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Wrongful death claims at bar fails on assault exclusion (US)

07 August 2018Sandra Sithole, Norton Rose Fulbright
Sandra Sithole from Norton Rose Fulbright.

Sandra Sithole from Norton Rose Fulbright.

Two US district courts in two separate cases held in July 2018 that the insurers of public bars do not have a duty to defend or indemnify the insured owners of the bars for violent deaths of patrons because of the policy exclusion for bodily injury arising from an assault, battery or physical altercation.

The first case involved the death of a patron at a Philadelphia bar who was stabbed 11 times by a regular customer of the bar for stealing alcohol. The parents of the deceased brought a wrongful death claim against the bar alleging that the death was caused by the negligence of the bar’s employees who had directed the regular customers to confront the deceased who had stolen a bottle, despite being aware of the stabber’s violent history and having served him alcohol when he was both visibly intoxicated and a minor. It was foreseeable that he would confront the deceased in a manner that would result in severe injuries or death.

Although the claim clearly fell within the policy’s definition of ‘bodily injury’, the insurer argued that an exclusion for injuries arising out of an assault, battery or physical altercation applied. The exclusion states:

“regardless of culpability or intent of any person, this insurance does not apply to ‘bodily injury’, ‘property damage’, ‘personal and advertising injury’ or medical payments arising out of any (1) actual or alleged assault or battery; (2) physical altercation; or (3) [a]ny act or omission in connection with the prevention or suppression of such acts, including the alleged failure to provide adequate security.”

The exclusion applied regardless of whether such damages are caused by any ‘insured, employee, patron, or any other person’.

The insured tried to argue that the policy was ambiguous because of the insurer’s failure to include a definition of ‘assault’, ‘battery’, ‘physical altercation’ or ‘arising out of’ the policy. But the court said that by any objective measure, the injuries leading to the deceased’s death, at least in part, arose out of an assault, battery, or physical altercation. It strained credulity to assert otherwise, when the claim expressly stated that the deceased was confronted by a visibly intoxicated patron who stabbed him multiple times resulting in his death.

The second case related to an unfortunate incident where a man was run over by a woman in her car while fleeing the scene of a brawl after the man tried to break up a fight involving the woman’s boyfriend. The man died a few days later from his injuries. The estate of the deceased claimed that two insureds bars, The Bar and The Sandy Monkey negligently served excessive quantities of alcohol to the woman.

The policy contained an exclusion for claims arising out of assault and battery similar to that discussed in the case above.

The estate of the deceased argued that the exclusion did not apply because the woman was not indicted for intentional assault or battery. The court disagreed with this interpretation and said that the events that led to the deceased being rendered unconscious could not be separated from the actions of the intoxicated woman in knocking him down with her car when fleeing the scene. There was an immediate and direct relationship between the woman’s conduct and the assault and battery by her boyfriend and the ultimate injury that resulted in his death.

The cases are Nautilus Insurance Co.vs Shawn Owens Inc. and Scottsdale Insurance Co. v GS Thadius LLC.

First published by Financial Institutions Legal Snapshot.

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