No Duty to Defend Batterer

Assault or Battery Excluded Regardless of Allegations in Complaint

Intentional acts are, by definition, not insurable since they are neither contingent or unknown. Because courts prefer to force insurers to defend almost any act the insured may commit. For that reason insurers have added to their liability insurance policies detailed exclusions for injuries caused by an assault or batterer.

In Jimmy Ebarb, Jr. v. D. Scot Boswell D/B/A Scot’s Audio And Trim, Colony Insurance Company, And Joseph Dyer, Court Of Appeal Second Circuit State Of Louisiana, No. 51,445-CW (July 19, 2017) a Louisiana Court of Appeal was faced with a trial court decision requiring an insurer, Colony, to defend a batterer where the batterer was convicted in criminal court of battery.


On April 10, 2015, Ebarb was a customer at Scot’s Audio & Trim when he was allegedly struck by Joseph Dyer, an employee of Scot’s. Colony had issued a Commercial Auto Liability Policy to D. Scot Boswell d/b/a Scot’s Audio & Trim (“Boswell”).

After the incident Ebarb sued Boswell, Colony Insurance Company, and Joseph Dyer. Ebarb alleged that:

  • On or about April 10, 2015, Dyer approached Ebarb as he was on the premises of Scot’s Audio and Trim having services performed on his automobile.
  • Without warning or provocation, Dyer assaulted and battered Ebarb, causing his injuries.
  • Dyer was charged with criminal offenses for his physical attack on Ebarb.
  • Dyer subsequently pled guilty to simple battery.
  • Dyer committed a battery upon Ebarb in contravention of Dyer’s duty and obligation under the law to not harm another and as a result of his unjustified attack upon Ebarb, proximately caused the personal injuries suffered by Ebarb.

Boswell filed an answer on April 4, 2016, raising the affirmative defense that Ebarb instigated the fight by taunting Dyer, and was therefore responsible for his own injuries. Colony filed its answer and three months later, Colony filed a motion for summary judgment in which it argued that it did not provide insurance coverage to Boswell, Dyer, or any other party for the claims asserted by Ebarb as those claims were specifically excluded from coverage under the policy it had issued to Boswell.

A hearing on the motion for summary judgment was held on October 17, 2016. In denying the motion for summary judgment, the trial court noted there was no admissible evidence demonstrating that a battery actually occurred, as the police report was inadmissible hearsay. The court also found that there was a dispute as to whether Dyer was an employee of Scot’s at the time of the incident. Thus, because it determined that there were disputes as to material facts, the trial court concluded that summary judgment should be denied until further discovery was completed.


In Bilyeu v. National Union Fire Ins. Co. of Pittsburgh, PA, 50,049 (La. App. 2 Cir. 9/30/15), 184 So. 3d 69, writ denied, 2015-2277 (La. 2/19/16), 187 So. 3d 462, the Louisiana court of appeal outlined the general principles concerning the interpretation of insurance policies on a motion for summary judgment:

The interpretation of an insurance policy ordinarily involves a legal question that can be properly resolved on motion for summary judgment. An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set out in the Civil Code. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. Only if the policy cannot be construed simply, based on its language, because of an ambiguity, will the court look to extrinsic evidence to determine the parties’ intent. Just because a policy provides general coverage but then subjects it to certain exclusions does not make the policy ambiguous.

A battery is a harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such a contact. The intention need not be malicious nor need it be an intention to inflict actual damage; it is sufficient if the actor intends to inflict either a harmful or offensive contact without the other’s consent.

The Colony policy at issue contained an endorsement which excluded: “Bodily injury”, “property damage” or “personal and advertising injury” arising out of: ¶ a. “Assault”, “Battery” or “Assault and Battery” caused, directly or indirectly, by you, any “insured”, any person, any entity or by any means whatsoever; ¶ b. the failure to suppress or prevent “Assault”, “Battery” or “Assault and Battery” by you, any “insured”, any person, any entity, or by any means whatsoever; ¶ c. the failure to provide an environment safe from “Assault”, “Battery” or “Assault and Battery”; d. the failure to warn of the dangers of the environment which could contribute to “Assault”, “Battery” or “Assault and Battery”; …”

The petition alleges that a battery occurred. Boswell does not dispute that a battery was committed. The policy is clear and unambiguous that coverage is not provided for alleged liability arising from an assault and/or battery committed upon or by any person. Therefore, for Colony’s purposes on this motion for summary judgment, it would not matter whether Dyer was in the course and scope of his employment at the time that he struck Ebarb. Moreover, Ebarb’s claims that Boswell failed to properly supervise Dyer, failed to properly vet him, and failed to prevent the assault and battery are specifically addressed by the detailed exclusion.

The clear wording of the battery exclusion evidences an intent for the exclusion to apply to any claim arising out of an assault and/or battery. Thus, it is absolutely clear that any the claim is worded the injury alleged arose from a battery. Due to the clear wording of the exclusion, such a claim is obviously excluded from coverage under either the CGL policy or the liquor liability endorsement. Therefore, regardless of how Ebarb characterized his tort, the battery was the occurrence which gave rise to his claims against defendants.

Although an insurer’s duty to defend suits against its insured is broader than the scope of the duty to provide coverage it is not an unlimited duty. The duty to defend is determined by the allegations of the injured plaintiff’s petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage. This is known as the “eight corners rule,” whereby an insurer must look to the “four corners” of the plaintiff’s petition and the “four corners” of its policy to determine whether it has a duty to defend.

The parties did not dispute that a battery occurred. It makes no difference for purposes of Colony’s coverage whether or not Dyer was in the course and scope of his employment when he struck Ebarb because the exclusion applied to an assault or battery caused by any person.

The judgment denying Colony’s motion for summary judgment was reversed.


The duty to defend under a liability insurance policy is broad but it is not unlimited. In this case the person seeking coverage from Colony was convicted of battery and, since the policy clearly excluded coverage for injuries caused by battery, the trial court was wrong in denying Colony’s motion for summary judgment. The appellate court reached the only decision that was appropriate since no matter how the claim was worded the exclusion applied.


ZALMA-INS-CONSULT © 2017 – Barry Zalma

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 theLEGEND-TROPHY-2 first annual Claims Magazine/ACE Legend Award.

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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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