New York Court Rejects Plaintiff’s Attempt to Circumvent Assault & Battery Exclusion of CGL Policy

May 16, 2015

Most commercial general liability policies issued to bars and restaurants specifically exclude coverage for bodily injury arising out of an assault and battery. In order to avoid this limitation, Plaintiffs often try to trigger coverage by alleging that the insured’s negligence was the cause of the injury—not the actual assault and battery.

This strategy may work in some jurisdictions, but it won’t work in New York. Following precedent set by the New York Court of Appeals in 1995, the Supreme Court of New York County held in Hermitage Insurance Company v. Beer-Bros, Inc. that the insurer had no duty to defend a bar being sued for negligence by a bystander who was injured when a bouncer tackled another person.

Plaintiff brought suit against Beer-Bros alleging causes of action for negligence and negligent hiring, training, educating and supervising its security personnel. The Complaint did not include any allegations of assault or battery. Hermitage filed a Declaratory Judgment action seeking an Order that it had no duty to defend or indemnify Beer-Bros under the assault and battery exclusion of the liability policy.

Under New York law, an insured’s duty to defend is triggered when the allegations of the complaint suggest a reasonable possibility of coverage. The analysis to determine whether a duty exists is based on the factual allegations of the complaint and not on any conclusory assertions. The policy excluded coverage for any claim alleging an assault or battery no matter how the assault or battery is alleged to have occurred.

The court examined the facts of the underlying complaint and determined that Plaintiff’s causes of action for negligence were only window dressing because even though the counts sounded in negligence, the injuries arose from a battery. Following well-established case law, the court held that regardless of the theory pleaded, if there would be no cause of action “but-for” the battery, then the exclusion applies. The court ruled that Hermitage had no duty to defend Beer-Bros in the underlying action.