Negligence By Nightclub Bouncers Who Accidentally Killed Patron They Were Ejecting Constitutes An "Accident"; Assault And Battery Exclusion Does Not Apply
April, 2007
In QBE Ins. Corp. v. M & S Landis Corp., 2007 WL 60995 (Pa. Super.), a Pennsylvania appellate court has ruled that a bouncer’s alleged negligence in causing a patron’s death constitutes an accident, and thus an “occurrence” under standard CGL policy language, and is not barred by policy’s assault and battery exclusion.
Facts
The insured operated a nightclub known as Fat Daddy’s. The underlying suit involved a wrongful death action against the nightclub and its bouncers brought by a family whose relative was smothered to death when bouncers at the nightclub forcibly evicted the individual. It was alleged that the bouncers wrestled the individual down the stairs in a choke hold, throwing him face down on the ground and laying on top of him rendering him unable to breathe until he died.
At the time of the incident, the nightclub had a commercial general liability insurance policy issued by QBE. The insured sought defense and indemnification from QBE for the underlying lawsuit. QBE denied Fat Daddy’s claim for coverage, asserting that the event described in the underlying action was not an “occurrence” as that term is defined by the policy and that the policy’s “assault and battery exclusion” applied.
The QBE policy defines “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The “assault and battery” exclusion, in part, provided: “A. This insurance does not apply to actions and proceedings to recover damages for “bodily injury”... arising from the following and the Company is under no duty to defend or to indemnify an insured in any action or proceeding alleging such damage: 1. Assault and Battery or any act or omission in connection with the prevention or suppression of such acts; B. This exclusion applies regardless of the degree of culpability or intent....”
QBE and Fat Daddy’s both moved for summary judgment. The trial court granted the insurer’s motion and denied Fat Daddy’s cross motion. The trial court agreed with QBE that the events giving rise to the underlying claim did not constitute an “occurrence” and that even if they did, QBE properly denied the claim based upon the assault and battery exclusion.
Analysis
The appellate court reversed and entered summary judgment for the insured.
1. Negligence Allegations Constitute An “Occurrence”
The court first considered whether the underlying incident constituted an “occurrence” under the policy. Fat Daddy’s, while admitting that the complaint described the altercation with such intentional terms as “forcibly,” “violently,” and “seized, held and detained,” maintained that, at its core, the complaint alleged negligence. Fat Daddy’s argued that it was not alleged that defendants’ assault caused decedent’s death, but rather that, after eviction, they negligently restrained and/or improperly restrained the victim causing his death.
The appellate court agreed, citing Donegal Mutual Ins. Co. v. Baumhammers, 893 A.2d 797 (Pa. Super. 2006) (en banc), appeal granted, 908 A.2d 265 (Pa. Aug. 29, 2006). In Baumhammers, parents were sued after their mentally-unstable adult son went on a shooting rampage. The wrongful death and survival actions alleged that the parents were negligent in failing to remove the gun used in the rampage from their son’s possession, and for failing to alert authorities about his violent propensities. The parents sought defense and indemnification under their primary and excess homeowners’ policies which contained the same definition of “occurrence” as the QBE policy. The Baumhammers court considered whether the allegations in the underlying complaints fell within the definition of occurrence, that is, whether they were “an accident.”
Baumhammers rejected the insurer’s argument that simply because the immediate act causing the bodily injury (the shootings) was intentional, that fact precluded a determination that the parents’ negligence, which preceded the intentional shootings, was an accident. The court held that negligence leading to intentional acts may nevertheless be considered an “accident,” and thus an “occurrence.” In analyzing the factual allegations in the underlying complaints, the court reasoned that they fell within the policy’s definition of an “occurrence.” The court held that the parent’s alleged negligence, no less negligent because it was alleged to have led to intentional attacks, could be considered an “accident” triggering an occurrence under the policy.
Approving the Baumhammers standard, the court here found that although the victim’s forceful eviction from the nightclub involved intentional conduct, Fat Daddy’s legal liability for the death derived from the allegations of their negligence. Further, as in Baumhammers, there were specific factual allegations supporting the claims of negligence, including that the bouncers improperly restrained the victim, that Fat Daddy’s failed to properly train and supervise their staff about evicting patrons, and that Fat Daddy’s failed to timely render first aid. The court concluded that although intentional conduct was allegedly the most immediate cause of death, Fat Daddy’s alleged negligence was no less negligent because it led to an intentional attack. Therefore, the court held that there was an “accident” triggering an occurrence under the policy.
2. Assault and Battery Exclusion Inapplicable
The court next considered whether the “assault and battery” exclusion applied. The underlying complaint contained numerous allegations of negligence by Fat Daddy’s employees leading directly to the death. Unlike a case where a bar patron is assaulted in a parking lot by other bar patrons, where the assault and battery exclusion would apply, the court found that the victim’s “bodily injury” did not “aris[e] from” an assault and battery, but rather the alleged negligence of the nightclub and its bouncers. As the allegations of the underlying complaint sought relief for negligence, the assault and battery exclusion did not apply.
Learning Point
In considering a claim against an insured involving negligence that leads to intentional acts, a court may find the allegations of negligence sufficient to constitute an “occurrence” under standard CGL policy language and decline to find such negligence claims barred by an assault and battery exclusion.
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