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“Assault and Battery” Exclusion from Coverage Applied Even Though Plaintiff Was Not the Intended Target of the Assault

The plaintiff was struck by a bar stool in a fight at the insured bar.  Plaintiff was not involved in the fight and the assailant apparently did not intend to strike her. The Second Department determined the “assault and battery” exclusion in the bar’s policy applied and the insurer (North Sea) was not obligated to defend and indemnify the insured bar.  The fact that the plaintiff was not the intended target of the assault did not preclude the application of the exclusion:

“The duty to defend is triggered whenever the allegations of a complaint, liberally construed, suggest a reasonable possibility of coverage, or the insurer has actual knowledge of facts establishing a reasonable possibility of coverage” … . “[A]n insurance carrier can be relieved of its duty to defend if it establishes, as a matter of law, that there is no possible factual or legal basis on which it might eventually be obligated to indemnify its insured under any policy provision” … . “An insurer may also disclaim coverage on the basis of a policy exclusion by demonstrating that the allegations of the complaint cast that pleading solely and entirely within the exclusion” … . “An exclusion for assault and/or battery applies if no cause of action would exist but for’ the assault and/or battery” … .

Here, North Sea demonstrated its prima facie entitlement to judgment as a matter of law by establishing that the assault and battery exclusion is applicable to the claims asserted by the plaintiff against the pub defendants in the underlying action … . The claims asserted by the plaintiff in the underlying action arise out of the assault and, thus, fall within the exclusion under the subject policy … .

In opposition, the plaintiff failed to raise a triable issue of fact as to the exclusion’s applicability … . Contrary to the plaintiff’s contention, the fact that the bar stool made physical contact with her and not the intended target does not negate the conclusion that the act was done with the intention to commit an assault or a battery … . Parler v North Sea Ins. Co., 2015 NY Slip Op 05166, 2nd Dept 6-17-15

 

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