A California Appeals Court recently held that a wrongful death action against a security guard who shot a man while on duty was excluded under an “assault and battery” exclusion, even if the security guard acted in self-defense. Michael Krause, Sr., et al. v. Western Heritage Ins. Co., No. G041405 (Cal. App. 4th Dist. Aug. 2, 2010) (unpublished).

The security guard, while on patrol, shot and killed the driver of a pickup truck. According to the driver’s estate, the driver was on the premises to visit a girl he had met and acted innocently. According to the security guard, the driver acted menacingly, striking the guard twice with the vehicle. The security guard claimed he shot the driver in self defense, as the truck was once again accelerating toward him. The victim’s estate sued the security guard and his company for negligence.

The security company’s insurance policy excluded coverage for “‘bodily injury’ expected or intended from the standpoint of the insured,” but this exclusion did not apply to “‘bodily injury’ resulting from the use of reasonable force to protect persons or property.” The policy, by endorsement, also contained an exclusion for “‘bodily injury’ … arising out of assault or battery or act or omission in connection with the prevention or suppression of such acts . . . .”

The court first rejected the insured’s contention that the “assault and battery” exclusion conflicted with the carveback for “reasonable force,” creating an ambiguity. The court noted that the endorsement clearly stated that it changed the terms of the policy, meaning that it could have excluded coverage initially left intact under the main policy form. The court then held that the “assault and battery” exclusion applied. It was “clear,” said the court, that the security guard “purposefully” fired his weapon. Therefore, if his “self defense” were found “unreasonable,” the shooting necessarily would constitute assault and/or battery under California law. “Reasonable self defense,” meanwhile, could not result in coverage because a defense verdict would result and there would be no liability. Therefore, there was no potential for indemnification and no duty to defend.