Florida Court Holds Assault and Battery Exclusion Applicable to Negligence Claims

In its recent decision in Tower Ins. Co. of New York v. Blocker, 2013 U.S. Dist. LEXIS 98296 (M.D. Fla.  July 15, 2013), the United States District Court for the Middle District of Florida had occasion to consider the scope of an assault and battery exclusion.

Tower Insurance Company insured JB Rentals under a general liability policy with the following assault and battery exclusion barring coverage for bodily injury:

            … arising from, due to or caused by:

(1)       Assault and/or Battery committed by any insured, any employee of any insured, any patron or customer of the insured, or any other person; or

(2)       The failure to suppress or prevent any Assault and/or Battery or any act or omission in connection with any Assault and/or Battery; or

(3)       The negligent hiring, supervision or training of any employee or agent of the insured with respect to the events de-scribed in (1) and (2) above.

JB Rentals sought coverage for an underlying suit arising out of the stabbing of an individual on its premises.   The suit alleged that JB Rentals failed to maintain its premises in a safe condition and that it knew “that criminal acts or attacks were reasonably likely to be perpetrated unless defendants took steps to deter and prevent criminal acts and otherwise provide proper security.” 

Tower provided JB with a defense in the suit, but commenced a coverage litigation seeking a declaration of non-coverage based on the assault and battery exclusion.  The insured agreed that the underlying incident qualified as an assault and battery for the purpose of the exclusion.  It nevertheless argued that the exclusion was inapplicable to the theories of liability asserted by underlying plaintiff; namely, JB Rental’s negligent failure to have prevented the incident. 

Citing to numerous Florida decisions, the court observed that “Florida [courts] have consistently found the exclusion to apply even when the underlying action is couched in terms of negligence by the insured with regard to the premises.”  In particular, explained the court, the phrase “arising out of” is construed differently than the phrase “caused by” and “requires more than mere coincidence, a causal connection, between the conduct and the injury, but not does not require proximate cause.”  As such, and having concluded that the theories of negligence asserted against JB Rentals were causally connected to the alleged assault and battery, the court agreed that the exclusion negated Tower’s duty to defend or indemnify.

Maine Federal Court Holds Assault and Battery Exclusion Applicable

In its recent decision in Iasbarrone v. First Financial Ins. Co., 2013 U.S. Dist. LEXIS 86605 (D. Maine June 20, 2013), the United States District Court for the District of Maine had occasion to consider the scope of an assault and battery exclusion, particularly in the context of a liability insurer’s duty to defend.

First Financial Insurance Company (“FFIC”) insured Samaritan, Inc., a food pantry, under a general liability policy.  Underlying plaintiff, Lisa Iasbarrone, alleged that she was turned away from Samaritan, and that when she attempted to reenter Samaritan’s premises, she was grabbed by her left wrist and pulled down, causing her to sustain injuries to her wrist.  Ms. Iasbarrone later filed suit against Samaritan, and the complaint specifically alleged that an agent of Samaritan “grabbed Plaintiff by the wrist and pulled down in an effort to prevent the Plaintiff from entering the property.”  Samaritan tendered its defense to FFIC, which denied coverage on the basis of an assault and battery exclusion barring coverage for bodily injury:

(2) Arising in whole or in part out of any "assault" or "battery" committed or attempted by any person. . . . [or] (4) Arising in whole or in part out of any actual or threatened verbal or physical confrontation or altercation committed . . . by any person . . . .

Ms. Iasbarrone later settled her suit against Samaritan for $98,000 and an assignment of rights against FFIC.  She later filed a direct action against FFIC to recover the settlement amount plus legal fees she claimed FFIC owed to Samaritan for having breached its duty to defend.

On motion for summary judgment, FFIC argued that the allegation that plaintiff’s injuries were caused by physical contact demonstrated that the claim fell entirely within the exclusion.  Ms. Iasbarrone, on the other hand, argued that notwithstanding the allegations in her own complaint, facts might be established at trial demonstrating that she was injured through other causes.  For instance, she claimed that “the trial evidence could have established that [the insured’s agent] did not grab her, but injured her as she pulled on a door to the premises while [the agent] inadvertently pushed on the door.” 

The court rejected Ms. Iasbarrone’s attempt to argue that facts could demonstrate causation other than what she alleged.   The court specifically concluded that by having alleged specific facts regarding the cause of her injury, she could not then rely on the possibility that evidence introduced at trial could prove an alternate, potentially covered, cause injury.  As the court explained:

The Plaintiff attempts to introduce the possibility that there was no physical contact between herself and Lavoie by inserting a door into the narrative. But this fundamentally changes the allegations of the complaint. In the complaint, the Plaintiff claims that Lavoie's negligence was the "unreasonable amount of force" he applied to her wrist. She does not claim that Lavoie injured her by pulling a door closed. Unlike a plaintiff who does not know how her injury was caused, the conduct that injured Iasbarrone--a wrist grab--was known to her, and it was part of the short and plain statement of her claim.

As such, and because the allegations of grabbing and pulling constituted an excluded act of battery, the court agreed that FFIC had no duty to defend or indemnify.