CALL TOLL FREE: 855-833-3604
Follow Zarwin Baum on Twitter Follow Zarwin Baum on Facebook Follow Zarwin Baum on YouTube Follow Zarwin Baum on LinkedIn Print Contact Us Office Locations

First Mercury v. Rossi - Summary Judgment Granted

April 12, 2011

Patricia W. Holden, Esquire obtained summary judgment on behalf of an insurance company client on the issue of whether an assault and battery exclusion contained within a commercial general liability policy barred coverage for an underlying personal injury action. The underlying matter arose out of an incident that occurred on October 31, 2007 on a premises owned and operated as a night club by the carrier’s insured. The plaintiff in that matter, a business invitee, filed a lawsuit in the Court of Common Pleas of Philadelphia claiming that the defendants’ employees, without provocation or cause, suddenly and without warning, violently grabbed him by his right elbow, placed him in a “headlock” position, dropped him to the floor, and then picked him up by the neck and feet and dragged him downstairs and onto the sidewalk in front of the premises, causing him to suffer severe injuries.  The plaintiff’s complaint included three counts against the defendants including a count for assault, a count for battery, and a count for negligence arising out of the negligent hiring, supervision and training of the employees.
In its declaratory action, filed in the United States District Court for the Eastern District of Pennsylvania, the carrier contended in its summary judgment motion that its Assault and Battery Exclusion barred all claims arising out of the underlying incident. In particular, the carrier contended that the policy barred claims or suits to recover for bodily injury “based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way connected with ‘assault’ and/or ‘battery.’”  In addition, the exclusion contained qualifying language stating that it applied regardless of intent or the degree of culpability and without regard to whether the incident arose at the direction of the insured or out of the negligent hiring, supervision, or training of employees.  The attorney for the plaintiff in the underlying action filed opposition to the motion arguing that the negligence allegations contained within the underlying complaint and the testimony of witnesses to the event supported a finding that the exclusion was inapplicable to his claims.
The District Court agreed with the carrier and found that based on the allegations contained in the underlying complaint, there was no duty to defend or indemnify the insured for the underlying lawsuit.  The District Court stated that the underlying complaint sought recovery for bodily injury “based upon, arising out of, directly or indirectly, resulting from, in connection of, or in any way connected with ‘assault’ and battery.’”  As a result, the direct and qualifying language of the exclusion was broad enough to encompass all the allegations contained within the underlying complaint, including the allegations of negligence.  As a result, the Court granted First Mercury’s motion and declared that the carrier had no duty to defend and/or to indemnify the insured for the underlying action.

HOME CONTACT SITE MAP DISCLAIMER © 2018 Zarwin Baum DeVito Kaplan Schaer Toddy P.C.