Jesse Bass was a guest at Henry’s Sports Bar in December 2012, when the bouncer struck him in the head with such force that he was knocked unconscious and suffered serious brain injury. Bass brought an action against Henry’s, the bouncer and the independent security firm, which employed the bouncer. The security firm resolved the claim and the bouncer failed to respond leaving the remaining claim against Henry’s. Caitlin Specialty Insurance Group issued a commercial general liability policy to Henry’s that was in effect at the time of the incident. That policy provided a limit of $1 million per occurrence, with an Assault and Battery Endorsement that set a sublimit of $25,000 per occurrence. Caitlin filed a declaratory judgment action seeking a determination that the Assault and Battery Endorsement applies to Bass’s claim against Henry’s, and thereby limits any recovery. Caitlin Specialty Insurance Group v RFB, d/b/a Max & Henry’s a/k/a Henry’s Sports Bar, et al. 2017 WL 2493125, June 8, 2017. Caitlin then filed its motion for summary judgment.
The sublimit of the Caitlin policy applies to claims for bodily injury, personal injury, advertising injury, or property damage:
Arising from an assault and battery or out of any act or omission in connection with the prevention, suppression or failure to protect or suppress such acts including the failure to warn, train, or supervise, whether caused by or at the instigation or direction of the insured, his employees, patrons, or other person.
In South Carolina, an assault is clearly defined as conduct that places another “in reasonable fear of bodily harm.” Battery is the infliction of unlawful, unauthorized violence on another. In the underlying action, Bass alleges the Defendants were negligent in failing to exercise due care in the hiring, supervision and retention of the bouncer. Bass went on to allege, however, that the bouncer struck him, thereby inflicting serious bodily injury. He offered corroborated testimony that he was “attacked” by the bouncer, leaving no genuine dispute that his injuries arose from an assault and battery.
While establishing that his injuries arose from being battered, Bass sued Henry’s for negligence, not assault and battery. Aware of insurers’ reluctance to insure bars against liability for barroom scuffles, overzealous bouncers, or over served patrons, plaintiffs often attempt to “find” coverage by pleading only negligence against bars, avoiding allegations of intentional torts that are almost always excluded under policies. Courts routinely reject these efforts, as demonstrated by a number of cases referenced by the court in Caitlin.
Additionally, Caitlin references numerous cases wherein various courts have recognized that while injuries may have occurred through the negligent actions of a defendant that does not mean they did not arise out of an assault and/or battery.
The court reasons that even if Henry’s was negligent, and such negligence was a proximate cause of Bass’s injuries, there is no question that Bass’s injuries were nonetheless the result of a battery. The policy sublimit cannot be avoided by mischaracterizing the bouncer’s admittedly intentional act as negligence on behalf of Henry’s. Or, as succinctly stated by the court “[I]f a sublimit for injuries arising from an assault and battery does not apply to punching a man in the head intentionally during a fight at a bar, then it is difficult to imagine when it would ever apply.” As a result, the court grants Caitlin’s motion for summary judgment, finding the sublimit of the assault and battery endorsement is applicable and that Caitlin’s duty to indemnify is limited accordingly.
Compare this case to its prequel, Certain Underwriters at Lloyd’s London v. Butler, 2017 WL 570024, February 13, 2017, summarized earlier this year by my colleague, Bruce Wallace. See "When an Assault is not an Assault," April 17, 2017. In Butler, the underlying case alleges that the plaintiff was a guest in an adult nightclub when shot in both legs. The plaintiff sued the adult nightclub and its owners in negligence, alleging they breached their duties to her by failing to secure the area by performing security checks for weapons; failing to properly check the identification of guests and failing to maintain proper control of the area.
Lloyd’s issued a general liability policy to the owners of the nightclub which was in effect at the relevant time and which contained an exclusion for any claim and/or cause of action arising from:
1. An assault and/or battery regardless of culpability of intent; or
2. A physical altercation; or
3. Any act or failure to act to prevent or suppress such assault and/or battery or physical altercation.
Lloyd’s filed a declaratory judgment action in the United States District Court, seeking a determination that the policy in question does not provide coverage for the claims in the underlying action due to the assault and battery exclusion and, as a result, Lloyd’s had no duty to defend or indemnify the Butlers. All Defendants in the declaratory judgment action failed to respond. Lloyd’s filed its unopposed motion for summary judgment, which the court denied.
At first glance, these opinions appear irreconcilable. They are, however, distinguished by the relief sought by the insurers, the allegations of the underlying complaints and the facts known to the court. In Butler, the insurer sought a finding that it had no duty to defend or indemnify. Because the underlying action alleged only that the plaintiff was shot in the insureds’ nightclub as a result of Defendants’ negligence, and avoided any allegations of intentional acts, the court lacked sufficient basis to grant Lloyd’s motion for summary judgment as to the duty to defend. Because the question of the duty to defend could not be answered in the insurer’s favor, based upon the allegations of the underlying Complaint, and because there were no findings of fact in the underlying case, the question of indemnity was premature.
In Caitlin, the insurer seeks the determination that the assault and battery endorsement is applicable and its duty to indemnify should be limited. The court determined that Bass’s injuries arose from an assault and battery based upon the allegations of the underlying Complaint, e.g. that the bouncer “…struck the plaintiff about his head, knocking him unconscious, inflicting serious bodily injury…” and the testimony of Bass that the bouncer attacked him. Consequently, the court ruled that the assault and battery sublimit applies.
Caitlin supports my colleague’s recommendation that carriers must develop the facts in the underlying claim in order to support their positions as to certain exclusions from coverage, particularly if the underlying Complaint is artfully drafted, avoiding allegations of intentional acts. Otherwise, when it comes to pleading, less will continue to be more.