Assault & Battery Exclusion Applies Regardless of the Number of Causes of Action and Theories

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Throwing a Plaintiff Down a Flight of Stairs is Always an Assault and/or Battery

When an action by a bar manager sent a customer violently down a flight of stairs to his death and the manager pleaded guilty to manslaughter it is impossible to consider the actions accidental. It should matter not how many causes of action the heirs alleged whether for intentional or negligent torts. Insurance, by definition, only insures against fortuitous events that are contingent or unintended.

In NHJB, Inc., Doing Business As Molly’s Pub, And Norman Habib v. Utica First Insurance Company, 2020 NY Slip Op 05319, 242.1 CA 19-01879, Supreme Court Of The State Of New York Appellate Division, Fourth Judicial Department (October 2, 2020) the insurer appealed from a judgment that awarded plaintiffs the sum of $85,618.50 as against the insurer and ordered it to defend the plaintiff.

FACTS

A dispute over insurance coverage arose from an incident that occurred in May 2014 during which William Sager, Jr. (decedent) sustained fatal injuries when a bar manager at a nightclub shoved him, causing him to fall down an entire flight of stairs. The bar manager ultimately pleaded guilty to manslaughter in the first degree and was sentenced to 18 years in prison. The nightclub at issue was operated by plaintiff NHJB, Inc., doing business as Molly’s Pub, whose sole shareholder was plaintiff Norman Habib.

At all relevant times, plaintiffs were insured by a policy issued by defendant, which disclaimed coverage when initially notified about the incident within days of its occurrence. After a personal injury action was commenced against plaintiffs, among other parties the plaintiffs again sought coverage from defendant, which again disclaimed coverage, relying in large part on an assault and battery exclusion contained within the policy.

Plaintiffs sued the insurer alleging that defendant had breached the insurance contract and seeking a declaration that defendant is obligated to defend and indemnify plaintiffs in the underlying personal injury action. Both parties eventually moved for summary judgment.

The trial court –  Supreme Court – granted in part plaintiffs’ motion for partial summary judgment, denied defendant’s cross motion and ordered that defendant is obligated to defend plaintiffs in the underlying personal injury action “through the completion of discovery.”

ANALYSIS

With respect to the merits of appeal the Appellate Division concluded that the court erred in granting in part plaintiffs’ motion for partial summary judgment and granting plaintiffs’ motion to compel, and erred in denying those parts of defendant’s cross motion seeking summary judgment dismissing the complaint and on its third counterclaim, and it therefore modified the amended judgment accordingly. Although the Appellate Division concluded that the incident constituted an occurrence under the terms of the policy it nevertheless agreed with the insurer that coverage for the incident was precluded by the policy’s assault and battery exclusion.

Generally, an insurer is required to provide a defense unless it can demonstrate that the allegations of the complaint cast that pleading solely and entirely within the policy exclusions, and, further, that the allegations, in toto, are subject to no other interpretation.

Because all of the claims against plaintiffs in the underlying action are ” ‘based on’ ” or arise out of the bar manager’s assault, without which the plaintiff in the underlying personal injury action would have no cause of action. Since no cause of action would exist but for the assault the assault and battery exclusion is applicable and precludes coverage.

A determination on this issue need not await discovery in the personal injury action. The analysis of whether an exclusion applies depends on the facts which are pleaded, not the conclusory assertions contained in the underlying complaint. The allegations of the complaint in the underlying personal injury action cast that pleading solely and entirely within the policy exclusions, and the allegations, in toto, are subject to no other interpretation. Even if it were learned during discovery that there was a defect with respect to the stairs, the fact remains that, but for the bar manager’s assault, decedent would not have fallen down the stairs.

Since there is a distinction between the ultimate liability of the insured and the insured’s right to coverage based on the language of the insurance policy, and thus merely because the insured might be found liable under some theory of negligence does not overcome the policy’s exclusion for injury resulting from assault.

It was, therefore, adjudged and declared that defendant is not obligated to defend or indemnify plaintiffs in the underlying action, and as modified the amended judgment is affirmed without costs.

ZALMA OPINION

Killing a person by intentionally shoving him down a flight of stairs is obviously an assault and battery and clearly excluded by the terms of the policy. That a plaintiff alleged negligence to try to keep an insurer – and its deep pockets – involved does not change the fact that there was no case unless the plaintiffs could prove the decedent was killed by an assault which was admitted in a criminal case, the Appellate Division found a lack of coverage to defend or indemnify because of the exclusion.


© 2020 – Barry Zalma

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 52 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

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

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