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Court Decision| The Assault and Battery Exclusion and the Duty to Defend a Lawsuit Stemming from a Mass Shooting

The Shooting at The Hall Nightclub and Resulting Lawsuits

On July 1, 2016, shots were fired inside The Hall nightclub in Palmetto, Florida. Three individuals were shot, and others were trampled as patrons attempted to escape. Multiple lawsuits followed in which the injured patrons sued the owners of The Hall on theories of negligence.  

In separate suits, the patrons alleged that The Hall was liable for personal injuries they sustained as a result of inadequate security measures taken by The Hall and the failure to warn of a dangerous condition. In one of the lawsuits, the plaintiff alleged that he was shot by an unknown patron as he attempted to leave The Hall. In other lawsuits, patrons alleged that they were knocked down and trampled as a result of the gunshots fired in The Hall.  One patron’s complaint simply alleged that he was trampled while at The Hall.

AIX’s Action for Declaratory Relief

In AIX Specialty Insurance Company v. Sombreros, LLC, the commercial liability insurer for the defendants in the underlying negligence suits sought a declaration that it had no duty to defend or indemnify its insureds.[1]  AIX relied on two exclusions in its policy: the assault and battery exclusion and the firearm exclusion.

The assault and battery exclusion applied to bodily injury “arising in whole or in part out of” any assault or battery.  The policy did not define assault or battery, therefore, the court looked to Florida tort law to interpret those terms.  Under Florida law, the torts of battery and assault require intent to commit the act as opposed to intent to inflict harm or cause apprehension of imminent violence.

The injured patrons relied upon cases in which courts determined that the assault and battery exclusion did not apply because the underlying complaints did not allege that the shooter acted with the intent to shoot anyone or with the intent to create an apprehension of violence. For example, in Colony Ins. Co. v. Barnes, the Eleventh Circuit found that the insurer had a duty to defend its insured nightclub owner in a wrongful death action in which a decedent was killed by a “stray bullet” in the parking lot of the nightclub.[2] In that case, the assault and battery exclusion did not apply because the underlying complaint did not allege assault or battery or that the shooter intended to create a fear of imminent peril.  Accordingly, the shooter could have discharged the gun not intending to hit anyone and not intending to cause fear of imminent peril.  Similarly, in Burlington Ins. Co. v. Coa-Dal Sec. Agency, Inc., the Southern District of Florida found that the assault and battery exclusion does not apply in situations where the shooter could have discharged the gun without the intent to make anyone apprehensive or the intent to hit anyone.[3]

AIX relied upon a competing line of cases finding that similar assault and battery exclusions relieved the insurer of any duty to defend because the underlying complaints alleged criminal attacks.  In Evanston Ins. Co. v. S & Q Prop. Inv., LLC, the underlying complaint alleged that the decedent was killed in an attack by a trespassing criminal.[4]  The Middle District of Florida found that the allegations of the complaint fell squarely within the legal definition of battery because the complaint clearly alleged a criminal attack.  In Those Certain Underwriters at Lloyd's London Who Subscribe to Policy No. TCN 002547 v. Karma Korner, LLC, the Middle District of Florida found no duty to defend in a case where the underlying complaint described the shooting as criminal in nature.[5]  Similarly, in Geovera Specialty Ins. Co. v. Hutchins, the Eleventh Circuit found that there was no duty to defend because the complaint alleged that the shooter placed a gun to the decedent’s neck and pulled the trigger, which established that there was an intent to commit the act.[6]

The Assault and Battery Exclusion did not Apply, but the Firearm Exclusion Relieved AIX of the Duty to Defend

The Somberos court ultimately concluded that the assault and battery exclusion in the AIX policy did not clearly apply to the claims alleging that patrons were either shot or trampled in the aftermath of the shooting. The court noted that there were no allegations in the underlying complaint indicating whether the perpetrator intended to shoot someone or whether the gun was fired accidentally.  Because the trampling was set in motion as a result of the gunshots, the assault and battery exclusion did not relieve AIX of its duty to defend. 

Nonetheless, the court found that the policy’s firearm exclusion eliminated any potential for coverage. That exclusion stated that there was no coverage available for “any injury, death, claims, or actions occasioned directly or indirectly or as an incident to the discharge of firearms by person or persons on or about the insured premises.” The Middle District of Florida explained that this language was clear and unambiguous. There was no question that the alleged injuries were caused both directly by the gunshots and indirectly by trampling in the melee that followed the shots.   

Conclusion

In light of recent events, liability insurers should be keenly aware of the risks associated with incidents involving gun violence in public places and the extent to which their policies provide coverage for any resulting negligence claims against their insureds.  An assault and battery exclusion, in and of itself, may not relieve an insurer of its duty to defend if the underlying complaint does not allege that the shooting was intentional or criminal in nature.  However, a clearly-worded firearm exclusion could eliminate any lingering coverage questions.

[1] AIX Specialty Ins. Co. v. Sombreros, LLC, No. 8:17-CV-843-T-26TBM, 2018 WL 1635643 (M.D. Fla. Apr. 5, 2018).

[2] Colony Ins. Co. v. Barnes, 410 F. Supp. 2d 1137 (N.D. Fla. 2005), aff,d, 189 F.App’x 941 (11th Cir. 2006). 

[3] Burlington Ins. Co. v. Coa-Dal Sec. Agency, Inc., No. 07-22647-CIV, 2008 WL 11333513 (S.D. Fla. July 30, 2008).

[4] Evanston Ins. Co. v. S & Q Prop. Inv., LLC, No. 8:11-CV-2121-T-27MAP, 2012 WL 4855537 (M.D. Fla. Oct. 11, 2012).

[5] Those Certain Underwriters at Lloyd's London Who Subscribe to Policy No. TCN 002547 v. Karma Korner, LLC, No. 6:10-CV-830-ORL-28, 2011 WL 1150466 (M.D. Fla. Mar. 28, 2011).

[6] Geovera Specialty Ins. Co. v. Hutchins, 831 F. Supp. 2d 1306 (M.D. Fla. 2011), aff'd, 504 F. App'x 851 (11th Cir. 2013). 

Kimberly N. Ramey

A Partner at Butler Weihmuller Katz Craig LLP in Tampa, FL. Kimberly practices in our Third-Party Coverage department.

Jessica R. Stillwell

An Associate at Butler Weihmuller Katz Craig LLP in Tampa, FL. Jessica practices in our Third-Party Coverage department. 

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