Another Assault – Another Exclusion

by Nexsen Pruet, PLLC
Contact

Nexsen Pruet, PLLC

2017 is steadily becoming the year of the assault in South Carolina. Founders Insurance Company v. John Hamilton a/k/a Jim Hamilton, individually and d/b/a Aces High Club, Aces High Club and Kenneth Weatherford, 2017 WL 3415074, (August 9, 2017) offers us yet another look at a policy exclusion for an assault and/or battery.  

In Founders, an insurer once again sought a determination that there was no duty to indemnify under its liquor liability policy due to its exclusion for injuries arising from an assault and/or battery or arising from the selling or serving of alcoholic beverages, which results in an assault, and/or battery.   

Here, Weatherford filed an action in state court against these Defendants and others, alleging Aces High served an excessive amount of alcohol to one of its patrons. After leaving Aces High, the patron visited another bar where he consumed more alcohol then initiated a verbal confrontation with Weatherford. As Weatherford was allegedly trying to leave the second bar, the over-served patron followed him outside and shot him. In support of its motion for summary judgment, Founders denied it had any obligation to indemnify Aces High, arguing all of the damages sought by Weatherford resulted from the alleged assault and battery committed by the intoxicated patron.

SC courts have repeatedly found assault and battery exclusions enforceable. Here, Defendants argued that Founder’s motion for summary judgment should be denied because the underlying suit includes other causes of action that are not excluded, but rather fall within coverage, including dram shop liability. In support of their position, Defendants asserted liability is assigned to those who violate statutes prohibiting the knowing sale of beer or wine to an intoxicated person in order to hold persons who profit from providing alcohol liable for the actions of those to whom they provide it. Defendants further argued that policies like the one in question exist to provide liquor liability protection for torts committed by patrons who, because they are intoxicated, cause injury to others. Defendants contend Founders’ interpretation of the assault and battery exclusion would violate public policy because every physical injury resulting from the sale, service or furnishing of alcohol would be excluded from a policy intended to provide liquor liability protection. 

The court rejected Defendants’ argument. Faced with ample authority that claims arising from assault and battery, even if couched in terms of negligence, fall squarely within the confines of an assault and battery exclusion, the court granted Founders’ motion for summary judgment. Finding Weatherford’s injuries arose from being shot, which can only serve as an assault and battery, the court determined the assault and battery policy exclusion unambiguously applied and Founders had no duty to defend or indemnify.

The court’s ruling here is of little surprise, but may provide an interesting glimpse into what may be a growing trend of the court. In February 2017, the court denied an unopposed motion for summary judgment on behalf of an insurer seeking a determination it had no coverage for a shooting in a nightclub, as we reported in When an Assault is not an AssaultThere, the court determined because the underlying action alleged only negligence without allegations of intentional acts, it lacked sufficient basis to grant the insurer’s motion as to its duty to defend. There, the court had no facts outside of the complaint.  

In June 2017, the plaintiff in the underlying action alleged injuries resulting from a nightclub’s negligence. The court had information outside the complaint, including corroborated testimony that the plaintiff’s injuries arose from an attack by the club’s bouncer, as detailed in When an Assault Really is an AssaultThe court recognized even if the club was negligent, and that negligence was a proximate cause of the plaintiff’s injuries, the injuries nonetheless arose from a battery, triggering the applicable policy sublimit.

Generally, coverage questions are determined by the allegations of the complaint. However, in this third coverage opinion, the court may be signaling an increasing likelihood that it will analyze an insurer’s duty upon the substance of the complaint’s allegations and not the specifically identified causes of action. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Nexsen Pruet, PLLC | Attorney Advertising

Written by:

Nexsen Pruet, PLLC
Contact
more
less

Nexsen Pruet, PLLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.