Case Bulletin: Pennsylvania Superior Court Applies “Assault and Battery” Exclusion
On September 9, 2016, in the case of QBE Insurance Corporation (appellee) v. Jalil Walters and Rasheeda Carter, OK Café, Inc., and Donald Bowers, Sr. (appellants), No. 1797 MDA 2015 (Pa. Super. 2016), the Pennsylvania Superior Court (“the Court”) affirmed a trial court’s granting of summary judgment on behalf of an insurer under the exclusion of “assault and battery” in a commercial general liability insurance policy.
The facts before the Court were that on September 9, 2011, Jalil Walters and several friends were involved in an altercation at the Jazzland Bar. The Jazzland Bar was owned by the OK Café, Inc., and Mr. Donald Bowers, Sr., owned the OK Café, Inc. (collectively “OK Café”). Mr. Walters and his friends were confronted by Mr. Chambers when attempting to leave the bar. During this incident Mr. Chambers brandished a firearm. The situation was diffused and Mr. Chambers returned to the bar. Shortly thereafter, Mr. Walters and his friends were attempting to leave the bar and they crossed paths with Mr. Chambers and the bar’s head of security near the exit. A second dispute arose and Mr. Chambers drew and fired his firearm, striking Mr. Walters in the stomach.
Mr. Walters and his wife, Ms. Rasheeda Carter, commenced a lawsuit against the OK Café. The allegations in the Complaint included (1) negligence in allowing Mr. Chambers to enter and exit the bar with a firearm, (2) failure to properly employ, train and supervise its employees as to safety precautions and warning to patrons, (3) and loss of consortium. After this suit was filed, the OK Café requested that QBE Insurance Corporation (“QBE”) defend and indemnify it under its commercial general liability policy. QBE then commenced this declaratory judgment action against Mr. Walters, Ms. Carter and the OK Café (collectively “Appellants”). The parties filed cross-motions for summary judgment and the trial court granted summary judgment in favor of QBE and denied the Appellants’ motion for summary judgment.
Appellants appealed the trial court’s decision and asked the Pennsylvania Superior Court to consider whether the trial court erred in finding that QBE was not obligated to defend and/or indemnify OK Café under the assault and battery exclusion provision of the commercial general liability insurance policy. Appellants argued that the allegations made against OK Café do not fall within the exclusion because they are rooted in negligence and not in intentional tort. Accordingly, they argued that acts or omissions involving negligence are not within the confines of the policy’s assault and battery exclusion.
In considering the applicability of the assault and battery exclusion, the Court analyzed the policy’s language – specifically the definition of “assault and battery” and its applicability under the exclusion provision. The Court noted that the definition in the policy included both acts of assault and battery as well as acts or omissions in connection with the prevention of assaults and batteries. It also included any alleged failure to prevent an assault and battery and negligent employment, investigation, supervision, training or retention of employees. Additionally, the policy language stated that the exclusion was applicable to third parties alleging such claims in assault and battery incidents against an insured (and claims for loss of consortium connected therewith).
To support their position, the Appellants relied heavily on the Superior Court’s 2007 decision in QBE Insurance Corp. v. M&S Landis Corp., 915 A.2d 1222 (Pa. Super. 2007) (“Landis”). The Landis case involved a similar situation where staff of a nightclub attempted to forcibly restrain and evict a patron. In doing so the patron died in the process. The victim’s estate representative commenced an action against the nightclub alleging counts of negligence on part of the nightclub and its employees. The insured nightclub sought coverage from QBE under its general liability policy. QBE filed a declaratory judgment action and the parties filed cross-motions for summary judgment. The trial court granted QBE’s motion for summary judgment and the insureds appealed. On appeal, the Court reversed the trial court’s decision due to the limited nature of that policy’s definition of “assault and battery” and its applicability to the exclusion provision.
The language in the exclusion for the Landis policy limited itself to only acts of assault and battery or an act or omission in connection with prevention of an assault or battery. This section of the policy exclusion did not specifically include allegations of negligent conduct on the part of the insured. In reaching its decision, the Landis court ultimately determined that the factual allegations in the complaint were grounded in negligence, and negligence was not included in the policy’s exclusion provision.
The distinguishing factor that the Court made between the Landis case and the case before the Court was the language used in the definition of “assault and battery.” In this matter, the Court noted that the definition of “assault and battery” was much more comprehensive and expansive than it was in Landis. The Court determined that the definition expressly included negligent conduct on the part of the insured or its employees.
The Court stated that the policy’s language placed allegations of negligent conduct contributing to an assault and battery under the “arising from” umbrella enunciated in the Landis case. The Court stated that even if it were to assume that the insured breached a duty owed to Mr. Walters, the language of the assault and battery exclusion provision under the policy would still exclude coverage. Accordingly, the Court found no duty to defend or indemnify on the part of QBE and affirmed the trial court’s ruling.