In
its recent decision in Tower Ins. Co. of
New York v. Blocker, 2013 U.S. Dist. LEXIS 98296 (M.D. Fla. July 15, 2013), the United States District
Court for the Middle District of Florida had occasion to consider the scope of
an assault and battery exclusion.
Tower
Insurance Company insured JB Rentals under a general liability policy with the
following assault and battery exclusion barring coverage for bodily injury:
… arising from, due to or caused by:
(1) Assault
and/or Battery committed by any insured, any employee of any insured, any
patron or customer of the insured, or any other person; or
(2) The
failure to suppress or prevent any Assault and/or Battery or any act or
omission in connection with any Assault and/or Battery; or
(3) The
negligent hiring, supervision or training of any employee or agent of the
insured with respect to the events de-scribed in (1) and (2) above.
JB
Rentals sought coverage for an underlying suit arising out of the stabbing of
an individual on its premises. The suit
alleged that JB Rentals failed to maintain its premises in a safe condition and
that it knew “that criminal acts or attacks were reasonably likely to be
perpetrated unless defendants took steps to deter and prevent criminal acts and
otherwise provide proper security.”
Tower
provided JB with a defense in the suit, but commenced a coverage litigation
seeking a declaration of non-coverage based on the assault and battery
exclusion. The insured agreed that the
underlying incident qualified as an assault and battery for the purpose of the
exclusion. It nevertheless argued that
the exclusion was inapplicable to the theories of liability asserted by
underlying plaintiff; namely, JB Rental’s negligent failure to have prevented
the incident.
Citing
to numerous Florida decisions, the court observed that “Florida [courts] have
consistently found the exclusion to apply even when the underlying action is
couched in terms of negligence by the insured with regard to the premises.” In particular, explained the court, the
phrase “arising out of” is construed differently than the phrase “caused by”
and “requires more than mere coincidence, a causal connection, between the
conduct and the injury, but not does not require proximate cause.” As such, and having concluded that the theories
of negligence asserted against JB Rentals were causally connected to the
alleged assault and battery, the court agreed that the exclusion negated Tower’s
duty to defend or indemnify.
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