coverage where the complaint in the underlying action alleged assault and battery due to negligence:
The insurance policy clearly excludes coverage "for any claim asserting a cause of action . . . arising out of an assault and/or battery whether caused by . . . [an] omission by . . . the Insured, and/or his employees." The plain language of this exclusion precludes coverage for a suit alleging that the insured's negligence caused the assault and battery.
United National Ins. Co. v. Entertainment Group, Inc., 945 F.2d 210, 213 (7th Cir. 1991).
Faced with similar facts, the court in St. Paul Surplus Lines Ins. Co. v. 1401 Dixon's, Inc., 582 F. Supp. 865, 868 (E.D. Pa. 1984) rejected the insured's self-defence theory as irrelevant and held that the assault and battery exclusion barred coverage of claims arising from an assault or battery by "any person":
Dixon's depicts [the plaintiff] as the instigator of the fight who brandished a deadly weapon and was struck by another in self-defense. In that situation, it is contended that there could be no liability for assault and battery, but only for the negligent supervision of Dixon's parking lot. I cannot agree. [Plaintiff's] injuries still arose from an assault and battery, albeit his own. The controverted exclusion applies to an assault and battery committed by "any person." In order for the unknown assailant to have been justified in striking [plaintiff], [plaintiff's] actions would had to rise to the level of an assault and battery. Thus, [plaintiff's] initial assault and battery would ultimately have led to his own injuries. If the striking of [plaintiff] was not justified, then he was the direct victim of assault and battery, triggering the exclusion.
See also Stiglich v. Tracks, D.C., Inc., 721 F. Supp. 1386, 1387 (D.D.C. 1989). (exclusion for damage "arising out of assault and battery or out of any acts or omission in connection with the prevention or suppression of such acts" barred coverage of a claim arising from alleged failure to hire sufficient security); Terra Nova Ins. Co. v. Thee Kandy Store, Inc., 679 F. Supp. 476, 478 (E.D. Pa. 1988) (assault and battery exclusion barred coverage for being "negligent in preventing the assault and battery" since "regardless of the language of the allegations, the original cause of harm arose from an alleged assault and battery".
A number of state courts have also found similar exclusions to bar coverage where the complaint alleged acts that fell within the scope of the exclusion. See Gregory v. Western World Ins. Co., Inc., 481 So. 2d 878, 881 (Ala. 1985) (exclusion for damage "arising out of assault and battery . . . whether caused by or at the instigation or direction of . . . patrons or any other person" barred coverage for an assault and battery of one patron by second patron); Britamco Underwriter , Inc. v. Zuma Corp., 576 So. 2d 965 (Fla. Dist. Ct. App. 1991) (assault and battery exclusion barred coverage for negligent failure to provide adequate security which resulted in one patron being assaulted and battered by other patrons); Kiefer v. Whittaker, 468 So. 2d 587, 588 (La. Ct. App. 1985), cert. denied, 469 So. 2d 979 (La. 1985) (negligence of the insureds resulting in an assault and battery of a patron is excluded); Illinois Employers Ins. of Wausau v. Dragovich, 139 Mich. App. 502, 362 N.W.2d 767, 769 (Mich. App. 1984) (assault and battery exclusion barred coverage for injuries to third person allegedly struck by employees of the insured "regardless of the label, be it negligence or intentional tort"); Hernandez v. First Financial Ins. Co., 106 Nev. 900, 802 P.2d 1278 (Nev. 1990) (assault and battery exclusion "includes both damages arising from the assault an d battery itself and negligent hiring, training or supervision," therefore barring coverage for injuries sustained from employee's assault and battery).
Holdings from other jurisdictions are virtually unanimous in finding that the assault and battery exclusions apply to preclude coverage in similar cases. These decisions rely on traditional principles of contract interpretation; no compelling public policy or other interest argues for a contrary result. This Court therefore believes that the California Supreme Court would rule consistently with these cases.
Applying these precedents, the assault and battery exclusion bars coverage of the claim at issue irrespective of the outcome of the state court proceedings in the underlying action. Even if the state court ultimately vindicates Haring, the incident at issue nonetheless constituted either an "assault and battery" or "an act or omission in connection with the prevention or suppression of such acts." The outcome of the underlying action will not affect the applicability of the assault and battery exclusion and, on the other hand, this Court's ruling should in no way have any bearing on the outcome of that action. Essex is entitled to summary judgment; the assault and battery exclusion releases it from any obligation to defend or indemnify the Yis in the underlying action.
C. Rule 11 Sanctions
Defendants allege that Essex failed to cite various cases (specifically, Allstate Ins. Co. v. Harris, 445 F. Supp. 847 (N.D. Cal. 1978); Zurich Ins. Co. v. Alvarez by and through Calva, 669 F. Supp. 307 (C.D. Cal 1987); Gray v. Zurich Insurance Co., 65 Cal. 2d 263, 54 Cal. Rptr. 104 , 419 P.2d 168 (1966)) and that sanctions are warranted. These cases, however, are not directly relevant to the current action. They involve actions in which the issues before the state court had a direct impact on the federal action, warranting a stay of the federal action pending the outcome of the state court's action. Because these cases are inapposite, defendant's request for sanctions is DENIED.
For the reasons discussed above:
1. Plaintiff's motion for a summary judgment is GRANTED.
2. Defendant's request for Rule 11 sanctions is DENIED.
DATED: April 29, 1992
FERN M. SMITH
United States District Judge