Assault & Battery Exclusion Prohibits Coverage for Defense.

Author:Zalma, Barry

Shooting in Bar Injuring Eight Excluded Battery

One summer night in 2015, gunshot blasts pulverized the sociable hum of a nightclub in Louisville, Kentucky. Somebody had brought a firearm into the bar, and the ensuing discharge of bullets struck eight people. Six of those people sued the nightclub's owner, Coles Place, Inc. ("Cole's Place"), in state court, arguing that Cole's Place had failed to protect the plaintiffs from a foreseeable harm. United Specialty Insurance Company ("USIC") sought a declaratory judgment that it owed neither defense no indemnity to Cole's Place because of an assault and battery exclusion.

In United Specialty Insurance Company v. Cole's Place, Inc., No. 18-5545, United States Court of Appeals for the Sixth Circuit (August 22, 2019) Cole's place appealed the district court's grant of summary judgment to USIC.

FACTS

Based on injuries they sustained from the shooting, six plaintiffs filed a total of four lawsuits in state court against Cole's Place, alleging (among other things) that the nightclub owner had negligently failed to protect them. The state-court complaints alleged that plaintiffs were injured when they were shot on the premises of Cole's Place that there were previous violent incidents on the property.

After the state-court plaintiffs filed their complaints, Cole's Place filed a third-party complaint against Kevon Taylor, who had entered a plea to two criminal charges of assault in the second degree arising from the shooting. The third-party complaint alleges that Taylor "was the individual who actually did the shooting."

The Insurance Policy

At the time of the shooting and all times relevant to this appeal, Cole's Place has held an insurance policy with USIC. The policy provides a list of exclusions from coverage, including the following:

EXCLUSION-ASSAULT AND BATTERY

  1. This insurance does not apply to "bodily injury", "property damage", or "personal and advertising injury" arising out of or resulting from:

(a) any actual, threatened or alleged assault or battery;

(a) any actual or alleged injury arises out of any combination of an assault or battery-related cause and a non-assault or battery-related cause. ...

USIC undertook the defense of Cole's Place in the state lawsuits, reserving its right to seek a judicial declaration that it was not obligated to defend or indemnify.

The Federal-Court Litigation

While the state lawsuits were still pending, USIC sued Cole's Place in the United States District...

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