Alvarado v. Doe

• Decision Date: 04 September 1992
• Docket Number: No. 91-CA-1458,91-CA-1458
• Citation: 613 So.2d 166
• Parties: Ronald J. ALVARADO v. John DOE, et al.
• Court: Court of Appeal of Louisiana — District of US

Page 166

613 So.2d 166

Ronald J. ALVARADO v. John DOE, et al.

No. 91-CA-1458.

Court of Appeal of Louisiana,

Fourth Circuit.

Sept. 4, 1992.

On Rehearing Dec. 15, 1992.

Writ Denied Feb. 19, 1993.

Kenneth R. Evans, Lobman, Carnahan and Batt, Metairie, for plaintiff/appellee.

Lylian M. Cohen, Trent & Cohen, and Raymond A. McGuire, New Orleans, for defendants/appellees, 2 Bills, Inc., Mark Teaney, Bill Colacurcio and Lillian Cohen.

C. Edgar Cloutier, III, John K. Leach, Christovich & Kearney, New Orleans, for defendant/appellant, Western World Ins. Co.

Before SCHOTT, C.J., and BYRNES and LOBRANO, JJ.

BYRNES, Judge.

Defendant, Western World Insurance Company (Western World), appeals a summary judgment finding that Western World's insurance policy provides coverage. We reverse and remand.

On the night of January 24 or the early morning of January 25, 1986 an incident occurred at the Unisex Night Club on Bourbon Street during Super Bowl weekend. On February 21, 1986 Ronald Alvarado filed an action for damages against various defendants, including William Cohen and Bill Colacurcio, III, as the owners of 2 Bills, Inc., d/b/a the Unisex Bar, and an employee, Mark Teaney, as well as the club's insurer, Western World. Plaintiff alleges that he was attacked by the doorman, Mark Teaney, without provocation. Western World filed a motion for summary judgment, claiming that its insurance policy excluded coverage based on an assault and battery exclusion clause. The other defendants filed an opposing motion for summary judgment, arguing that coverage exists because the assault and battery clause is inapplicable under the facts of the case. In January 1991 the trial court denied Western World's motion and granted the other defendants' motion for summary judgment, ruling that Western World's insurance policy provides liability coverage for the claim asserted by plaintiff, Ronald Alvarado. Western World appeals.

Western World contends that the trial court erred in: (1) finding that the exclusionary clause did not apply to the incident in question; and (2) finding a genuine issue of material fact precluding summary judgment pursuant to LSA-C.C.P. art. 966.

Western World argues that the trial court erred in relying on Breland v. Schilling, 550 So.2d 609 (La.1989), by applying the "intentional injury exclusion" analysis to its assault and battery exclusionary clause. At the hearing on the motions for summary judgment the trial court provided its reasons for judgment, stating the following:

Therefore the Court is saying that the Breland case controls herein and extends the Breland wordage to this exclusion with the depositions that are before it. One must look only to the depositions of Teaney, the alleged assault and battery man, or the plaintiff, Ron Alvarado, an alleged assault and battery man. According to the theory of the carrier, the court feels the wordage that talks about assault and battery, suppression and remission are not applicable herein with what it has before it. And what it has before it are the depositions of Teaney and the plaintiff, Alvarado.

In the liability insurance policy between Western World and the Unisex Night Club defendants, the clause excluding damages arising out of assault and battery states:

WW 3 ASSAULT AND BATTERY EXCLUSION:

It is agreed that the insurance does not apply to bodily injury or property damage arising out of assault and battery or out of an act or omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or direction of the insured, his employees, patrons, or any other person.

Western World argues that Breland, supra, is not applicable because that case dealt with an intentional tort exclusion and not an assault and battery exclusion. Western World asserts that the language of its assault and battery exclusion clause does not require an intent to cause injury or a specific degree of injury. However, an assault and battery requires the element of intent. A battery is a "harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such a contact." Caudle v. Betts, 512 So.2d 389, 391 (La.1987).

In Breland, supra, 550 So.2d at 611, the Louisiana Supreme Court found that an exclusionary clause within a homeowner's insurance policy that withheld liability for "... bodily injury or property damage which is either expected or intended from the standpoint of the Insured" did not apply to injuries caused by the homeowner which were not reasonably intended. In that case the homeowner, during an altercation at a softball game, struck the plaintiff in the face, breaking his jaw. The jury found that the defendant did not intend the serious bodily injury which occurred as a result of the defendant's act. The defendant had testified that he did not intend to break the plaintiff's jaw but that, "... he thought the plaintiff might be ready to swing first and he just tried to protect himself the best he could." Id. at 614. The injury was considered an accident because the defendant by coincidence had his mouth opened at the moment he was struck. The Supreme Court stated:

We hold, therefore, that when minor bodily injury is intended, and such results, the injury is barred from coverage. When serious bodily injury is intended, and such results, the injury is also barred from coverage. When a given injury of a severe sort is intended, and a severe sort of injury of any sorts occurs, then coverage is also barred. But when minor injury is intended, and a substantially greater or more severe injury results, whether by chance, coincidence, or by accident, or whatever, coverage for the more severe injury is not barred. Whether a given resulting bodily injury was intended "from the standpoint of the insured" within these parameters is a question of fact. Such factual determinations are the particular province of the trier of fact, in this instance the trial jury. Id.

In Ledbetter v. Concord General Corporation, 564 So.2d 732 (La.App. 2nd Cir.1990), the court considered the applicability of an assault and battery exclusionary clause in a motel's liability insurance policy to an action for damages resulting when one guest raped and kidnapped another guest. Because rape is a battery, damages caused by a rape would be excluded by the clause; however, the court found that not all of the damages resulted from the rape. Id. at 736-737. The court recognized that a motel, as an innkeeper, has a duty to provide its guest with a reasonably secure premises. If the motel failed to meet its standard of care, evidenced by the unlawful entry, the plaintiff had another cause of action for damages separate from the rape. Those damages which the trier of fact concluded were caused by the rape would be excluded from policy coverage, while those damages which resulted from the unlawful entry which were separate and apart from the rape would be covered by the policy. On appeal after remand, the Second Circuit Court of Appeal granted summary judgment to the insurer and ruled that on the basis of the evidence submitted, plaintiffs suffered no damages from wrongful entry other than the assault, battery, rape and kidnapping charges which were excluded from insurance coverage. Ledbetter v. Concord General Corp., 588 So.2d 115 (La.App. 2d Cir.1991). However, the Louisiana Supreme Court found genuine issues of material fact precluding summary judgment and reversed the appellate decision. Ledbetter v. Concord General Corp., 591 So.2d 704 (La.1992).

In West v. City of Ville Platte, 237 So.2d 730 (La.App. 3rd Cir.1970), the court considered the effect an assault exclusionary clause in the City's general liability insurance policy had upon coverage for the plaintiff's action for damages resulting from assault and battery, wrongful arrest, and failure to render medical assistance. The court held that damages which resulted from the beating were excluded by the assault provision. However, the court found that the damages which resulted from wrongful arrest and detention did not arise from the assault action. Id. at 733. The court also recognized that the damages for failure to provide medical care arose from the City's breach of its duty to properly care for its prisoners. In denying summary judgment, the court held that if the plaintiff prevailed on the merits, the damages would be segregated as to their cause for the determination of their coverage by the general liability insurance.

In this case the trier of fact has two factual conclusions concerning the issue of coverage. The trier of fact must determine whether the damages sought by Mr. Alvarado arise only from the alleged assault and battery, or whether some part of the damages arise from another cause, or causes, of action separate and apart from the assault and battery. The trier of fact must also determine what category of damage Mr. Teaney intended or reasonably expected from his act of assault and battery. If the trier determines that Mr. Teaney intended, and could have only reasonably expected, minor injury to Mr. Alvarado by his act, and yet a substantially greater injury occurred as a result of chance, coincidence, accident, or whatever, coverage for the more severe injury is not barred. Breland, supra at 614. However, if Mr. Teaney intended, or should have expected, severe or substantial damages to occur to Mr. Alvarado from the assault or battery, then the policy excludes coverage for those damages.

The depositions of Ronald Alvarado and Mark Teaney, provide conflicting testimony. Mark Teaney, the employee of the Unisex Night Club, stated that he was acting as a waiter at the time of the incident. He related that he was leading a couple to a table when he found Mr. Alvarado blocking his path due to the limited space between the stage area and the table area. He testified that he asked Mr. Alvarado to move several times and that Mr. Alvarado responded with...