Tarrant County Ice Sports, Inc. v. Equitable General Life Ins. Co. of Oklahoma, 2-83-111-CV
| Decision Date | 23 November 1983 |
| Docket Number | No. 2-83-111-CV,2-83-111-CV |
| Citation | 662 S.W.2d 129 |
| Parties | TARRANT COUNTY ICE SPORTS, INC., Michael Counts, Richard Noonan and Chris Castro, Appellants, v. EQUITABLE GENERAL LIFE INSURANCE COMPANY OF OKLAHOMA, Appellee. |
| Court | Texas Court of Appeals |
Art Brender, Law Offices of Art Brender, Fort Worth, for appellants.
Donald K. King, Cantey, Hanger, Gooch, Munn & Collins, Fort Worth, for appellee.
Before JORDAN, HUGHES and JOE SPURLOCK, II, JJ.
This is a suit for declaratory judgment brought by appellee, sometimes referred to as the Insurance Co., or as Equitable General, against appellants Tarrant County Ice Sports, Inc., Michael Counts, Richard Noonan, and Chris Castro, to determine its contractual obligation under a general liability insurance policy issued by it to appellant Tarrant County Ice Sports, Inc. Appellants will be referred to herein as Ice Sports, or Counts, Noonan, and Castro.
The declaratory judgment suit brought by the Insurance Co. involved the construction of an endorsement to the policy which the insurance company contended excluded coverage of the occurrence or events involved which led to this suit. The construction of that endorsement is the only issue before this court.
The trial court agreed with appellee insurance company, holding that the endorsement mentioned above was applicable to the facts here involved and that recovery by any and all of the appellants was precluded. A summary judgment in favor of the insurance company was granted.
We agree with the trial court and affirm.
On the evening of December 20, 1980, Counts, Noonan, and Castro, accompanied by three female companions, attended a hockey game sponsored by Tarrant County Ice Sports, Inc. at Will Rogers Coliseum in Fort Worth, Texas. At this particular game, beer was sold at twenty-five cents (25cents) per cup, as a promotional attraction. After the game, Counts, Noonan, and Castro, along with their female companions, were insulted, assaulted and attacked by one Kenneth Walker and his companions. During the course of this unprovoked attack and assault, Counts, Noonan, and Castro were each stabbed, wounded, and beaten.
As a result of this occurrence, Counts, Noonan, and Castro sued Ice Sports, the owner and operator of the Fort Worth hockey team playing that evening, alleging that each of them suffered severe injuries as a result of many and varied acts of negligence on the part of the defendant.
Ice Sports failed to answer this suit and after a full hearing, plaintiffs Counts, Noonan, and Castro, each were awarded monetary damages against Ice Sports, which shortly thereafter took bankruptcy. Ice Sports' rights, benefits, and cause of action under appellee's general liability insurance policy, were then assigned to Counts, Noonan and Castro.
Equitable General Life Insurance Co., as plaintiff, filed this declaratory judgment suit, against Ice Sports, Counts, Noonan and Castro, to determine whether or not it was compelled, under its policy, to defend Ice Sports and to pay any judgment resulting from the suit against Ice Sports by Counts, Noonan and Castro.
The insuring agreement in Equitable General's liability policy, in pertinent part, obligated Equitable General "[t]o pay on behalf of the assured [Ice Sports] all sums which the assured shall become obligated to pay by reason of the liability imposed upon him by law for damages, ... because of bodily injury, ... sustained by any person or persons caused by accident..."
"Accident" was defined in the policy "Conditions" to include "assault and battery not committed by or at the direction of the assured." Hence, if this were the only language in the policy concerning assault and battery, the insurance company would be obligated to defend the original suit for damages since the assault and battery alleged therein was committed by a party other than the insured. However, the policy contained an endorsement which read as follows:
"Notwithstanding anything contained herein to the contrary, it is understood and agreed in consideration of the premium charged, bodily injuries or death alleged to have been caused by ASSAULT AND/OR BATTERY shall not be deemed an accident or occurrence under this Policy and no coverage shall apply hereunder."
Appellants Counts, Noonan, and Castro claim that because their suit against Ice Sports...
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