There are oodles of coverage decisions involving the applicability of assault and battery exclusions – both in general liability and liquor liability policies. Insurers win many of these cases. That’s because assault and battery exclusions are usually written quite broadly – applying to both the assault and battery itself as well as the insured’s failures, in many ways, to prevent the assault and battery.
I don’t report on assault and battery coverage cases here too often because they are usually dog bites man stories. But Certain Underwriters at Lloyd’s London v. Butler, No. 16-975 (D.S.C. Feb. 13, 2017) is worth a note because the court concluded, at least for duty to defend purposes, that the assault and battery exclusion did not preclude coverage for claims brought by the victim of a bar shooting. This story almost always has a different ending.
Shakila Green was a guest at Round Two, a night club operated by Sarah and Willie Butler, when she was shot in both legs. Green filed suit against the Butlers, asserting a single cause of action for negligence. She alleged that the Butlers were negligent by “failing to properly secure the area by performing security checks for weapons as guests entered the business, failing to properly check the identification of guests, and failing to maintain proper control of the area.”
Lloyd’s, which issued a general liability policy to the Butlers, brought an action seeking a declaration that it had no obligation to defend or indemnify the Butlers for the Green action. The Lloyd’s policy issued to the Butlers contained an expansive assault and battery exclusion. It excluded assault and battery and every other conceivable way that could be related to assault and battery – failure to prevent assault and battery, negligent hiring, negligent training, failure to provide proper security and it need not matter who caused the assault and battery, where it took place or what anyone’s intent was. It’s an absolute, total, positive, no way, no how, we’re providing coverage for assault and battery, exclusion.
These expansive A&B exclusions almost always carry the day for insurers. But not here. The reason was simple. The court acknowledged that the exclusion provided six ways from Sunday why assault and battery was excluded. However, to trigger a defense, under the South Carolina standard, the complaint needed only to allege a “possibility” of coverage under the policy. The Green complaint, by being devoid of allegations about circumstances of the shooting, left open the possibility that Shakila’s injuries did not arise from an assault and battery.
The court explained its decision this way: “The only allegation in her complaint regarding the circumstances of the shooting do not suggest that the weapon’s discharge was intentional in any way. In its entirety, the only sentence describing the incident is as follows: ‘On or about the 11th day of August 2013, the Plaintiff, a minor at the time, was a guest at the adult business of the Defendants when she [was] shot in both of her legs, causing permanent damage.’ Nothing in this sentence suggests that the weapon was discharged during, or in relation to, a dispute or that it was discharged with some form of intent to cause bodily injury or to place another in apprehension of bodily injury. Instead, the sentence is consistent with an allegation that the weapon was discharged unintentionally or by accident.”
The moral of the story for plaintiffs’ attorneys is simple. If the duty to defend standard is that the complaint need only allege a “possibility” of coverage [which is a common standard], then the fewer the factual details alleged in the complaint the better. Of course, plaintiffs’ attorneys, when representing a person injured in a bar fight, often-times can’t resist drafting a windy complaint that reads like a scene out of Road House. By doing so, they are pleading right into an expansive assault and battery exclusion.