United Nat. Ins. Co. v. Tunnel, Inc.
| Decision Date | 16 March 1993 |
| Docket Number | D,No. 979,979 |
| Citation | 988 F.2d 351 |
| Parties | UNITED NATIONAL INS. CO., Plaintiff-Appellee, v. The TUNNEL, INC., Defendant, v. Jeffrey BERNSTEIN, Defendant-Appellant. ocket 92-9123. |
| Court | U.S. Court of Appeals — Second Circuit |
Michael A. Calano, New York City (Calano & Calano, New York City, of counsel), for defendant-appellant.
Sheryl E. Katz, New York City (Wilson, Elser, Moskowitz, Edelman & Dicker, New York City, of counsel), for plaintiff-appellee.
Before: WALKER and McLAUGHLIN, Circuit Judges, and GRIESA, District Judge. *
Jeffrey Bernstein was injured in an altercation with a bouncer at a nightclub, known as the Tunnel. He sued in New York Supreme Court for his injuries, and that action is still pending. The Tunnel carried a liability insurance policy with United National Insurance Company ("UNI") which brought an action in the United States District Court for the Southern District of New York for a declaratory judgment disclaiming liability because the injury was the result of an assault and battery and this was expressly excluded from coverage. UNI then moved for summary judgment under Fed.R.Civ.P. 56. The district court granted the motion and Bernstein appealed.
One summer's evening in 1989 plaintiff, Jeffrey Bernstein, waited on line in the hope that he would be selected for admission to a fashionable Greenwich Village nightclub known as the Tunnel. Fortune smiled upon him when the doorman picked Bernstein from the faceless mass and ushered him inside. Lamentably, things then went downhill. As he weaved his way through the joyful revelers, Bernstein stepped on another patron's toe, and although some unpleasant words were bandied, no blows were exchanged. The club bouncer, however, saw this incident through different eyes and decided to eject Bernstein. For reasons never made clear in the record the bouncer decided to display his martial arts skills, the upshot being that Bernstein's next memory is waking up two weeks later in St. Vincent's Hospital where he had been admitted in a coma and with a fractured skull.
On September 9, 1989, Bernstein sued the Tunnel in New York Supreme Court, alleging in his first cause of action, as relevant here, that his injuries had been caused by the club's negligent hiring of the bouncer who had thrown him from the club and by "the defendant bouncers' [sic] negligence The Tunnel notified its insurer, UNI, which promptly advised that it was not liable to anyone on the policy because there was an exclusion for:
in creating the dangerous violent atmosphere and in using excessive force...." In his second cause of action, Bernstein alleged that his injuries were "solely and wholly as a result of defendant bouncers' [sic] intentionally striking the plaintiff...." Other statements in his complaint, and subsequent statements in his bill of particulars and deposition indicated that his claim was that the bouncer had intentionally beaten him. He sought $1 million for each cause of action
Claims arising out of an assault and/or battery, whether caused by or at the instigation of, or at the direction of, or omission by, the Insured, and/or his employees.
On February 15, 1990, UNI brought a declaratory judgment action in the Southern District, requesting the court to recognize that its assault and battery exclusion barred coverage for Bernstein's claim.
Bernstein, obviously recognizing the strength of UNI's position, filed an amended complaint in the state action, in which he deleted from the second cause of action his allegations that the bouncer's conduct had been an assault and battery or was, in any other way, intentional. Now he alleged "[t]hat said occurrence took place solely and wholly as the result of the defendant bouncers' [sic] negligence in causing injuries he did not intend to inflict." He also alleged that even if the bouncer had intended to strike him, he did not intend the specific injuries he caused, and therefore Bernstein's claim still arose from the bouncer's negligence.
UNI subsequently moved for summary judgment in the federal declaratory judgment action, claiming that the policy exclusion unambiguously excluded coverage for Bernstein's claim. It argued that: (1) although Bernstein's amended complaint in the state action now "sounded" in negligence, this was a transparent attempt to fashion a claim for which UNI would be liable and the raw facts of his complaint indicated that the cause of action arose from an assault and battery; and (2) even if Bernstein's complaint was an appropriate negligence claim, it should still be rejected because the exclusion covered "so-called unintentional assaults and/or batteries."
Judge Lowe accepted the latter argument, holding that: "[a]s the assault and battery exclusion unambiguously extends to intentional and negligent acts, summary judgment in UNI's favor is appropriate." She therefore held that UNI was not obligated to defend or indemnify The Tunnel, and Bernstein now appeals. We affirm, although we arrive at that result by a route somewhat different from that taken by the district court.
Analysis begins with a recognition of the mutual exclusivity of negligence and battery. State Farm Fire & Casualty Co. v. van Gorder, 235 Neb. 355, 455 N.W.2d 543, 545 (1990); see also Martin v. Yeoham, 419 S.W.2d 937, 944 (Mo.Ct.App.1967) (). In this case the district court concluded that it made no difference under the policy whether the bouncer acted negligently or intentionally, for in either event the policy did not cover the Bernstein incident. In other words, even if the bouncer struck Bernstein unintentionally, as for example, if the bouncer negligently swung a club that flew out of his hand and struck Bernstein, the UNI insurance policy would not cover the injury. We cannot agree.
The district court relied primarily on United Nat'l Ins. Co. v. Entertainment Group, Inc., 945 F.2d 210 (7th Cir.1991), where the Seventh Circuit considered the same insurance company and, inter alia, the same policy provision at issue here. A fifteen-year-old girl had been raped in the restroom of defendant's movie theater.
She sued Entertainment Group, alleging that its negligent control and supervision of the movie theater had made the attack possible. There, as here, UNI brought a declaratory judgment action, arguing that there was no coverage under the assault and battery exclusion of the insurance policy. The district court agreed and granted UNI summary judgment. Id. at 212
On appeal, the Seventh Circuit affirmed, holding that the girl's claim was not covered under the...
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