Penn-Star Insurance Co. v. Griffey, No. WD 70031 (Mo. App. 1/19/2010)
| Decision Date | 19 January 2010 |
| Docket Number | No. WD 70031.,WD 70031. |
| Parties | PENN-STAR INSURANCE CO., Respondent, v. JACOB GRIFFEY, Appellant. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Jackson County, The Honorable John M. Torrence, Judge.
Before Alok Ahuja, P.J., James M. Smart, Jr., and Lisa White Hardwick, JJ.
Jacob Griffey appeals a judgment in favor of Penn-Star Insurance Company declaring that Griffey's personal injury claim against BJB Liberty, L.L.C., was excluded from coverage under its commercial liability insurance policy. The judgment is reversed.
On April 7, 2004, Jacob Griffey was at a bar in Liberty, Missouri, known as The Pub House. The bar was operated by BJB Liberty, LLC. Griffey and another bar patron began arguing. Two bouncers escorted Griffey from the bar, taking him outside. Following a discussion, the bouncers allowed Griffey back in. Thereafter, Griffey and the other customer began arguing again. At that point, a bouncer approached Griffey from behind, placed his arm around Griffey's neck, and lifted him off the floor, carrying him toward the door. The chokehold cut off Griffey's air supply. Unaware that Griffey had lost consciousness, the bouncer then carried Griffey outside and placed him on the sidewalk. When the bouncer released Griffey, Griffey fell and struck his head on the sidewalk. He suffered an epidural hematoma which required surgery.
Griffey made a claim against BJB Liberty, L.L.C., for bodily injuries and medical expenses. BJB (hereafter generally referred to as "The Pub House") notified its commercial liability insurance carrier, Penn-Star Insurance Company, about the claim.
On March 3, 2005, Penn-Star sent The Pub House a letter advising that while "there may not be coverage," Penn-Star would perform an investigation under a complete reservation of rights.
In a subsequent May 25, 2005 letter, Penn-Star told The Pub House it had received "notice of a claim alleging negligence arising out of a physical altercation" in which The Pub House's bouncer, "while escorting Mr. Griffey out of the establishment ..., had him in a choke hold, and once outside, let go, and Mr. Griffey fell backwards onto the sidewalk, causing him personal injury." Citing an exclusion for injuries resulting from "an assault and battery or physical altercation," Penn-Star stated that there was no coverage for the claim under the policy.
On August 24, 2005, Griffey filed a petition for damages against The Pub House, alleging:
4. That another patron [of The Pub House] initiated a verbal disagreement with the Plaintiff, Jacob Griffey.
5. That unknown employee(s) of the Defendant, The Pub House, acting in the course and scope of their employment, grabbed the plaintiff, Jacob Griffey, from behind and lifted him off of the floor.
6. That the unknown employee(s) had his arm around Plaintiff's neck and chest and carried Plaintiff out of The Pub House.
7. That the unknown employee in holding Plaintiff around the neck cut off Plaintiff's air supply.
8. That Plaintiff, Jacob Griffey, lost consciousness and when the unknown employee placed him on the sidewalk outside of The Pub House, the Plaintiff, Jacob Griffey, fell to the sidewalk violently striking his head.
9. That the striking of his head on the sidewalk caused the Plaintiff to have an epidural hematoma which had to be surgically removed.
10. That the Defendant, The Pub House, by and through its employee acting in the course and scope of their employment were negligent in picking Plaintiff, Jacob Griffey, off the floor and holding him in such a manner that the Plaintiff was rendered unconscious.
11. Said employee was additionally negligent in failing to realize the Plaintiff was unconscious when he put Plaintiff on the sidewalk allowing Plaintiff to collapse and strike his head on the pavement.
In its answer, The Pub House denied the allegations of liability and raised various defenses, including comparative negligence. In October 2005, The Pub House sent copies of the petition and its answer to Penn-Star. It demanded a defense and agreed to accept a reservation of rights. Penn-Star declined.
In January 2006, Penn-Star filed a separate action for declaratory judgment. It sought a declaration that there was no coverage for the claim (and no duty to defend) based on exclusions for an "expected or intended injury" and for injuries from an "assault and battery or physical altercation." Penn-Star claimed Griffey had alleged that he was "battered" by employees of The Pub House. Both Griffey and The Pub House denied this assertion, referring the court to Griffey's petition, which cites negligence in picking up the plaintiff so as to render him unconscious, and in failing to realize the plaintiff was unconscious in putting him down on the sidewalk. They said that the petition (which does not allege that the bouncer committed a battery) "speaks for itself." Griffey and the Pub House denied Penn-Star's allegation that "[a]ny bodily injury ... arose from an assault or battery or physical altercation," and that "[a]ny negligence claimed ... necessarily arose from the assault and/or battery."
While the declaratory judgment action remained pending, Penn-Star sent The Pub House a letter again stating that it had "analyzed the petition" and determined that Griffey's "injuries were the result of an assault and battery and/or physical altercation." Citing the "expected and intended" and "assault and battery" exclusions, Penn-Star advised The Pub House that it would not defend or indemnify because "there is no coverage for the claims."
While the declaratory action was still pending, The Pub House and Griffey entered into an agreement to limit recovery to the amount available under The Pub House's liability insurance. The parties entered into various stipulations including the fact that the bouncer's actions were negligent and that "he was not intending or expecting to injure [Griffey]."
At a hearing on November 8, 2006, Griffey and The Pub House read the stipulations into the record. Griffey and his sister also testified. Their testimony indicated that earlier that night, Griffey had gotten into an argument with another patron. At the time of the earlier incident, the bouncers "walked" Griffey outside. As a result of his discussion with the bouncers, Griffey persuaded them to allow him back in. Griffey then, he said, again got into an argument — the argument that ultimately led to his injury. Griffey's testimony and his sister's testimony at trial did not contradict the allegations of the petition in any way. Nor did the testimony show that Griffey was removed without justification.
The court entered judgment for Griffey. It found that the bouncer was negligent (1) in picking Griffey up off the floor and holding him in such a manner that he was rendered unconscious, and (2) in failing to realize that Griffey was unconscious when placing him on the sidewalk, thereby allowing him to collapse and strike his head. The court assessed damages of $200,000 against The Pub House.
The declaratory judgment action went to trial on August 27, 2007. There was no live testimony. The only relevant evidence introduced by Penn-Star consisted of the insurance policy, its three letters to The Pub House, Griffey's petition, and excerpts from the personal injury trial transcript. Griffey presented The Pub House's letter demanding a defense, his agreement with The Pub House to limit recovery, the entire court file and transcript from the personal injury action, and the requests for admissions and responses in their entirety.
The court entered judgment in favor of Penn-Star. It found, essentially, that the bouncer's act of removing Griffey from the bar was an assault and battery. The court opined that the bouncer's actions "were done to either cause harm or cause apprehension of bodily harm and were clearly intentional acts." The court concluded that Griffey's injuries from hitting the concrete resulted from the assault and battery and were, therefore, excluded from coverage.
Griffey appeals.
As in any other court-tried case, we will affirm the judgment unless it is against the weight of the evidence, it is not supported by substantial evidence, or it erroneously declares or misapplies the law. Am. Family Mut. Ins. Co. v. Peck, 169 S.W.3d 563, 565 (Mo. App. 2005). Where resolution of the controversy involves the interpretation of an insurance policy, we give no deference to the trial court. Id. That is a question of law which we review de novo. Green v. Penn-Am. Ins. Co., 242 S.W.3d 374, 378 (Mo. App. 2007). In a case such as this, where the underlying facts are not in dispute, application of the insurance policy to those facts also is a matter of law. See Hunt v. Capitol Indem. Corp., 26 S.W.3d 341, 342 (Mo. App. 2000).
We interpret the language of an insurance policy to mean "what a reasonable layperson in the position of the insured would have thought [it] meant." Green, 242 S.W.3d at 383. A policy that is unambiguous must be enforced as written. Id. However, if the language is ambiguous, we adopt the interpretation that is most favorable to the insured. Capitol Indem. Corp. v. Callis, 963 S.W.2d 247, 249 (Mo. App. 1997). While the claimant bears the initial burden of proving coverage, the insurer has the burden of proving that an exclusionary clause bars coverage. Truck Ins. Exch. v. Prairie Framing, LLC, 162 S.W.3d 64, 80 (Mo. App. 2005). Because an insured purchases coverage for protection, the policy will be interpreted to grant coverage rather than defeat it. Id. at 86. Consequently, we construe exclusionary clauses strictly against the insurer and in favor of the insured. Id.
Griffey argues that the court erred in finding that his injury resulted from "an assault and battery or physical altercation" and, thus, was not covered. Griffey also argues that the court was required by...
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