Insurance – CGL – Bars – Assault & Battery Exclusions – Tort/Negligence – Wrongful Death – Drunk Driver

The underlying state-court complaint alleges that an intoxicated bar patron drove her SUV over the decedent in the bar parking lot, killing him. However, that complaint also alleges that the decedent was lying unconscious in the parking lot after being struck while trying to stop a bar brawl that had spilled out into the parking lot; moreover, the driver’s passenger was allegedly one of the brawlers. These allegations fall within the “assault and/or battery” exclusions in the policies that the plaintiff-insurer issued to the two defendant-bars.

The court grants summary judgment for the insurer on its claim for a declaratory judgment that it has no responsibility to defend or indemnify the bars in the underlying action.

The underlying complaint alleges that two bars – both insured by the plaintiff-insurer – overserved the SUV driver. Both bars’ policies say the insurance does not apply to “injury” or “bodily injury” arising out of “Assault and/or Battery Committed by any insured, any employee/’employee’ of any insured, or any other person.” The policies don’t define “arising out of.”

For the purpose of construing an exclusionary clause in a general liability policy, “arising out of” should be narrowly construed as “caused by.” McPherson By & Through McPherson v. Michigan Mut. Ins. Co., 310 S.C. 316, 426 S.E.2d 770 (1993).

The insurer maintains that the decedent’s death arose from an assault and battery within the meaning of the exclusions, i.e., the brawl that rendered him unconscious put him in a position where the SUV driver could have run over him in the parking lot. The decedent’s estate argues that his death was proximately caused by the SUV driver running over the decedent in her intoxicated state which was caused by the act of the bars overserving her liquor.

The underlying complaint alleges that the SUV driver was driving away from the fight once her boyfriend, who had been a direct participant in the fight, entered her vehicle. In this light, the injury to the decedent was “caused by” him being knocked unconscious by the fight and the SUV driver’s act of running over the decedent as she fled from the fight, at the direction of her male companion who was in the fight. The SUV driver’s alleged conduct is neither isolated nor independent from the decedent being knocked unconscious. Instead, the relationship between the assault and battery and the ultimate injury was immediate and direct. Therefore, it arose from the assault and battery as contemplated under the policy exclusion.

Without the assault and battery, i.e., the brawl, the decedent would not have been knocked to the ground unconscious and subsequently run over by the SUV driver.

The allegations in the underlying complaint are excluded from the bars’ policies. The insurer has no duty to defend or indemnify the bars in the underlying lawsuit.

Scottsdale Insurance Co. v. GS Thadius LLC (Lawyers Weekly No. 002-143-18, 19 pp.) (A. Marvin Quattlebaum Jr., J.) 4:18-cv-00099. Robert Mills Kennedy Jr. for plaintiff; Joseph Stanley Sandefur, Chelsea Lane Monroe, Douglas Charles Baxter, Raymond Carl Fischer, William Stuart Duncan and Eric Gillespie Armstrong for defendants. D.S.C.