A Clear and Unambiguous Exclusion Cant Beat a Great Lawyer: Bar Negligent for not Seeking Arrest of Drunk & Disorderly Customer.

AuthorZalma, Barry
PositionON MY RADAR

It is axiomatic among plaintiffs' personal injury lawyers that the more serious the injury the less the need for legal niceties. In a case of the wrongful death of a young woman at the hands of a violent, intoxicated and unlicensed driver a clear and unambiguous exclusion is insufficient to avoid liability when a trial court finds liability for the bar distinct from the service, use, or removal of an intoxicated patron.

In Mesa Underwriters Specialty Insurance Co. v. Secret's Gentleman's Club; Glmr, Inc., Dba Secret's; Sharon Snyder, Individually And As Administratrix Of The Estate Of Deceased Desiree Snyder; Terry Snyder, No. 17-3779, United States Court Of Appeals For The Sixth Circuit (October 16, 2018) refused to protect the insurer who refused to defend or indemnify the bar.

Mesa Underwriters Specialty Insurance Co. (Mesa) appealed the district court's grant of partial summary judgment in favor of Defendants Secret's Gentleman's Club and GLMR, Inc. (together Secret's), and Sharon and Terry Snyder (the Snyders), and the district court's denial of Mesa's motion for judgment on the pleadings.

FACTS

On April 5, 2014, twenty-two year old Desiree Snyder was killed when the vehicle she was a passenger in was struck head-on by a vehicle driven by Julio Vargas who, heavily intoxicated, was driving the wrong way on 1-480. Minutes before the head-on collision, Defendant Secret's, an adult entertainment bar in Cleveland, had ordered Vargas to leave its establishment.

At the time, Mesa insured Secret's under a Commercial General Liability Coverage policy that afforded liability coverage for "bodily injury" (defined to include death) caused by an "occurrence" (defined as an "accident"). As pertinent here, the policy contained a liquor liability exclusion, which excluded coverage for:

"Bodily injury" or "property damage" for which any insured may be held liable by reason of.

* causing or contributing to the intoxication of any person;

* the furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or

* any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages.

State-Court Action

Desiree's parents sued. alleging claims of common-law negligence, wrongful death, conscious disregard/willful and wanton misconduct, survivorship, loss of consortium, and violations of Ohio's Dram Shop Act by Gigi's Lounge and Secret's.

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