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Assault and Battery Exclusion Enforced on Summary Judgment

July 1, 2010

Lisa Slotkin, managing shareholder of Zarwin, Baum's Jersey City office, and Philadelphia Associate, Noah Shapiro, secured the dismissal of an insurance coverage claim which demanded reimbursement of defense costs and indemnity for a verdict entered against the insured in an underlying case. Ms. Slotkin's motion for summary judgment was granted and the court held that the insurance company Zarwin Baum defended did not owe the insured defense or indemnity relative to the underlying assault and battery case.

This matter was pending in the Superior Court of New Jersey, Union County. The underlying case was based on an assault and battery that occurred at a restaurant that was insured by Zarwin Baum's client, the insurance company. The plaintiff in the underlying case filed a civil lawsuit against the restaurant and the individual who attacked him, alleging that he sustained serious permanent injuries as a result of the altercation where defendant assaulted plaintiff with the use of a knife.

The insurance policy issued to the restaurant that was in effect on the date of the occurrence contained a specific endorsement addressing assault and battery. The insurance company advised the restaurant that the insurance policy would not provide either defense or indemnity coverage to the restaurant for the claims of plaintiff, because of the assault and battery exclusion contained in both the General Liability Coverage part and the Liquor Liability Coverage part of the policy. This underlying matter proceeded to trial and the jury returned a verdict finding all parties negligent.

The restaurant then filed a breach of contract and declaratory judgment complaint demanding reimbursement of defense costs and indemnity for the verdict entered against them. Following discovery, Ms. Slotkin filed a motion for summary judgment asserting that the insurance company had no duty to defend or indemnify the restaurant. Ms. Slotkin emphasized the clear and unambiguous language of the insurance policy which excluded coverage for claims that in any way arise out of an assault and/or battery. Ms. Slotkin pointed out that all claims in the underlying action arose out of an assault and battery, thus the insurance company had no duty to defend or indemnify the restaurant. Further, the duty to defend an insured is broader than the duty to indemnify an insured. Accordingly, the insurance company did not owe the restaurant a duty to indemnify.

The Union County Court agreed and granted the motion for summary judgment, dismissing any and all claims against the insurance company, concluding that the insurance company did not owe the restaurant defense or indemnity relative to the underlying matter.


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