Pleading Can’t Change A Battery Into Negligence
Insurance companies don’t want to insure a bar against assault and battery because of the frequency of barroom fights causing injuries to patrons or employees of the bar. Some courts fall prey to the claim of a plaintiff that the assault or battery was negligence, insurers like the plaintiff, Catlin Specialty Insurance Group v. RFB, INC. d/b/a Max & Henry’s a/k/a Henry’s Sports Bar, Frank Clyburn, and Jess Bess, United States District Court, D. South Carolina, 2017 WL 2493125, Civil Action No. 2:16-3135-RMG, (06/08/17) by providing the coverage with a very small limit.
Defendant Jesse Bass alleges that on December 6, 2012, Cedrick Price, a bouncer at a bar owned by Defendant Frank Clyburn and Defendant RFB, Inc. (together, “Henry’s”), struck him with force sufficient to knock him unconscious and to inflict serious brain injury. Mr. Bass filed a federal lawsuit seeking damages. In that matter, claims against Elite Security have settled and Mr. Price is in default. Regarding Henry’s, Mr. Bass asserts a claim of negligence, alleging Henry’s breached its duty to exercise reasonable car in the hiring, supervision, and retention of Elite Security.
THE INSURANCE COVERAGE
Plaintiff Catlin Specialty Insurance Group issued a commercial general liability (“CGL”) policy to Henry’s that was in effect at the time of the incident. Catlin is defending Henry’s in the underlying lawsuit, subject to a reservation of rights. The policy limit is $1 million per occurrence. The policy, however, has an Assault and Battery Endorsement that sets a sub-limit of $25,000 per occurrence.
Catlin sued seeking a declaration that the Assault and Battery Endorsement applies to Mr. Bass’ claim against Henry’s. The underlying litigation has been stayed pending resolution of the present action.
The sole question before the Court is whether the CGL policy’s assault and battery sublimit applies to the December 6, 2012 incident in which Mr. Bass was injured. The sublimit applies to claims for bodily injury 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 conduct that places another in reasonable fear of bodily harm,” and a battery is “the actual infliction of any unlawful, unauthorized violence on the person of another. Mr. Bass alleges he was struck in the head, knocking him unconscious by Mr. Price. There is no genuine dispute that Mr. Bass’s alleges his injuries arise from an assault and battery.
Mr. Bass sued Henry’s for negligence, not the intentional torts of assault and battery.
The court recognized that alleging negligence in a case where a patron was battered is a common pleading practice. Since insurers who insure bars are reluctant to insure the bar against liability for barroom fights or for the actions of bouncers.Plaintiffs often attempt to plead into coverage by asserting negligence — attempts federal and state courts routinely reject.
Although the injuries may have been caused by the negligent acts of the defendant, that does not necessarily mean that they did not arise out of an assault and/or battery. Plaintiffs cannot mischaracterize intentional acts as negligence claims in order to avoid the exclusions contained within the insurance policy. Even if Henry’s was negligent, and even if that negligence proximately caused Mr. Bass’s injuries, Mr. Bass’s injury nonetheless arises out of a battery. Mr. Bass cannot avoid a policy sublimit by mischaracterizing Mr. Price’s admittedly intentional act as negligence.
If 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. Mr. Bass argued that “assault and battery” is ambiguous because the insurance policy does not define those terms. That argument is without merit. The terms assault and battery are well defined under South Carolina law and Mr. Bass apparently agrees with Catlin about the definition of those terms.
Mr. Bass also argued that there is a question of disputed material fact about whether Mr. Bass’s injuries arose from a battery. If Mr. Bass alleges Mr. Price acted in a lawful, legally authorized manner when he struck Mr. Bass, then he breached no duty owed Mr. Bass and neither Mr. Price nor his employer is liable for the resulting injury to Mr. Bass. If Mr. Bass does not allege Mr. Price acted lawfully, then there is no factual dispute.
Moreover, in the underlying litigation Mr. Bass has alleged Mr. Price acted unlawfully. alleging Mr. Price’s actions were “done with reckless disregard for Plaintiff’s rights”. Mr. Bass is estopped from arguing the opposite position in this coverage litigation.
Henry’s argues that summary judgment should be denied because it was not “adequately notified” of the assault and battery sublimit. Henry’s does not argue that it did not have actual notice of the policy limitation. Rather, Henry’s argues it was not “notified” that an assault and battery limitation on coverage could apply to claims arising from an assault and battery even if those claims are artfully pleaded as negligence. That argument is, of course, without merit.
The Court, following the law, granted Plaintiff’s motion for summary judgment and concluded that under the assault and battery endorsement of commercial general liability policy Plaintiff Catlin Specialty Insurance Company is not obligated to indemnify Defendant RFB, Inc. and Defendant Frank Clyburn for any amount above $25,000 with respect to the claims in Bass v. RFB, Inc., et al., Civ. No. 2:15-2410-RMG.
It seems injured plaintiffs need to try to make an assault and battery into a negligence action to gain the defendants insurance coverage that what was neither sought, provided nor available. The injured person should be pleased that the bar purchased a policy from Caitlin that provides $25,000 worth of coverage for a battery.
This article and all of the blog posts on this site digests and summarize cases published by courts of the various states and the United States. The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 49 years in the insurance business.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
Look to National Underwriter Company for the new Zalma Insurance Claims Library, at www.nationalunderwriter.com/ZalmaLibrary The new books are Insurance Law, Mold Claims Coverage Guide, Construction Defects Coverage Guide and Insurance Claims: A Comprehensive Guide
The American Bar Association, Tort & Insurance Practice Section has published Mr. Zalma’s book “The Insurance Fraud Deskbook” available at http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=214624, or 800-285-2221 which is presently available and “Diminution of Value Damages” available at http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=203226972
The author and publisher disclaim any liability, loss, or risk incurred as a consequence, directly or indirectly, of the use and application of any of the contents of this blog. The information provided is not a substitute for the advice of a competent insurance, legal, or other professional. The Information provided at this site should not be relied on as legal advice. Legal advice cannot be given without full consideration of all relevant information relating to an individual situation.