Capitol Specialty Insurance Company v. Tayworksky LLC is your basic coverage action involving the applicability of an “Assault or Battery” exclusion, in a general liability policy, to a claim involving a injury sustained in a bar.  However, it comes with a pretty unique argument in an effort to avoid applicability of the exclusion. 

Melissa Tate was injured by a gun shot while at the Monkey Barrel Bar in Charleston, West Virginia.  She filed suit against the operators of the bar (Tayworski) alleging that they failed to keep the bar in a safe condition and that her injury was a result thereof.  Tayworsky held a commercial general liability policy issued by Capitol Specialty.  The insure filed an action seeking a determination that, on account of an “Assault or Battery” exclusion, it had no obligation to defend or indemnify Tayworsky for any claim asserted in Tate’s suit.

After concluding that the policy’s accident requirement had been satisfied, and there was no basis to preclude coverage on account of intentional acts, the court moved to the potential applicability of the “Assault or Battery” exclusion, which provides as follows:

This insurance does not apply to, nor shall we have a duty to defend, any claim or ‘suit’ seeking damages or expenses due to ‘bodily injury,’ . . . arising out of, resulting from, or in connection with any of the following acts or omissions regardless of their sequence or any concurring cause:

a. “Assault or Battery”, whether or not caused or committed by or at the instruction of, or at the direction of or arising out of the negligence of you, any insured, any person or legal entity, or any causes whatsoever;

b. The suppression or prevention of, or the failure to suppress or prevent ‘assault or battery’ by you, any insured, or any person or legal entity;

c. The failure by you, any insured, or any legal entity to provide an environment safe from ‘assault or battery’, including but not limited to the failure to provide adequate security, or the failure to warn of the dangers of the environment which could contribute to ‘assault or battery’ or failure to maintain the premises by you, any insured or any person or legal entity;

The policy defined “assault” as “any threatened harmful or offensive contact between two or more persons, whether or not caused or committed by or at the instruction of, or at the direction of, or arising out of the negligence of you, any insured, any legal entity, or any causes whatsoever, regardless of fault or intent”  The policy defined battery as “any actual harmful or offensive contact between two or more persons, whether or not caused or committed by or at the instructions of, or at the direction of, or arising out of the negligence of, you, any insured, any legal entity, or any causes whatsoever, regardless of fault or intent.” (emphasis added).

The insured argued that, as the harmful contact “was made between Ms. Tate and a bullet fired from a gun, no contact was made between two or more persons.”  As the court described it, the insured argues “that the exclusion requires not only harmful or offensive contact but also bodily or direct contact.”

The Court rejected the insured’s argument: “While West Virginia courts have not defined or given legal significance to the word ‘contact’ in the context of insurance policies, this Court is of the view that the exclusion applies to harmful or offensive contact—whether achieved through direct or indirect means—between two or more persons. . . . The policy defines an assault and battery in clear, simple terms. Under neither definition must contact between two persons be bodily or direct.  Rather, the policy exclusion is concerned with ‘harmful’ and ‘offensive’ contact—contact that is either ‘actual’ or ‘threatened.’  A narrow construction of the term ‘contact’ as Defendants propose would lead to unreasonable and absurd results. Indeed, an interpretation that presumes the policy is intended to provide special protection for injury resulting from a deadly weapon ‘regardless of fault or intent’ but not for injury caused by a physical altercation is illogical.  Thus, the Court will not rewrite or construe the policy contrary to its plain language and apparent object and intent.”