He refused, several club bouncers threw him down a flight of stairs, choked him, placed him face down on the ground and piled on top of him. Potter suffocated and died. This rough ejection was not only ordered by the club's owners, but was actually witnessed by them.
Potter's estate sued the club for wrongful death. The insurer denied the club coverage based upon an "assault and battery" exclusion and the insurer sued to determine coverage. The trial court agreed with the insurer and entered judgment in its favor.
On appeal, the Pennsylvania Superior Court reversed and sent the case back for judgment to be entered on behalf of the insured. The appellate court relied upon one of its own previous insurance coverage cases decided one year earlier.
In that case, parents were sued after their mentally ill adult son (who lived with them) went on a shooting rampage, killing five and severely injuring another. This case alleged the parents were negligent for allowing the son to have a gun and failing to alert authorities of their son's violent nature. The parents sought defense and indemnification under primary and excess homeowners' policies.
The insurer denied coverage because "occurrence" in the policy limited coverage to "accidents," thereby excluding intentional acts. While the shootings were undeniably intentional and not "accidents," the court held that negligence leading to intentional acts may nevertheless be considered an "accident" and therefore an "occurrence."
This precedent made the court's decision in Fat Daddy's easy. Since the complaint in that case alleged the club owners were negligent in failing to properly supervise the bouncers, the alleged negligence was an "accident" resulting in an "occurrence."
This decision, however, is hard to square with one by the same court seven years earlier. In that case a bar patron was violently attacked in the parking lot by other bar patrons. He sued the bar alleging the attack was the result of the bar serving his attackers while they were visibly intoxicated.
The bar's insurer denied coverage based upon an "assault and battery" exclusion. In a lawsuit to determine coverage, the Pennsylvania Superior Court held the exclusion was applicable and, therefore, there was no coverage.
Huh? The Fat Daddy's court, seven years later, said the parking lot case was distinguishable because the complaint did not use the word "negligence." This is a distinction without a difference as, clearly, the allegation of serving already intoxicated patrons is one of negligence, gross negligence or even recklessness--none of which fit within "assault and battery."
Part of Fat Daddy's significance is that the Pennsylvania Supreme Court chose not to hear the Superior Court appeal. Though, technically, the denial has no precedential value, practically speaking, it generally means the top court is not troubled by the lower appellate court decision.
Clearly, Pennsylvania courts, in situations where there are "intentional acts" and "assault and battery" exclusions, are aiming to find coverage where the direct causes of harm clearly are intentional, even criminal, acts. So long as there are allegations that negligence indirectly made possible the intentional acts, the courts will reject the insurers' claims of no coverage.
KIRCHER is co-chairman of the commercial litigation department at the law firm of Cozen O'Connor.
October 1, 2008
Copyright 2008© LRP Publications