U.S. Underwriters Ins. Co. v. Val-Blue Corp.
| Decision Date | 09 February 1995 |
| Docket Number | VAL-BLUE |
| Citation | 623 N.Y.S.2d 834,85 N.Y.2d 821,647 N.E.2d 1342 |
| Parties | , 647 N.E.2d 1342 U.S. UNDERWRITERS INSURANCE COMPANY, Appellant, v.CORP., doing business as RASCALS, et al., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
The order of the Appellate Division, 201 A.D.2d 440, 609 N.Y.S.2d 776, should be reversed, with costs, and a judgment entered declaring that appellant is not obligated to indemnify or defend respondent Val-Blue Corporation in the lawsuit brought against it by John Hanley.
Val-Blue employed Eugene DiSilvo, a retired New York City police officer, as a security guard in its nightclub. In the early morning hours of February 3, 1990, Hanley, an off-duty police officer, apprehended a suspect outside the nightclub and, with gun drawn, brought the suspect into the club in order to use the telephone. DiSilvo, in his capacity as the club's security guard, told Hanley to drop the gun and when Hanley did not do so, DiSilvo shot him twice. Hanley claims that he identified himself as a police officer prior to the shooting, but DiSilvo claims Hanley did so only after he was shot. In his suit for damages against Val-Blue and DiSilvo, Hanley alleged that DiSilvo "negligently, carelessly and recklessly" shot him. Hanley's complaint further charged respondeat superior, negligence in the hiring, supervision and training of employee DiSilvo, statutory violations and other claims.
Val-Blue forwarded the complaint to appellant, its liability insurance carrier, seeking defense and indemnification under its coverage for accidental bodily injury. Attached to the policy is an "Assault and Battery Exclusion Endorsement" which states:
"It is agreed that no coverage shall apply under this policy for any claim, demand or suit based on Assault and Battery and Assault and Battery shall not be deemed an accident, whether or not committed by or at the direction of the insured."
Appellant sought a declaratory judgment that it was not obligated to defend or indemnify Val-Blue because the suit was based on assault and battery. In denying appellant's motion for summary judgment and dismissing the action, the trial court held that...
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