Michigan Court of Appeals Finds Insurer Owes No Duty to Defend of Indemnify Insured for a Barroom Brawl
April, 2002
In Auto Club Group Ins. Co. v. Burchell, et al., 642 N.W.2d 406 (Mich.Ct.App.), the Michigan Court of Appeals held that the trial court erred in finding that insurance coverage existed for injuries sustained during a barroom brawl. The appellate court determined that the insured’s actions fell within the policy’s intentional acts exclusion, and thus the insurer had no duty to defend or indemnify the insured.
Facts
Wanda Easley was working the night shift as a bartender at DeRosso’s on the night of the incident. Around 2:15 a.m., Easley announced the last call for drinks. Approximately ten minutes after Easley served the last round of drinks, Burchell asked for another drink. When Easley refused, Burchell snatched a bottle of alcohol from behind the bar and started drinking. Easley took the bottle out of Burchell’s hands, and a fight between them ensued.
Easley grabbed Burchell by the back of the pants and led him toward the door. Burchell threw Easley into chairs and tables. A group of patrons pulled Burchell off of Easley and escorted him out of the bar. Burchell’s brother, Patrick, started to hit Easley. Patrick Burchell then grabbed his beer mug and attempted to swing it at Lori Abramson, another patron at the bar. Easley grabbed the mug out of his hands, and the crowd in the bar pushed both Robert and Patrick Burchell out of the bar as the police were arriving at the scene. As the police pulled up to the bar, Robert Burchell hit Easley in the face, in front of the police officer. Patrick Burchell swung Abramson against the metal street light pole before an officer was able to handcuff him.
As a result of this incident, Easley sustained bruises from head to toe, injured her hip and her second toe, and developed a twitch in her left eye. Abramson was covered in black bruises, her left leg was swollen to almost twice its normal size, and she was diagnosed with internal bleeding as a result of being slammed against the metal pole.
Easley and Abramson sued Robert Burchell for the injuries they sustained as a result of the barroom brawl. Plaintiffs’ initial complaint alleged intentional assault and battery by Burchell; however, their amended complaint alleged only negligence and offensive “touching” by Burchell. Burchell’s insurer, Auto Club Group, sought a ruling that it did not owe a duty to defend or indemnify Burchell based on the policy’s intentional acts and criminal acts exclusions.
The trial court held that Auto Club had a duty to defend its insured because an “accident” had occurred within the meaning of the policy. The trial court determined that the policy’s bodily injury exclusion required both an intentional injury and an intentional act on the part of the insured. Because it was possible that Robert Burchell’s acts were unintentional or negligent or that he had acted in self-defense, the trial court found that it was possible that coverage existed and that the exclusion for intentional acts was not applicable.
Analysis
On appeal, Auto Club argued that the injuries resulting from the fight did not constitute an “occurrence” within the meaning of the policy and that the policy’s intentional acts exclusion barred recovery. Burchell denied making any physical contact with Abramson or Easley. In the alternative, Burchell argued that if he inadvertently touched them, it was only in self-defense.
The Michigan Court of Appeals held that no coverage existed for Burchell’s actions under the Auto Club policy. The court noted that Abramson and Easley could not avoid the provisions of the policy by simply characterizing Burchell’s actions as “negligent touching” rather than the intentional acts of assault and battery. In addition, the court stated that “Burchell cannot have it both ways.” In other words, Burchell cannot claim both that he did not act intentionally and that he acted intentionally in self-defense. The court determined that the policy exclusion barred coverage for both intentional acts and acts made in self-defense. The court entered summary disposition for Auto Club, holding that the insurer had no duty to defend or indemnify Burchell under the policy.
Learning Point:
Claimants cannot characterize a clear assault and battery/fight incident as “negligent touching” in order to bring their claims within the provisions of a liability insurance policy excluding coverage for bodily injury “expected or intended” by the insured. As the court explained: “[t]here is no duty to defend or provide coverage where the complaint is a transparent attempt to trigger insurance coverage by characterizing allegations of tortious conduct under the guise of ‘negligent’ activities.”
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