Colony Ins. Co. v. Barnes
| Citation | 410 F.Supp.2d 1137 |
| Decision Date | 08 December 2005 |
| Docket Number | No. 5:05cv135-RH/WCS.,5:05cv135-RH/WCS. |
| Parties | COLONY INSURANCE COMPANY, Plaintiff, v. George BARNES, Sr., etc., et al., Defendants. |
| Court | U.S. District Court — Northern District of Florida |
Jeffrey Alan Blaker, Conroy Simberg & Ganon PA, West Palm Beach, FL, for Plaintiff.
Benjamin Lloyd Crump, Parks & Crump LLC, Thomas Porter Crapps, Douglass Law Firm, Tallahassee FL, for Defendants.
ORDER GRANTING SUMMARY JUDGMENT IN PART
This is a dispute between a liability insurer and its insured nightclub. The issue before the court on cross-motions for summary judgment is whether the insurer has a duty to defend the insured in an underlying wrongful death action. According to the complaint in the wrongful death action, the deceased (a customer of the nightclub) was struck by a stray bullet fired recklessly by a third person in the nightclub parking lot. The complaint alleges the nightclub negligently allowed such activities to occur on the premises. The insurance policy excludes coverage for injuries resulting from assault and battery.
Because the reckless discharge of a firearm in a public parking lot does not necessarily constitute assault or battery — the shooter might or might not threaten or intend to hit anyone — the insurer must defend the wrongful death action. I enter summary judgment on this issue if favor of the insured.
Faheem S. Brown was shot and killed in the parking lot of a nightclub, the "Dreamland Inn," owned by defendant George Barnes, Sr. ("the insured"). The personal representatives of Mr. Brown's estate sued Mr. Barnes for negligence. Mr. Brown tendered defense of the lawsuit to his liability insurer (the plaintiff in the case at bar), Colony Insurance Company ("the insurer"). The insurer undertook the defense under a reservation of rights and filed this action seeking a declaration that it has a duty neither to defend the lawsuit nor to indemnify Mr. Barnes for any damages award. Each side has moved for summary judgment.
Under controlling Florida law,1 the issue of a liability insurer's duty to defend a lawsuit against its insured is governed by the terms of the insurance policy and the allegations of the complaint.2 This is sometimes denominated the "eight corners rule," a reference to the relevant inquiry's focus on the four corners of the policy and the four corners of the complaint. If the complaint alleges any claim that, if proven, might come within the insurer's indemnity obligation, the insurer must defend the entire action.3 Doubts are resolved in favor of the insured.4
The policy at issue in the case at bar covers any lawsuit seeking damages for "bodily injury," including death, arising from an "occurrence," defined in a manner that plainly includes negligence that is a legal cause of a shooting.5 The policy obligates the insurer to defend any lawsuit seeking such damages. If that were all there were to it, the insurer would clearly have an obligation to defend the insured against the wrongful death action at issue. But the policy also has an assault and battery exclusion. The critical issue is the effect of that exclusion.
The exclusion applies to lawsuits seeking damages arising out of or resulting from:
(1) Assault and Battery committed by any person;
(2) The failure to suppress or prevent assault and battery by any person;
(3) The failure to provide an environment safe from assault and battery or failure to warn of the dangers of the environment which could contribute to assault and battery;
(4) The negligent hiring, supervision, or training of any person;
(5) The use of any force to protect persons or property whether or not the "bodily injury" or "property damage" was intended from the standpoint of the insured or committed by or at the direction of the insured.
Assault and Battery Exclusion ).
The complaint in the wrongful death action alleges that Mr. Brown was a law abiding customer of the nightclub, that other customers "began firing guns in the parking lot area," and that Mr. Brown died when he was "hit in the chest by a stray bullet." Complaint ¶¶ 9-10 (document 1 ex. B at 50). The complaint alleges that the insured negligently failed to:
a. suppress or prevent patrons from recklessly shooting firearms on the premises;
b. provide an environment safe from firearm usage by patrons in and around the premises of [the nightclub];
c. hire, supervise, or train security or off-duty law enforcement to patrol the premises of [the nightclub]; and
d. warn [Mr.] Brown of a known likelihood of firearm usage on the premises of [the nightclub], an ultra-hazardous activity that has routinely and repeatedly occurred on the premises over the course of a number of years.
Id., ¶ 11. The complaint concludes that this "ultra hazardous environment" was caused by the insured's "careless, reckless, and negligent" operation of the nightclub. Id., ¶ 15.
The complaint's reference to a "stray" bullet suggests that the shooter did not threaten or intend to hit Mr. Brown. The complaint does not specify, however, whether the shooter threatened or intended to hit anyone else. The complaint's reference to firearms being fired "recklessly," and to their usage "routinely and repeatedly on the premises over the course of a number of years," perhaps suggests there was no intent to hit anyone, but the complaint does not rule out the possibility that this shooter intended to hit a person, and even more clearly the complaint does not rule out the possibility that the shooter threatened to do so. In short, the complaint alleges that a gun was fired but does not specify whether the shooter did or did not threaten or intend to hit anyone.6
The exclusion at issue refers to "assault and battery." (Emphasis added.) For purposes of this order, I assume without deciding that a claim is excluded if it alleges either assault or battery. Also, it is clear that in order to be excluded, a claim need not explicitly refer to "assault" or "battery" by name; it is sufficient if, in order to prevail on the claim as pled, the plaintiff would have to prove facts actually constituting an assault or battery, whether or not so labeled.
The issue, then, is whether, in order to prevail on the claims as pled in the wrongful death complaint, the plaintiffs necessarily would have to prove that Mr. Brown died as the result of an assault or battery.
The policy does not define "assault" or "battery." At issue is the meaning of these terms as used in the policy (that is, as used in the parties' contract), but the terms as used in the policy presumably were intended to have the same meaning as in Florida law. In any event, the meaning of these terms is well settled, in Florida and elsewhere.
The Florida Supreme Court recently gave a hornbook definition of these terms:
an assault is "the apprehension of immediate harmful or offensive contact with the plaintiff's person, caused by acts intended to result in such contacts, or the apprehension of them, directed at the plaintiff or a third person[;]" a battery is the "unpermitted, unprivileged contact[] with [the plaintiff's] person, caused by acts intended to result in such contact[]... directed at the [plaintiff's person] or a third person." William L. Prosser, Handbook of the Law of Torts, §§ 9-10 (1941).
Doe v. Evans, 814 So.2d 370, 379-80 (Fla. 2002) ().
Earlier Florida decisions are in accord. As long ago as 1936, the Florida Supreme Court said:
An assault is any intentional, unlawful offer of corporeal injury to another by force, or force unlawfully directed toward the person of another, under such circumstances as to create a well-founded fear of imminent peril, coupled with the apparent present ability to effectuate the attempt if not prevented.
Winn and Lovett Grocery Co. v. Archer, 126 Fla. 308, 314, 171 So. 214, 217 (1936) (emphasis added). Similarly, in Spivey v. Battaglia, 258 So.2d 815, 817 (Fla.1972), the court said that an unsolicited hug that caused an unintended injury was not a battery because of the absence of any intent to make unwelcome contact.
As these cases make clear, assault and battery are intentional torts; to commit an assault or battery, an actor must intend to cause apprehension or unwanted physical contact. And the same is true of assault and battery in criminal law; intent is an element of the offense. See § 784.011(1), Fla. Stat. (2003) () (emphasis added); § 784.03(1)(a), Fla. Stat. (2003) ().
Because of the intent requirement, not every harmful contact is a battery, and not everything that causes apprehension is an assault. As the Florida Fourth District Court of Appeal recently said:
An "assault" is an intentional, unlawful offer of corporal injury to another by force, or exertion of force directed toward another under such circumstances as to create a reasonable fear of imminent peril. See Lay v. Kremer, 411 So.2d 1347 (Fla. 1st DCA 1982). Thus, it must be premised upon an affirmative act — a threat to use force, or the actual exertion of force. Similarly, a battery consists of the intentional infliction of a harmful or offensive contact upon the person of another, see Chorak v. Naughton, 409 So.2d 35 (Fla. 2d DCA 1981), but [t]he defendant must have done some positive and affirmative act ... which must cause, and must be intended to cause, an unpermitted contact. Mere negligence, or even...
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