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THE MANAGER OF PLAINTIFF BAR PUSHED A MAN DOWN A SET OF STAIRS CAUSING FATAL INJURIES; THE ASSAULT AND BATTERY EXCLUSION IN DEFENDANT’S INSURANCE POLICY APPLIED AND THE INSURER WAS NOT OBLIGATED TO DEFEND THE BAR (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the assault and battery insurance policy exclusion applied and the insurer was not obligated to defend the plaintiff in the underlying personal injury action. The manager at plaintiff bar had pushed a man down a set of stairs, causing fatal injuries. The manager pled guilty to manslaughter:

Generally, an insurer is “required to provide a defense unless it can demonstrate that the allegations of the complaint cast that pleading solely and entirely within the policy exclusions, and, further, that the allegations, in toto, are subject to no other interpretation” … . …

… [A]ll of the claims against plaintiffs in the underlying action are ” ‘based on’ ” or arise out of the bar manager’s assault, “without which [the plaintiff in the underlying personal injury action] would have no cause of action” … . In other words, “no cause of action would exist but for the assault” and, therefore, the assault and battery exclusion is applicable and precludes coverage … . …

… [A] determination on this issue need not await discovery in the personal injury action. The analysis of whether an exclusion applies “depends on the facts which are pleaded, not the conclusory assertions” contained in the underlying complaint … . “[T]he allegations of the complaint [in the underlying personal injury action] cast that pleading solely and entirely within the policy exclusions, and . . . the allegations, in toto, are subject to no other interpretation” … . Even if it were learned during discovery that there was a defect with respect to the stairs, the fact remains that, but for the bar manager’s assault, decedent would not have fallen down the stairs. NHJB, Inc. v Utica First Ins. Co., 2020 NY Slip Op 05319, Fourth Dept 10-2-20

 

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