Handlebar Inc. v. Utica First Insurance Company
| Decision Date | 03 January 2002 |
| Citation | 290 A.D.2d 633,735 N.Y.S.2d 249 |
| Parties | HANDLEBAR, INC., Doing Business as BLUE JAY WAY, et al., Respondents,<BR>v.<BR>UTICA FIRST INSURANCE COMPANY, Appellant, et al., Defendant. |
| Court | New York Supreme Court — Appellate Division |
In this action, plaintiffs seek a declaratory judgment that defendant Utica First Insurance Company (hereinafter defendant) is obligated to defend and indemnify them in an underlying action brought by defendant Robert Myroniuk alleging injuries as a result of plaintiffs' negligence, violation of the Dram Shop Act and assault. That action was the result of an incident which occurred at the Blue Jay Way tavern in the City of Kingston, Ulster County, wherein Myroniuk alleged that he sustained personal injuries when plaintiff Daniel Greaves, an employee of plaintiff Handlebar, Inc., struck Myroniuk with a baseball bat. In a criminal proceeding in Kingston City Court, Greaves described having an argument with Myroniuk during which Myroniuk picked up a steel bar stool. Greaves testified that he believed Myroniuk's intent was to strike him with the bar stool, but that he was prevented from doing so by another patron who seized hold of it. It was then that Greaves grabbed the baseball bat, ran from behind the bar and struck a hard blow to Myroniuk's leg.
Defendant disclaimed any responsibility to defend or indemnify plaintiffs based on two provisions found in the insurance policy or endorsements or attachments. The first of these endorsements (hereinafter referred to as the assault exclusion) provides as follows: "Notwithstanding anything contained herein to the contrary, it is understood and agreed that this policy excludes any and all claims arising out of any assault, battery, fight, altercation, misconduct or any other similar incident or act of violence, whether caused by or at the instigation of, or at the direction of the insured, his employees, customers, patrons, guests or any cause whatsoever, including but not limited to claims of negligence or improper hiring practices, negligent[,] improper or non-existent supervision of employees, patrons or guests and negligence in failing to protect customers, patrons or guests." The second provision (hereinafter the Dram Shop exclusion) excludes coverage for claims arising out of bodily injury, resulting from the improper sale of alcohol. This provision specifically states that it excludes claims for bodily injury for which an insured may be liable:
Defendant moved for summary judgment, contending that the assault exclusion relieved it of all liability to defend and indemnify plaintiffs for the negligence and assault causes of action and that the Dram Shop exclusion likewise entitled it to summary judgment with respect to the remaining cause of action. In addition to opposing defendant's motion for summary judgment, plaintiffs cross-moved for partial summary judgment, contending that the following policy language creates an ambiguity in the...
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