“Assault and Battery” Insurance Policy Exclusion Applies Where Bystander Was Injured by Bar’s Bouncer

In Hermitage Ins. Co. v. Beer-Bros, Inc. of NYC (a personal injury/premises liability case), the Supreme Court, NY County (in an opinion by Judge Braun) held in a decision dated May 12, 2015 that a bar/restaurant’s insurer was not obligated to defend or indemnify the bar under the “assault and battery” exclusion in the applicable insurance policy.

Here are the facts, as summarized by the court:

Mourino, the plaintiff in the underlying action, contends that she was injured when Beer-Bros’ security person/bouncer, Morgan, tackled defendant Mark Petrisch (Petrisch) into Mourino. Allegedly, Petrisch, who was intoxicated, was denied admission by Morgan to Beer-Bros’ establishment, the Hop Devil Grill at 129 St. Marks Place, New York, New York. Petrisch then spit on Morgan who chased Petrisch across the street. Mourino was injured when Morgan tackled Petrisch into Mourino.

Although the court found that plaintiff’s evidence raised an issue of fact as to the applicability of the “independent contractor” policy exclusion, Judge Braun nevertheless concluded that the “assault and battery” exclusion applied:

[E]ven though Mourino pleads her claim in the underlying action as negligence, her injuries grew out of a battery, which is excluded from coverage. Regardless of the theory pleaded, if there would be no cause of action “but-for” an assault or battery, the exclusion applies. That Morgan’s intentional act may have been directed at Petrisch and that Mourino was merely an innocent bystander would not change the fact that Mourino’s injuries arose out of a battery, and that is excluded from coverage.

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