By Arthur Schwartz on December 1, 2013
The California Court of Appeal, Second Appellate District, recently held that an insurance policy’s “Assault or Battery” exclusion did not require direct “body-to-body” contact between individuals, and it unambiguously applied to preclude coverage for an underlying lawsuit in which a customer set fire to a nightclub dancer.
Busby worked as a nightclub dancer with Oxnard Hospitality Enterprise, Inc. She suffered bodily injury on Oxnard’s premises when a nightclub patron threw flammable liquid on her and set her on fire. Busby sued Oxnard and others for negligent failure to provide adequate security and sued her assailant for battery. Busby also asserted a cause of action for negligent infliction of emotional distress on behalf of her minor children. While the underlying action was pending, Mt. Vernon brought a declaratory relief action Oxnard seeking a declaration that it had no duty to indemnify Oxnard based on the “Assault or Battery” exclusion. The underlying action was resolved by stipulated judgment against Oxnard of $10 million. Oxnard assigned all of its rights against Mt. Vernon to Busby. Mt. Vernon then moved for summary judgment in the declaratory judgment action.
In its Sept. 16 opinion in Mt. Vernon Fire Ins. Corp. v. Oxnard Hospitality, Enterprise, Inc., the appellate court first rejected Busby’s argument the “Assault or Battery” exclusion did not apply because Busby’s theory of recovery was negligence. The court cited case law holding any claim based on assault and battery, irrespective of the legal theory asserted against the insured, triggered the exclusion. The court also found that the exclusion precluded coverage for Busby’s claims. The exclusion’s definition of “battery” — “negligent or intentional wrongful physical contact with another without consent that results in physical or emotional injury” – clearly required physical contact with another but did not distinguish between directly striking an individual and striking an individual through an intermediary object. The court found that the exclusion unambiguously excluded coverage because the act of setting fire to another person constituted “physical contact.