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Mount Vernon Fire Insurance Corp. v. Oxnard Hospitality Enterprise, Inc.

California Court of Appeals, Second District, Third Division

September 16, 2013

MOUNT VERNON FIRE INSURANCE CORPORATION, Plaintiff, Cross-Defendant and Respondent;
OXNARD HOSPITALITY ENTERPRISE, INC. et al., Defendants, Cross Complainants, and Appellants.

APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC461268 Michelle R. Rosenblatt, Judge.

HollinsLaw, Kathleen Mary Kushi Carter and Christine R. Arnold for Plaintiff, Cross-Defendant and Respondent.

Law Offices of Russell G. Petti, Russell G. Petti; Kantor & Kantor and Glenn R. Kantor for Defendants, Cross Complainants and Appellants.


This appeal involves the interpretation of the term “physical contact” in an insurance liability policy’s “Assault or Battery” exclusion. Appellant, Roberta Busby (Busby) sued her employer, Oxnard Hospitality Enterprise, Inc., and others (collectively, Oxnard), for negligence after she sustained serious bodily injuries when a third party threw a glass full of a flammable liquid on her and set her on fire (underlying action). The trial court entered a $10 million stipulated judgment in Busby’s favor against Oxnard.[1]

In the instant action, Mount Vernon Fire Insurance Company (Insurer), the liability insurer for Oxnard, sought a declaratory judgment that it had no duty to indemnify Oxnard (and/or its owners), nor to pay any claim of Busby or her minor children arising from this incident. Insurer relied entirely on the policy’s “Assault or Battery” exclusion. Based on that exclusion, the trial court granted Insurer’s motion for summary judgment.

After a review of the record and the policy’s provisions, we affirm. The term “battery, ” as used in that exclusion, is defined as “physical contact with another without consent” (italics added). We reject Busby’s argument that such definition requires a direct “body to body” contact. Instead, we conclude that it necessarily includes a striking or touching as occurred in this case.


Busby, a nightclub dancer, suffered bodily injury on Oxnard’s premises shortly after she had completed her shift when a patron of the nightclub threw flammable liquid on her and then set her on fire. Her assailant was later convicted of aggravated mayhem and torture. In the underlying action, Busby sued Oxnard and others for negligent failure to provide adequate security (underlying action). Included in Busby’s original complaint was a cause of action on behalf of her children, Marissa Marie Morales and Gabriella Miriam Harris (minor children). That cause of action was for negligent infliction of emotional distress (NIED). Oxnard filed a demurrer.

Because minor children were absent when Busby was attacked, the trial court sustained the demurrer with leave to amend as to their cause of action. The minor children, however, did not amend and took no further action to pursue their claims. Busby’s first amended complaint did not include the cause of action originally asserted by the minor children, but alleged only her causes of action for battery against her assailant and for negligence against her employer. The record does not disclose that Oxnard ever sought or obtained dismissal of the minor children’s claim against it, or that the minor children ever filed a voluntarily dismissal.

While the underlying action was pending, the Insurer brought the instant action for declaratory relief. It sought a judgment declaring that it had no duty under the policy to pay any damages that might be awarded against Oxnard in the underlying action. Insurer relied on the “Assault or Battery” exclusion in the liability policy issued to Oxnard. That endorsement excluded coverage for “all ‘bodily injury’... arising out of ‘assault’ or ‘battery’... including but not limited to ‘assault’ or ‘battery’ arising out of or caused in whole or in part by negligence.... [¶] ‘Battery’ means negligent or intentional wrongful physical contact with another without consent that results in physical or emotional injury.”

The underlying action was resolved by a stipulated judgment against Oxnard in the amount of $10 million. As already noted, Oxnard assigned all of its rights against Insurer to Busby.

Subsequently, in the instant action, Insurer filed a motion for summary judgment against Busby.[2] In Busby’s opposition to Insurer’s motion for summary judgment, she argued that the exclusion’s definition of battery required actual “body-to-body” physical contact. Since that admittedly did not occur here, she contends that the exclusion did not apply and thus there was coverage under the policy. She also argued that “physical contact” plainly means “actual physical touching between one person and another” and cited a dictionary’s “definition of ‘physical’ [as] ‘of or relating to the body[]’ [citation]” and “ ‘contact’ [as] ‘a touching or meeting of bodies[]’ [citation].”

Insurer, in its motion for summary judgment, argued otherwise. It contended that “[‘physical contact’] means the union or junction of things that have a material existence, or the touching of material things” and cited a different dictionary’s definition of “physical” as “ ‘of or relating to natural sciences, ’ ...

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