Assault & Battery Exclusion Prohibits Coverage for Defense

Shooting in Bar Injuring Eight Excluded Battery

One summer night in 2015, gunshot blasts pulverized the sociable hum of a nightclub in Louisville, Kentucky. Somebody had brought a firearm into the bar, and the ensuing discharge of bullets struck eight people. Six of those people sued the nightclub’s owner, Cole’s Place, Inc. (“Cole’s Place”), in state court, arguing that Cole’s Place had failed to protect the plaintiffs from a foreseeable harm. United Specialty Insurance Company (“USIC”) sought a declaratory judgment that it owed neither defense no indemnity to Cole’s Place because of an assault and battery exclusion.

In United Specialty Insurance Company v. Cole’s Place, Inc., No. 18-5545, United States Court of Appeals for the Sixth Circuit (August 22, 2019) Cole’s place appealed the district court’s grant of summary judgment to USIC.


Based on injuries they sustained from the shooting, six plaintiffs filed a total of four lawsuits in state court against Cole’s Place, alleging (among other things) that the nightclub owner had negligently failed to protect them. The state-court complaints alleged that plaintiffs were injured when they were shot on the premises of Cole’s Place that there were previous violent incidents on the property.

After the state-court plaintiffs filed their complaints, Cole’s Place filed a third-party complaint against Kevon Taylor, who had entered a plea to two criminal charges of assault in the second degree arising from the shooting. The third-party complaint alleges that Taylor “was the individual who actually did the shooting.”

The Insurance Policy

At the time of the shooting and all times relevant to this appeal, Cole’s Place has held an insurance policy with USIC. The policy provides a list of exclusions from coverage, including the following:


1. This insurance does not apply to “bodily injury”, “property damage”, or “personal and advertising injury” arising out of or resulting from:
(a) any actual, threatened or alleged assault or battery;

* * *

(a) any actual or alleged injury arises out of any combination of an assault or battery-related cause and a non-assault or battery-related cause. …

USIC undertook the defense of Cole’s Place in the state lawsuits, reserving its right to seek a judicial declaration that it was not obligated to defend or indemnify.

The Federal-Court Litigation

While the state lawsuits were still pending, USIC sued Cole’s Place in the United States District Court for the Western District of Kentucky. USIC eventually moved for summary. The district court entered summary judgment in favor of USIC on the Declaratory Judgment Act issues. In its opinion the assault-and-battery exclusion in the policy applied to the state lawsuits. Therefore, the district court declared that USIC had no obligation to indemnify or defend Cole’s Place in those lawsuits.


The question of insurance coverage does not involve the question whether Taylor committed an assault or battery. Instead, the question for the district court, and for the Sixth Circuit, is whether the complaints contain any allegation which potentially, possibly or might come within the coverage of the policy. If the language of the complaint would bring the state-court litigation within the policy coverage regardless of the merit of the action the court must decide coverage.

Under Kentucky the Sixth Circuit makes the coverage determination by reference to two documents: the complaint and the policy. Here, even if factual issues remain about the shooter’s intent, the modifying phrases in the exclusion make explicit that a legally proven assault or battery is not required. The policy excludes, among other things, “any actual, threatened or alleged assault or battery.”

We will consider in detail below whether all of the allegations in the state-court complaints necessarily depend on an assault or battery. Relevant Kentucky law is clear, and a federal court can confidently apply it without fear of creating conflicts with the Kentucky courts or intruding on their jurisdiction.

In sum, there are no factual issues remaining in the state-court litigation or complex state-law issues that are important to an informed resolution of this case. However, in this case, not only is state law clear; there are also no unresolved factual issues relevant to the coverage question pending in the state-court action. Therefore, the district court did not abuse its discretion in finding that the availability of a state-court alternative undermines the argument for jurisdiction.

The Sixth Circuit also concluded the district court did not abuse its discretion in exercising jurisdiction under the Declaratory Judgment Act. The relative weight of the underlying considerations of efficiency, fairness, and federalism will depend on facts of the case in a Declaratory Judgment Act litigation, and the essential question is always whether a district court has taken a good look at the issue and engaged in a reasoned analysis of whether issuing a declaration would be useful and fair.

As a general rule, interpretation of an insurance contract is a matter of law for the court. Interpreting the contract requires the court to apply Kentucky law in accordance with the controlling decisions of the Supreme Court of Kentucky. Terms of an insurance policy are given their plain and ordinary meaning and, when the terms are clear and unambiguous, must be enforced as drafted.

In insurance-coverage cases, the insurer has a duty to defend if there is any allegation which potentially, possibly or might come within the coverage of the policy. The Sixth Circuit concluded that the coverage determination involves two questions of Kentucky law whether all claims in the state-court complaints depend on an underlying alleged “assault or battery” and whether the state-court plaintiffs’ claims based on failure to protect constitute claims arising out of or resulting from the battery? The Sixth Circuit answered in the affirmative.

Under Kentucky law, a battery is “any unlawful touching of the person of another, either by the aggressor himself, or by any substance set in motion by him,” and “intent is an essential element.” Vitale v. Henchey, 24 S.W.3d 651, 657 (Ky. 2000). The “intent” required is not necessarily the intent to cause harm or even the intent to make physical contact. Instead, substantial certainty of contact is enough. A man who fires a bullet into a dense crowd may fervently pray that he will hit no one, but since he must believe and know that he cannot avoid doing so, he intends it. Where a reasonable man in the defendant’s position would believe that a particular result was substantially certain to follow, he will be dealt with as though he had intended it.

The Sixth Circuit could not read the allegations in the state-court complaints as consistent with anything less than battery. Nowhere do the complaints suggest that the shooting was accidental or even merely reckless; indeed, three of them use the word “attack” to describe the shooting.

USIC has demonstrated that the state-court complaints allege a battery, and Cole’s Place has failed to respond with any genuinely disputed material facts to call that demonstration into question.

Finding that a battery has been alleged, there can be no genuine doubt that Cole’s Place’s policy with USIC excludes coverage for litigation over an alleged failure to prevent that battery. Under clear Kentucky law, the assault-and-battery exclusion applies to the cost of defending that litigation and to any potential damages awards. Therefore, the district court’s entry of summary judgment for USIC was proper.


Since Taylor effectively entered a plea that affirmed he shot eight people and since all of the lawsuits alleged he “attacked” or otherwise shot and injured them intentionally, the conclusion of the District Court and the Sixth Circuit should have been, and was, obvious to all but one dissenting justice whose arguments were destroyed by the majority.

© 2019 – 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 and

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

Over the last 51 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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