A federal court in Arkansas held where a liability policy’s assault and/or battery exclusion defines “assault and/or battery” as “use” of a firearm, the injury must be caused by a person using a weapon for the purpose of intimidating another or causing injury to another for the exclusion to apply. Atl. Cas. Ins. Co. v. Paradise Club, 2016 WL 6573978 (W.D. Ark. Nov. 4, 2016).

A club patron was watching her boyfriend participate in an amateur boxing match when an altercation took place and gunshots were fired, striking and injuring her. She sued the club alleging the club’s negligence caused her injuries. The club’s insurer filed for declaratory judgment and asserted that the policy’s assault and/or battery exclusion precluded coverage. The exclusion defined “assault and/or battery” as “intended to include, but not limited to, any injury of any kind resulting from the use, or threated use, of a gun, firearm, knife or weapon of any kind.” The insurer moved for summary judgment, and the club patron argued that the term “use” was ambiguous and that whether the gun which fired the rounds that struck her was in “use” at the time was a genuine issue of material fact. The insurer took the position that the term “use” is broad enough to apply to any discharge of a firearm, whether intentional or accidental and that other interpretations were unreasonable.

The court disagreed with both parties. It found the term “use” is not ambiguous, but interpreted the inclusion of the word “use” as implying a “user” which requires some volitional act on the part of the party who causes the injury. Further, taking into account the assault and battery context in which the word is used (in conjunction with descriptions of a physical weapon), the court held that the injury must not only be caused by a volitional act, but that “the user must be utilizing the gun as one would any weapon: as a means of intimidation or causing injury.” The court denied the motion for summary judgment, finding a genuine issue of material fact as to whether the bullet came from a gun that was being used as a means of causing intimidation or injury when it was discharged.