Gregory v. Western World Ins. Co., Inc.

• Decision Date: 13 December 1985
• Citation: 481 So.2d 878
• Parties: Bobby GREGORY v. WESTERN WORLD INSURANCE COMPANY, INC. 84-822.
• Court: Alabama Supreme Court

Page 878

481 So.2d 878

Bobby GREGORY v. WESTERN WORLD INSURANCE COMPANY, INC.

84-822.

Supreme Court of Alabama.

Dec. 13, 1985.

Gary W. Alverson and William R. Hovater, Tuscumbia, and Robert W. Bunch, Florence, for appellant.

Walter W. Bates of McDaniel, Hall, Parsons, Conerly & Lusk, Birmingham, for appellee.

BEATTY, Justice.

Appeal by defendant Bobby Gregory from a summary judgment in favor of the plaintiff, Western World Insurance Company, Inc. (Western World), in plaintiff's action for a declaratory judgment. We affirm.

On August 30, 1982, Western World issued a policy of liability insurance to William E. Danley, Jr., and Glenn E. Kirk, d/b/a Big Daddy's Lounge. The policy was amended September 1, 1982, by the following endorsement:

"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 any 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."

On March 18, 1983, Gregory filed an action against Big Daddy's Lounge and others. His amended complaint contained five counts.

In Count One, he alleged that while he was at Big Daddy's Lounge, one of the co-defendants, Jerry Raines, "committed an assault and battery on the Plaintiff."

In Count Two, plaintiff alleged that assault and also alleged that other co-defendants Sandra Dowdy and Glenn Kirk, as agents and employees of Glenn Kirk and William Danley, Jr., at the time of the assault and battery, "negligently and wantonly maintained the premises known as Big Daddy's Lounge, so that it was not reasonably safe for members of the public" and that "as a proximate consequence of said wantonness or negligence, Plaintiff was caused to suffer the injuries heretofore described."

In Count Three, plaintiff realleged the facts of his earlier counts and also charged that the co-defendants, "Sandra Dowdy and Glenn Kirk, while employed as agents and employees of Glenn Kirk and William Danley, Jr., ... did sell, give, or otherwise dispose of to the Defendant Jerry Raines, contrary to the provisions of law, liquors or beverages, that caused the intoxication of Jerry Raines. As a consequence thereof, the Plaintiff was caused to suffer the injuries heretofore described."

In Count Four, plaintiff alleged that certain fictitious parties "A through HH, as set out in the caption of the Complaint, negligently and wantonly maintained the premises known as Big Daddy's Lounge, so that it was not reasonably safe for members of the public, including the plaintiff," and that "[a]s a proximate consequence of said wantonness or negligence, Plaintiff was caused to suffer injuries heretofore described."

In Count Five, plaintiff adopted the allegations of Count Three, and added:

"Plaintiff further avers that the fictitious Defendants, A through HH, as set out in the caption of the Complaint, did sell, give or otherwise dispose of to the Defendant Jerry Raines, contrary to the provisions of law, liquors or beverages, that caused the intoxication of Jerry Raines. As a consequence thereof, the Plaintiff was caused to suffer the injuries heretofore described...."

Thereafter, Western World filed its action for a declaratory judgment, seeking a determination that its policy afforded no coverage to the insureds, or any obligation to defend the insureds in the aforementioned lawsuit. A copy of the insurance policy was attached to Western World's complaint. To this complaint, Bobby Gregory filed his answer, asserting certain defenses and praying that the trial court decree that coverage existed. Following a course of pleading, Western World moved for summary judgment based on the pleadings, the terms of the insurance policy, and an affidavit of Richard Parker, an independent insurance agent employed by the insurance agency which sold the policy to Danley and Kirk. This affidavit recited Danley's knowledge of the assault and battery exclusion. A stipulation of facts was also admitted, which stated in part:

"1. That Western World Insurance Company, Inc. (hereinafter 'insurer') issued a policy of insurance to William E. Danley, Jr., & Glenn E. Kirk dba: Big Daddy's Lounge (hereinafter 'insureds') which was in full force and effect on January 20, 1983 and which said policy of insurance including endorsements is attached hereto as Exhibit 'A.'

"2. The policy of insurance was originally sold by Richard Parker of Darby-Hicks Insurance Agency in Florence, Alabama to insureds and said policy along with endorsements were drafted and issued by insurer to insureds.

"3. The insureds operated a liquor establishment in Colbert County, Alabama licensed by the State of Alabama Alcoholic Beverage Control Board to serve on premise alcoholic beverages on January 20, 1983.

"4. Rule 20-X-6-.02 [regarding] on premise licensees, of the Rules and Regulations adopted September 27, 1982 by the Alabama Alcoholic Beverage Control Board were in full force and effect on January 20, 1983. A copy of Rule 20-X-6-.02 is attached as Exhibit 'B.'

"5. On January 20, 1983 Bobby Gregory was a business invitee on the premises of the insureds.

"6. On January 20, 1983 Jerry Raines was a business invitee on the premises of the insureds.

"7. On January 20, 1983 alcoholic beverages were served by insureds to Jerry Raines while he was acting in such a manner as to appear to be intoxicated.

"8. On January 20, 1983 Jerry Raines did strike Bobby Gregory in the face with his fist without provocation by Bobby Gregory while both Jerry Raines and Bobby Gregory were on the premises of the insureds."

Plaintiff's claim against the insured is based upon the Alabama dram shop statute, Code of 1975, § 6-5-71(a):

"(a) Every wife, child, parent or other...