Section 37 Insurance Coverage

• Library: Employer-Employee Law 2008

Litigation arising out of incidents of workplace violence can raise some difficult, but important, insurance coverage issues.

In particular, negligence claims against an employer arising out of an employee’s violent conduct, typically claims for negligent hiring or retention, may be excluded from the employer’s insurance coverage under intentional acts or assault and battery exclusions. It can be argued that use of the negligence theories renders these exclusions inapplicable because it makes the action one for negligence, which is covered, rather than one for the assault and battery itself, which is excluded.

Often, such arguments have failed. But the particular insurance contract language, which varies, may affect the result. Some policies may not address this problem directly, but others do. For example, see the policies in Acceptance Insurance Co. v. Winning Concepts
of Westport, Inc., 842 S.W.2d 206 (Mo. App. W.D. 1992), and Penn-America Insurance Co. v. The Bar, Inc., 201 S.W.3d 91
(Mo. App. W.D. 2006).

In Capitol Indemnity Corp. v. Haverfield, 218 F.3d 872, 875 (8^th Cir. 2000), the Eighth Circuit noted “a split in Missouri courts over whether an assault and battery exclusion . . . covers the insured’s negligence” allegedly causing the assault and...