Assault or Battery Can Never be Fortuitous
By definition liability insurance can only indemnify an insured against a contingent or unknown event, an accident, injury that is fortuitous. By definition assault or battery are intentional acts, not accidental, and not fortuitous.
In Ronald P. Guste Husband Of/And Betty Anne Guste v. Earl Albert Lirette III, President Of/And Tiger Audio, L.L.C., And Earl Albert Lirette Jr., NO. 2017 CA 1248, State of Louisiana Court of Appeal First Circuit (June 4, 2018) coverage was refused and the insured and injured person sued the insurer seeking indemnity for injuries resulting from a battery because negligence was alleged in the suit.
An altercation between Ronald P. Guste and Earl Albert Lirette III resulted in litigation at Lirette’s business, Tiger Audio, L.L.C. Guste and his wife, Betty Anne Guste, sued Lirette and Tiger Audio seek damages for injuries allegedly sustained in the incident. According to the suit Guste entered the customer showroom of Tiger Audio to speak with Lirette about wages owed to Guste’s grandson. As Guste approached Lirette, who was standing behind a counter, Earl Lirette, III, came from behind the counter and violently assaulted and battered Ronald Guste, throwing him to the ground, causing severe injuries to his mind and body, including but not limited to a fractured hip, which rendered Ronald Guste bed-ridden and a permanent injury.
Lirette and Tiger Audio filed a third-party demand against their general liability insurer, Montpelier U.S. Insurance Company, contending Montpelier’s policy covered the alleged liability of Lirette and Tiger Audio and obligated Montpelier to defend them in the litigation. Guste also amended his petition to assert a direct claim against Montpelier as the alleged liability insurer for Lirette and Tiger Audio.
Montpelier filed a motion for summary judgment seeking dismissal of all claims against it, relying in relevant part on a policy exclusion applicable to bodily injury “arising out of assault and/or battery.” The trial court granted the motion.
The summary judgment procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of every action. In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria governing the trial court’s determination of whether summary judgment is appropriate.
Insurance Coverage under Montpelier’s Policy
Summary judgment may be rendered on the issue of insurance coverage alone, although there is a genuine issue as to liability or damages.
Montpelier relies, in relevant part, on the following exclusion added to the policy by an endorsement:
“ASSAULT AND BATTERY EXCLUSION; This policy does not apply to “bodily injury,” “personal injury” or “property damage” arising out of assault and/or battery or out of any act or omission in connection with the prevention or suppression of 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 any other person.”
In his trial testimony, Guste testified he went to Tiger Audio to talk to Lirette about why Guste’s grandson had not been paid for work performed at the store. After exchanging words, Guste turned and began walking to the exit when the following occurred: “I was walking out the door . . . and I stopped four or five feet from the door. And I told those two men that were in there, all I’m asking is why he didn’t pay my grandson. And [Lirette] came up to me before I knew it and threw me down.”
Lirette agreed an altercation occurred but claimed Guste was the aggressor. According to Lirette’s trial testimony, Guste was “fussing” about wages owed to Guste’s grandson, and Lirette repeatedly tried to get Guste to leave. According to Lirette, Guste made a movement with his hand “like he was going to punch me,” and Lirette “deflected” it with his hands. Lirette felt “threatened” and believed Guste was about to hit him.
The uncontradicted evidence establishes Guste was injured during a physical altercation with Lirette. The only conflict in the evidence concerns who was the aggressor, Lirette or Guste. However, that factual issue is not material to the application of the exclusion, which applies to bodily injury “arising out of assault and/or battery . . . caused by or at the instigation or direction of the Insured, his employees, patrons or any other person.” (Emphasis added.)
The exclusion does not depend on the identity of the person who committed the assault or battery but extends to acts committed by any person.
The exclusion in this policy is clear. The insurance does not apply to bodily injury arising out of 1) assault and battery or 2) out of any act or omission in connection with the prevention or suppression of an assault and battery. This is so regardless of who precipitated the incident, whether an employee or a customer or anyone else.
There is a difference between the versions of plaintiff and [the employee], but there is no issue of material fact. If plaintiff’s version is believed, his injuries arose out of an assault and battery perpetrated by [the employee]. If [the employee’s] version is believed, plaintiff’s injuries arose out of [the employee’s] attempt to prevent or suppress plaintiff’s assault and battery on him. In either case there is no insurance coverage.
Regardless of who was the aggressor, the evidence establishes Guste’s injuries arose out of either an assault or battery. That undisputed fact, alone, makes the subject exclusion applicable.
There is simply no coverage for the insured’s potential liability resulting from a battery, whatever the theory or theories of law the tort claimant advances in a potential action against the insured. To find otherwise defies logic.
The insurer who wishes to avoid the risk of loss by assault and/or battery can do so as long as its exclusion is clear, unambiguous and sufficiently broad to exclude any assault or battery by any person. This exclusion was sufficient and it did not matter who hit whom, who was the aggressor, and who was the victim. There is no coverage for defense or indemnity.
© 2018 – Barry Zalma
This article, and all of the blog posts on this site, digest 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 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 50 years in the insurance business. He is available at http://www.zalma.com and email@example.com.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
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