Baugh v. Redmond

• Decision Date: 20 June 1990
• Docket Number: No. 21600-CA,21600-CA
• Parties: Jimmie BAUGH, Appellee, v. Maurice REDMOND, et al., Defendants/Appellants. 565 So.2d 953
• Court: Court of Appeal of Louisiana — District of US

Page 953

565 So.2d 953

Jimmie BAUGH, Appellee, v. Maurice REDMOND, et al., Defendants/Appellants.

No. 21600-CA.

565 So.2d 953

Court of Appeal of Louisiana Second Circuit.

June 20, 1990.

Blackwell, Chambliss, Hobbs & Henry by Sam O. Henry, III and Kerry L. Kilpatrick, West Monroe, for defendants/appellants.

Michael A. Courteau, Monroe, for plaintiff/appellee.

Theus, Grisham, Davis by David H. Nelson, Monroe, for third-party defendant/appellee.

Before HALL, FRED W. JONES, Jr. and LINDSAY, JJ.

FRED W. JONES, Jr., Judge.

In this action for damages as the result of a battery, defendant, Maurice Redmond, appealed the judgment of the trial court in favor of plaintiff, Jimmie Baugh, and defendant's insurer, Aetna Casualty and Surety Company. Finding the trial court did not err in holding defendant liable for plaintiff's damages and in its apportionment of fault between the parties but erred in holding the insurer was not liable for the intentional tort under the policy provisions, we affirm in part and reverse in part.

Issues Presented

On appeal, defendant presents the following assignments of error:

1) The trial court erred in finding plaintiff had proven by a preponderance of the evidence that defendant intended to commit a battery;

2) The trial court erred in failing to mitigate the general damage award as plaintiff's actions precipitated and provoked the incident;

3) The trial court erred in failing to acknowledge the applicability of comparative fault in an intentional tort case; and,

4) The trial court erred in finding the insurer was not liable based upon a provision excluding liability for bodily injury which was expected or intended from the standpoint of the insured.

Factual Context

On May 20, 1987 plaintiff was umpiring an adult softball game between teams from the Ouachita Parish Sheriff's Department and Ouachita Electric Service, Inc., a Redmond corporation which sponsored the team. During the game plaintiff called a Ouachita Electric Service player out for leaving a base early on a fly ball and defendant became enraged by plaintiff's call. Throughout the remainder of the game, defendant verbally harassed plaintiff and defendant's team eventually lost the game. Following the game, plaintiff and defendant had a confrontation upon exiting the field in which heated words were exchanged and eventually resulted in defendant striking plaintiff in the face. As a result of the blow, plaintiff's eyeglasses were knocked off his face and he incurred a bloody mouth with extensive damage to his teeth.

On August 21, 1987 plaintiff instituted this action for damages naming as defendants Maurice Redmond and Ouachita Electric Service, Inc. Ouachita Electric Service, Inc. was later dismissed from the litigation. In his petition, plaintiff alleged defendant had punched him in the face without provocation, knocking him to the ground, breaking his eyeglasses and causing extensive damage to plaintiff's teeth and bones in his mouth necessitating extensive dental treatment and oral surgery.

Defendant filed a third-party demand naming as third-party defendant his insurer, Aetna Casualty and Surety Company. Defendant alleged the altercation was covered by the liability provisions of the homeowner's policy issued to him by the insurer. Further the insurer was obligated to provide legal representation on the behalf of defendant. However, despite demand, third-party defendant had failed to provide such representation. In its answer, the insurer alleged the incident was not covered by the liability provisions of the policy due to a provision which excluded coverage for any acts which were expected or intended by the insured.

Defendant filed an amending and supplemental answer in which he alleged plaintiff was guilty of contributory negligence which partially contributed to the incident and therefore his recoverable damages should be reduced in proportion to the degree or percentage of fault attributed to him. In the event the court deemed contributory negligence inapplicable, defendant alleged that any damages awarded should be mitigated due to the conduct of plaintiff in escalating the confrontation.

At the trial on the merits the testimony as to the actual battery was conflicting. Plaintiff testified he had served as an umpire for the West Monroe Adult Softball League for approximately ten years. He said defendant began to verbally abuse him after a call, requiring him to warn the team that if defendant did not quiet down he would forfeit the game. Plaintiff allowed the team to play the remaining inning during which defendant continually verbally abused him. After the game ended and he was exiting the Ouachita Electric Service dugout, plaintiff was confronted and threatened by defendant. Plaintiff stated he told defendant he would report the incident to the recreation department and defendant would not be allowed back at the ballpark. Plaintiff turned to walk toward the concession stand with the defendant walking slightly behind him and was struck once unexpectedly by defendant. Plaintiff stated he did not make any threatening gestures and he had placed his face mask underneath his arm. As the result of the blow, plaintiff said he was knocked up against a fence, his glasses were broken and he was bleeding from the mouth. He stated that several officers from the Sheriff's Department had to restrain defendant after the initial blow. Plaintiff was treated at a local hospital and was eventually required to undergo extensive dental treatment and oral surgery, including four root canals and crowns.

Gordon Wilson, a player for the Sheriff's Department team, testified he recalled a fan rattling the fence, "hollering" and cursing the umpire after a call. He did not see defendant strike plaintiff but he did see plaintiff after the blow. Plaintiff was standing, leaning forward and holding his face. There was blood on plaintiff's hands and dripping from his face.

Ray Zeigler, another umpire at the game, testified that defendant had harassed plaintiff after the adverse call. Zeigler stated plaintiff stopped the game and warned the Ouachita Electric Service team that if harassment did not cease by their spectators he would have to call the game. He stated defendant was quieter but could still be heard in the background talking about the call. Zeigler stated that upon finishing a game the umpires usually go directly to the concession stand. When he and plaintiff exited the dugout, defendant was just outside. Zeigler stated plaintiff did not push, bump or make any threatening moves toward defendant. Plaintiff began to walk away from defendant and after going one step was struck in the mouth. The force of the blow popped the lens out of his eyeglasses and after the initial blow, defendant was restrained. Zeigler stated that throughout the incident he had a clear view and indicated plaintiff had his mask underneath his arm when he was talking to defendant.

Billy Myers, a member of the Sheriff's Department team, testified he observed plaintiff being struck when he was coming out of their dugout on the other side approximately 35-40 feet away. Myers stated that plaintiff had not made any threatening moves before being struck. He immediately ran over and tried to separate the parties.

Theresa Van Carter Redmond, defendant's daughter-in-law, testified she had attended the softball game. Mrs. Redmond stated that the spectators believed there had been bad calls by the umpire and some comments were made. She testified that plaintiff warned the spectators he would call the game and then told defendant "You shut up" or he would have him thrown out of the park. Mrs. Redmond testified that after the game defendant went into the dugout and she could hear plaintiff and defendant "hollering" as they came out. The parties were talking as they were walking and plaintiff was a step or two ahead of defendant. Mrs. Redmond stated plaintiff told defendant that he could have defendant thrown out of the park and then quite suddenly turned back toward the defendant with his mask in his right hand. At that time defendant punched plaintiff with a quick sharp punch. Mrs. Redmond was approximately two feet away from the parties when the blow occurred. She stated plaintiff's glasses fell to the ground and plaintiff stepped on them. Mrs. Redmond said that the force of the blow did not knock the plaintiff down but rather caused him to stumble backwards.

Mary Jean Redmond, defendant's wife, testified that she was also a spectator at the game. After the call against defendant's team, Mrs. Redmond said everyone started "hollering" that the player was safe. She testified that plaintiff angrily told the spectators to be quiet or he would eject them or call the game. After the game had ended defendant walked to the dugout to help the team gather up its gear and she observed plaintiff going to the dugout. Mrs. Redmond heard the parties arguing and plaintiff stating he bet defendant $100 he could throw him out of the park.

Maurice Redmond, Jr., defendant's son, testified he played in the softball game. Redmond stated he heard plaintiff tell defendant he would throw him out of the ballpark as the parties walked through dugout. After exiting the dugout plaintiff then "wheeled around" with his mask in his hand and defendant struck him. As a result of the blow, plaintiff made a backward motion and stepped on his glasses.

Defendant testified that during the course of the game plaintiff came over to the fence and became angry at him. He was told plaintiff would eject him from the park. After the game ended defendant proceeded to the dugout. When plaintiff walked through the dugout, defendant stated plaintiff's shoulder hit him in the chest and defendant went into the dugout after him. Defendant said they talked as they proceeded through the dugout and plaintiff "hollered" he bet defendant $100 he would be ejected from the ballpark. Plaintiff then turned around...