an assault and battery when the policy included an assault, battery, or other physical altercation exclusion. Burlington Ins. Co., Inc. v. Normandy Gen. Partners, 2014 WL 1045737 (11th Cir. Mar. 19, 2014). 

The insured was sued by two people who were stabbed by a security guard employed by the insured. The claimants alleged various claims of negligence against the insured, including negligent training, negligent supervision, and respondeat superior. The insured sought defense and indemnity. The insurer initially defended under a reservation of rights and filed a declaratory judgment action to establish that it did not have a duty to defend or indemnify on the grounds that coverage was barred by an assault, battery or other physical altercation exclusion. The district court granted the insurer’s motion for summary judgment on the duty to defend issue, finding that the exclusion applied despite the fact that some of the claimants’ allegations were based on negligence because all of the claims ultimately arose out of the assault and battery committed by the security guard. The insured appealed. 

The Eleventh Circuit affirmed, finding that all of the claims against the insured arose out of the assault and battery committed by the security guard. The Eleventh Circuit determined that Florida courts have construed the phrase “arising out of” to mean originating from, incident to, or having a connection with. Because all of the negligence claims against the insured were connected to the underlying assault and battery by the security guard, the Eleventh Circuit concluded that those claims arose out of the assault and battery incident.