In its recent decision in Tower Ins. Co. of New York v. Blocker, 2013 U.S. Dist. LEXIS 98296 (M.D. Fla.  July 15, 2013), the United States District Court for the Middle District of Florida had occasion to consider the scope of an assault and battery exclusion.

Tower Insurance Company insured JB Rentals under a general liability policy with the following assault and battery exclusion barring coverage for bodily injury:

            … arising from, due to or caused by:

(1) Assault and/or Battery committed by any insured, any employee of any insured, any patron or customer of the insured, or any other person; or

(2) The failure to suppress or prevent any Assault and/or Battery or any act or omission in connection with any Assault and/or Battery; or

(3) The negligent hiring, supervision or training of any employee or agent of the insured with respect to the events de-scribed in (1) and (2) above.

JB Rentals sought coverage for an underlying suit arising out of the stabbing of an individual on its premises.   The suit alleged that JB Rentals failed to maintain its premises in a safe condition and that it knew “that criminal acts or attacks were reasonably likely to be perpetrated unless defendants took steps to deter and prevent criminal acts and otherwise provide proper security.” 

Tower provided JB with a defense in the suit, but commenced a coverage litigation seeking a declaration of non-coverage based on the assault and battery exclusion.  The insured agreed that the underlying incident qualified as an assault and battery for the purpose of the exclusion.  It nevertheless argued that the exclusion was inapplicable to the theories of liability asserted by underlying plaintiff; namely, JB Rental’s negligent failure to have prevented the incident. 

Citing to numerous Florida decisions, the court observed that “Florida [courts] have consistently found the exclusion to apply even when the underlying action is couched in terms of negligence by the insured with regard to the premises.”  In particular, explained the court, the phrase “arising out of” is construed differently than the phrase “caused by” and “requires more than mere coincidence, a causal connection, between the conduct and the injury, but not does not require proximate cause.”  As such, and having concluded that the theories of negligence asserted against JB Rentals were causally connected to the alleged assault and battery, the court agreed that the exclusion negated Tower’s duty to defend or indemnify.