You’re Barred. Again: Negligent Acts, Conditional Language, and the Assault/Battery Exclusion

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A fatal shooting took place at a bar. The bar purchased an insurance policy, which contained an assault and battery exclusion, barring coverage for bodily injury or property damage arising out of “any actual, threatened or alleged assault or battery” and the “failure to any insured or anyone else for whom any insured is or could be held legally liable to prevent or suppress any assault or battery.”

The bar and additional insured premises owner were sued for negligent security following the shooting. The insurer who explained by way of a disclaimer letter that if the death were found to be caused by an assault or battery, the assault and battery exclusion would apply. The bar argued that the exclusion was ambiguous in that it did not expressly list negligent security as an excluded action. The court disagreed. The bar further argued that he disclaimer letter was insufficient because it contained conditional language. The challenged language included statements that “the circumstances . . . remain unclear;” that “the shooter[] has been criminally charged;” and that “[i]n the event it is determined that [the] death was caused by an assault or battery, including . . . an intentional shooting, the Exclusions – Assault and Battery… will operate to bar coverage for this claim.” The court however noted that the disclaimer letter also stated that, to the extent the damages sought in the [ ] complaint relate to an assault or battery, [the insurer] hereby disclaims all coverage.” The letter therefore clearly identified the conduct excluded, the provision of the policy under which it is excluded and that the coverage is disclaimed. In coming to this decision, the court referred to the decision in QBE Ins. Corp. v. Jinx-Proof case, in which the New York Court of Appeals held that a disclaimer was sufficient where it offered a defense, but stated that coverage was specifically excluded for assault and battery claims.

This case, Century Sur. Co. v. Whispers Inn Lounge, Inc., 2016 U.S. Dist. LEXIS 17067 (S.D.N.Y. Feb. 10, 2016), provides a concise recap of negligence claims surrounding criminal acts. The court follows well-established precedent to make clear that assault and battery exclusions, like the one at issue, preclude coverage for injuries even where the claims are brought as negligence claims. The court also made clear that a disclaimer letter is sufficient where it clearly identifies the conduct excluded, the provision of the policy under which it is excluded, and that coverage is disclaimed.