Section 2.34 Assault and Battery Insurance Coverage Exclusions

• Library: Tort Law 2016

D. (§2.34) Assault and Battery Insurance Coverage Exclusions

Counsel should be aware that many insurance policies exclude coverage for bodily injury or death arising out of an assault or battery. In addition, these exclusions often exclude coverage for negligence based on an underlying assault or battery, such as negligent hiring, supervision, and retention.

Assault and battery exclusions are among the most frequently litigated subjects in liability insurance law. 21 ERIC M. HOLMES ET AL., HOLMES’ APPLEMAN ON INSURANCE 2D § 133.1, p. 198 (2002). The exclusions’ validity, construction, and breadth are often at issue. Another issue often litigated is whether negligence claims arising out of an assault and battery fall within the scope of the exclusion. See Kimberly J. Winbush, Annotation, Validity, Construction, and Effect of Assault and Battery Exclusion in Liability Insurance Policy at Issue, 44 A.L.R. 5TH 91 (1996).

Missouri courts generally find assault and battery exclusion clauses to be unambiguous, in which case the court must interpret the language as written and not in favor of the insured. Green v. Penn-Am. Ins. Co., 242 S.W.3d 374, 383–84 (Mo. App. W.D. 2007); Trainwreck W. Inc. v. Burlington Ins. Co., 235 S.W.3d 33, 40–41 (Mo. App. E.D. 2007).

Whether an insurer has a duty to defend an insured is based on the allegations set forth in a petition by the party instigating the suit against the insured. Trainwreck W., 235 S.W.3d at 42. When a petition sets forth the elements for assault and battery and negligence and the insurance policy contains an...