No Coverage for Bar Room Attack
I have, until I was blue in the face, reminded my readers that liability insurance only applies to fortuitous events – there must be an accident, an occurrence, an injury without intent to cause the injury – for insurance to apply. Regardless, injured people and their lawyers attempt to gain insurance proceeds by artfully pleading a complaint in an attempt to make an intentional act into an accident.
In State Farm Fire and Casualty Company v. Massi, 2016 WL 3014890, United States District Court, E.D. Pennsylvania, Civil Action No. 16-00169 (05/25/2016) the USDC for the Eastern District of Pennsylvania was asked by State Farm Fire and Casualty Company (“State Farm”) to declare that it has no duty to defend or indemnify Mark Massi (“Massi”) in an underlying lawsuit stemming from Massi’s alleged involvement in a bar fight.
Ronald Mannon (“Mannon”) sued Massi alleging that Massi violently assaulted and injured Mannon at “R.P. McMurphy’s” in Holmes, Pennsylvania. Mannon’s complaint alleges that Massi was “visibly intoxicated and acting in a violent, uncivilized, unruly and inappropriate manner.” Before assaulting Mannon, Massi was purportedly involved in multiple verbal and physical confrontations with other bar patrons. At approximately 1:33 a.m., security asked Massi to deescalate “an altercation with other patrons inside [the bar].” Massi punched Mannon in the face and knocked him unconscious. Mannon also alleges that adding to the injury Massi struck him “in the face with a billiard ball.”
Mannon’s complaint includes causes of action against Massi for negligence (Count I) and assault and battery (Count II). Mannon’s negligence claim alleges that his injuries “were caused solely by the intentional act of [Massi] combined with the[ ] carelessness and negligence of [Massi]….” Within the same count, Mannon includes a number of causal allegations with the prefatory phrase: “As a result of the negligent, careless, reckless, malicious and/or violent actions of [Massi]….”
The assault and battery claims allege that Massi “unlawfully, willfully, maliciously and with force and arms assaulted [Mannon] and…unlawfully, willfully, maliciously, wrongfully and offensively stricken [sic] [Mannon] in the face with a billiard ball….” Also included are claims against the bar which contend, in relevant part, that it provided alcohol to Massi when he was “visibly intoxicated” and “present[ing] an[ ] unreasonable danger of hazard to [himself], members of the public and other patrons….”
When the alleged incident occurred, Massi was insured under a homeowner’s policy issued by State Farm. The policy defined “Occurrence as, among other things, “an accident….”
State Farm is currently defending Massi in the underlying suit pursuant to a reservation of rights.
It is axiomatic that the duty to defend is broader than the duty to indemnify. Accordingly, “there is no duty to indemnify if there is no duty to defend.” In determining whether State Farm owes a duty to defend Massi in the underlying lawsuit, the Court must examine the allegations in Mannon’s complaint and the language of the State Farm policy.
If the complaint comprehends an injury which may be within the scope of the policy, the company must defend the insured until the insurer can confine the claim to a recovery that the policy does not cover. It is the substance, not the form, of the allegations that is the focus of the coverage inquiry.
The Pennsylvania Supreme Court has defined “accident” within an insurance policy as an unexpected and undesirable event occurring unintentionally, and that the key term in the definition of the ‘accident’ is ‘unexpected’ which implies a degree of fortuity. Qualifying something as an accident, therefore, depends on both the degree of foreseeability and the state of mind of the actor in intending the result. Conduct is not “accidental” if the resulting injury was the natural and expected result of the insured’s actions.
Neither party disputes that Mannon’s injuries were the foreseeable consequence of Massi’s actions. If the allegations establish that Massi lacked the ability to formulate intent, if he was incompetent as a result of alcoholic intoxication, the resulting act cannot be intentional. The mere fact that Massi was intoxicated, however, does not mean his actions should be automatically classified as accidental. Massi’s level of intoxication would have to be so severe that a court could find that [he] did not intend the natural and probable consequences of his actions. Of course, since he intentionally became intoxicated, the natural and probable consequence of the intoxication is that he would cause injury just as the intentional act of driving while intoxicated will naturally and probably cause injury to third parties.
In this case the district court concluded that Massi’s actions cannot reasonably be classified as anything other than intentional conduct. Despite Mannon’s “artful pleading,” the factual allegations portray an intentional act for which there is no coverage under the policy. Massi punched Mannon in the face and knocked him unconscious. Massi “maliciously, wrongfully and offensively” struck Mannon “in the face with a billiard ball.” Nothing alleged indicates that Massi did not intend the “natural and expected” consequences of his actions.
The facts in the underlying complaint portray an allegedly intoxicated person whose violent behavior culminated in Mannon being struck in the face and/or struck with a billiard ball, rendering him unconscious. Indeed, Mannon’s negligence claim states that his injuries “were caused solely by the intentional act of [Massi] combined with” his carelessness and negligence; even the negligence claim alleges intentional conduct. The complaint is not just “thin on detailed facts,” as Massi alleged, supporting negligence or a lack of intent, it lacks such facts entirely.
State Farm also contends that it has no duty to defend against Mannon’s claim for punitive damages. Pennsylvania public policy provides that punitive damages are not covered under insurance policies. Massi concedes that the policy cannot cover a punitive damage claim.
State Farm owes no duty to defend Massi in the underlying lawsuit. Because there is no duty to defend, there is no duty to indemnify.
When a person becomes intoxicated it is because of the intentional act of consuming a sufficient volume of alcoholic beverages to cause a lack of control, violence and other anti-social conduct brought on by the intoxication. Punching someone in the face and hitting him with a billiard ball until he is unconscious is an intentional act and not fortuitous. The plaintiff is not without a remedy, he can take whatever assets Massi has to pay for his injuries and his lawyer’s attempt at artful pleading will not obtain Massi insurance coverage.
Barry Zalma, Esq., CFE, 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. He 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 founded Zalma Insurance Consultants in 2001 and serves as its only consultant.
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