Hunt v. Capitol Indemnity Corporation

• Decision Date: 11 July 2000
• Parties: (Mo.App. E.D. 2000) . Valerie Hunt and Michael Hunt, Sr., Plaintiffs/Respondents, v. Capitol Indemnity Corporation, Defendant/Appellant. Case Number: ED76658 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

26 S.W.3d 341 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Valerie Hunt and Michael Hunt, Sr., Plaintiffs/Respondents, v. Capitol Indemnity Corporation, Defendant/Appellant.

Case Number: ED76658

Missouri Court of Appeals Eastern District

Handdown Date: 07/11/2000

Appeal From: Circuit Court of the City of St. Louis, Hon. Henry E. Autrey

Counsel for Appellant: Michael E. Bub and Russell F. Watters

Counsel for Respondent: Robert H. Pedroli, Jr., and Eric A. Ruttencutter

Opinion Summary: Defendant Capitol Indemnity Corporation appeals from summary judgment entered in favor of Valerie Hunt and Michael Hunt, Sr.

REVERSED AND REMANDED WITH DIRECTIONS.

Division Four holds: The insurance policy at issue unambiguously excluded coverage for "bodily injury" arising from assault, battery or assault and battery caused by the insured's negligence. The insured's negligence was not a separate and non-excluded cause apart from the assault and battery.

Opinion Author: William H. Crandall, Jr., Presiding Judge

Opinion Vote: REVERSED AND REMANDED WITH DIRECTIONS. Hoff, J., and Pudlowski, Sr.J., concur.

Opinion:

Defendant, Capitol Indemnity Corporation (Capitol Indemnity), appeals from summary judgment entered in favor of Valerie Hunt and Michael Hunt, Sr. We reverse and remand with directions.

On July 7, 1996, Michael Hunt, Jr. was stabbed and killed "outside of" Justin's Lounge in St. Louis, Mo. Michael Hunt, Jr.'s parents, Valerie Hunt and Michael Hunt, Sr. (plaintiffs herein), brought an action against Gerald Haverfield (Haverfield), an owner and operator of Justin's Lounge.¹ Plaintiffs alleged that that their son was intentionally stabbed and killed by criminal third parties and Haverfield's negligence was the direct and proximate cause of their son's death. Plaintiffs and Haverfield waived a jury trial and liability was not contested. The court found that Haverfield negligently failed to protect Michael Hunt, Jr. "from his assailants, who were known dangerous, intoxicated patrons on Haverfield's premises; and that Haverfield negligently failed to remove these patrons from said premises after prior similar violent acts by these patrons against other persons on said premises." The court further found that Haverfield's negligent acts were the direct cause of Michael Hunt, Jr.'s death. The court entered judgment in favor of plaintiffs for $150,000.

At the time of Michael Hunt, Jr.'s death, Haverfield had liability insurance with Capitol Indemnity. The Capitol Indemnity policy contained an endorsement titled "EXCLUSION - ASSAULT OR BATTERY." Plaintiffs filed a petition to collect insurance naming Capitol Indemnity as the defendant. Capitol Indemnity filed an answer and counterclaim for declaratory judgment. Plaintiffs and Capitol Indemnity filed summary judgment motions.² In the motions, the parties presented arguments as to whether the assault and battery exclusion applied. The trial court found that the exclusion did not "expressly exclude coverage for damages arising from an assault and battery caused by a negligent act or omission that does not involve violence or force on the part of the insured. The insured did not engage in the assault and battery, but rather negligently created the circumstances under which the violent act took place." The court also found that the exclusion "did not specifically exclude concurrent causes of assault and battery." The court concluded that the exclusion did not exclude plaintiffs' claim against Haverfield. Accordingly, the court granted plaintiffs' summary judgment motion and denied Capitol Indemnity's summary judgment motion. The court entered judgment in favor of plaintiffs for $100,000, which the court found to be the amount of coverage under the policy. Capitol Indemnity appeals, raising two points.

This court's review of the trial court's grant of summary judgment is de novo. Southeast Bakery Feeds, Inc. v. Ranger Ins. Co., 974 S.W.2d 635, 638 (Mo. App. E.D. 1998). Where the underlying facts are not in question, a dispute arising from the interpretation and application of an insurance contract is a matter of law for the court. Id.

If the language of an insurance policy is unequivocal, it should be given its plain meaning, even if it restricts coverage. Killian v. Tharp, 919 S.W.2d 19, 21 (Mo. App. E.D. 1996). Exclusionary clauses that are ambiguous are read in favor of the insured. Id. An insurance policy is ambiguous if the provisions are duplicitous or difficult to understand. Id. Courts are not permitted to create ambiguities to distort the language of an unambiguous policy. Shahan v. Shahan, 988 S.W.2d 529, 535 (Mo. banc 1999).

The assault and battery exclusion at issue provides in part as follows:

EXCLUSION - ASSAULT OR BATTERY

This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART

PRODUCTS/COMPLETED OPERATIONS COVERAGE PART

COMMERCIAL LIQUOR LIABILITY COVERAGE PART

. . .

This insurance does not apply to bodily injury, property damage or personal injury arising out of assault, battery, or assault and battery. This exclusion applies to all coverages under this coverage part.

Definitions:

1. Assault -- A willful attempt or offer with force or violence to harm or hurt a person without the actual doing of the harm or hurt.

2. Battery -- Any battering or beating inflicted on a person without his or her consent.

3. Assault and Battery -- For purposes of this insurance, this term includes assault and battery, and specifically includes the ejection or expulsion with force or violence, or attempt thereof, of any person from the premises by the insured and his/her/its employees or agents.

Capitol Indemnity argues in its first point that the trial court erred in granting plaintiffs' motion for summary judgment because the policy unambiguously precludes coverage for negligence claims premised upon assault and battery. We agree.

The Western District considered an assault and battery exclusion in Capitol Indemnity Corp. v. Callis, 963 S.W.2d 247 (Mo. App. W.D. 1997). In that case, the plaintiff in the underlying lawsuit brought an action against Steve Callis, d/b/a The Silver Bullet Lounge, as a result of an assault and battery committed by Callis's employees. Callis, 963 S.W.2d at 248. At the time of the assault and battery, Callis had business insurance with Capitol Indemnity. Id. Callis's policy had an assault and battery exclusion that stated the insurance did not apply to bodily injury arising out of assault, battery or assault and battery. Id. The court stated that the plaintiff's allegations revealed that he was claiming that "his injuries arose out of the assault and battery, which, in turn, was caused by Callis'[s] negligence." Id. at 250. The court further stated that the "exclusionary language specifically states that it does not apply to bodily injury arising out of an assault and or battery. This would include negligence actions alleging a failure to protect a patron, which arise out of this intentional act." Id. The court concluded that the assault and battery exclusion excluded coverage. Id. at 251. In so holding, the court relied on Acceptance Ins. Co. v. Winning Concepts of Westport, Inc., 842 S.W.2d 206 (Mo. App. W.D. 1992), and cases from several other jurisdictions considering assault and battery exclusions. Id. at 249-51; see also Capitol Indemnity Corp. v. Blazer, 51 F.Supp.2d 1080, 1086-88 (D. Nev. 1999)(citing Callis, 963 S.W.2d at 250)(further citations omitted); Eady v. Capitol Indemnity Corp., 502 S.E.2d 514, 515-16 (Ga. Ct. App. 1998).³

We find the reasoning in Callis and the cases cited therein persuasive for the present case. As in Callis, the policy here specifically provides that the insurance does not apply to bodily injury arising out of assault, battery or assault and battery. (emphasis added). Under the policy, "'Bodily injury' means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time." The trial court found that Haverfield negligently failed to protect Michael Hunt, Jr. from his assailants and failed to remove them from the premises. The policy here unambiguously excludes coverage for "bodily injury" arising from assault, battery or assault and battery caused by the insured's, in this case Haverfield's, negligence.

Plaintiffs argue that the exclusion is ambiguous because it does not unequivocally exclude bodily injury to a patron by another patron resulting from Haverfield's negligence. According to plaintiffs, the exclusion only applies for an assault and battery committed by Haverfield, his agents or employees. Plaintiffs rely on this court's holding in Braxton v. United States Fire Ins. Co., 651 S.W.2d 616 (Mo. App. 1983).

In that case, an intoxicated gas station attendant shot Braxton and he obtained a judgment against the station owner for negligent supervision. Braxton, 651 S.W.2d at 617. The owner's liability insurance carrier denied coverage based on a policy exclusion that provided that the insurance would not apply "'to bodily injury and property damage arising out of the ownership or use of any firearm.'" Id. The "'Exclusions'" portion of the policy stated that the insurance did not apply to bodily injury or property damage arising out of certain enumerated acts "'by,'" "'for'" or "'on behalf of '" the named insured. Id. at 618. The firearm exclusion at issue was added to the policy by typewritten endorsement and did not specify whether the ownership or use of a firearm had to be by, for or on behalf of the named insured. Id. This court held that the exclusion did not "unequivocally exclude acts arising out of the ownership or use of a firearm by any person under any circumstances" and that a "reasonable person reading the exclusion in context could fairly conclude that the exclusion applied only if the insured himself...