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(Article from Insurance Law Alert, May 2018)

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In United Specialty Ins. Co. v. Cole’s Place, Inc., 2018 WL 1914731 (W.D. Ky. Apr. 23, 2018), the court ruled that an assault and battery exclusion relieved a liability insurer from the duty to defend or indemnify its policyholder against personal injury lawsuits.  The underlying suits arose out of a shooting at a nightclub that injured several patrons.  The nightclub argued that the exclusion did not apply because the intentions of the shooter had not been established and Kentucky state law defines assault and battery to require intent.  The court rejected this assertion, holding that even assuming intent is a required element of assault and battery, the underlying complaints alleged facts that established intent.  In particular, the court noted that the complaints alleged that the incident was an “attack” (with no reference to the shooting being accidental) and that the shooter had been acting aggressively and violently prior to the incident.  Although the nightclub offered several possible scenarios under which the injuries could have resulted from inadvertent conduct, the court deemed such hypotheticals irrelevant to the insurer’s duty to defend.

In contrast, a Florida court found an assault and battery exclusion inapplicable in Scottsdale Ins. Co. v. Klub Kutter’s Bar & Lounge, LLC, 2018 WL 1933702 (S.D. Fla. Apr. 24, 2018).  There, the underlying complaint alleged that the plaintiff suffered severe injuries when she was trampled by a stampede of patrons following a fight and shooting at a nightclub.  The nightclub argued that an assault and battery exclusion did not apply because the underlying complaint did not allege that the plaintiff’s injuries were the result of an assault or battery.  The insurer argued that use of the phrase “arising out of” in the exclusion warranted its application to the present case, given that the underlying injuries originated from the shooting.  The court disagreed and granted the nightclub’s summary judgment motion as to the insurer’s duty to defend.  The court reasoned that because the underlying complaint made no mention of the intent of the individuals involved in the fight and stampede, plaintiff’s injuries could not be deemed to arise out of an assault or battery.  The court declined to rule on the insurer’s duty to indemnify, finding that issue premature in light of the procedural status of the underlying case.