A lawsuit filed by Danielle Roland against Klub Kutter’s Bar & Lounge alleged that on September 6, 2015, Roland was a “business invitee” at Klub Kutter’s in Fort Lauderdale, Florida.[1] Roland claimed that she was “trampled by a stampede of patrons located within the Defendant’s nightclub, resulting in severe and permanent injuries.” She alleged that the “stampede was caused by a fight and subsequent shooting which took place at the Defendant’s nightclub.” Roland sued Klub Kutter’s for negligence alleging that the nightclub failed to provide adequate security measures to ensure the safety of the patrons.
The Policy’s assault and battery exclusion
Klub Kutter’s insurer, Scottsdale Insurance Company, agreed to defend Klub Kutter’s from Roland’s lawsuit under a reservation of rights. Scottsdale filed a declaratory judgment action in federal District Court for the Southern District of Florida seeking a declaration that it had no duty to defend or indemnify the nightclub in the underlying suit due to its policy’s assault and battery exclusion.
The commercial general liability policy at issue excluded “bodily injury” arising from:
1. Assault and/or Battery committed by any insured, any employee/“employee” of any insured, or any other person;
2. The attempt or failure to suppress or prevent Assault and/or Battery by any person in 1. above;
3. The selling, serving or furnishing of alcoholic beverages which results in an Assault and/or Battery.
4. The negligent;
a. Employment;
b. Investigation;
c. Supervision;
d. Reporting to the proper authorities, or failure to so report, or
e. Retention
of a person for whom any insured is or ever was legally responsible and
whose conduct would be excluded by paragraphs 1., 2. or 3. above. Id.
The Parties’ Positions
Roland took the position that the assault and battery exclusion was inapplicable because her complaint did not expressly allege that she was injured as a result of an assault or battery, an attempted assault or battery or, as a result of negligent employment, investigation, supervision, reporting to the proper authorities, or failure to report to the authorities.
Scottsdale relied upon several decisions in which courts applying Florida law have found that similar assault and battery exclusions applied to eliminate any potential for coverage. The Southern District determined that each of those cases was distinguishable because they all involved an undisputed assault or battery to the claimant in the underlying lawsuit. For example, in Whilshire Ins. Co. v. Poinciano Grocer, Inc., the underlying complaint alleged that the claimant was “attacked and brutally stabbed.”[1] In Perrine Food Retailers, Inc. v. Odyssey Re (London) Ltd., the claimant alleged he sustained personal injuries during the course of a robbery.[2] In Britamco Underwriter’s, Inc. v. Zuma Corp., the insured bar owner conceded that the patron was injured by an assault and battery.[3]
Scottsdale also relied upon Miami Beach Enter., Inc. v. First Oak Brook Corp. Syndicate, a case in which the underlying complaint alleged that the plaintiff was struck in the head with a champagne bottle after a fight broke out in the insured’s club.[4] In that case, the policy at issue specifically excluded coverage for assault, battery, or “harmful or offensive contact between two or more persons.” The Miami Beach court held that this language “was specifically tailored to preclude claims of negligence for premises liability – the very claims that [the plaintiff] asserted in his complaint.” The Klub Kutters court distinguished the Miami Beach decision because the Scottsdale policy’s exclusion did not contain the same “harmful or offensive contact” language, which could have eliminated coverage for a premises liability claim like the one pled by Roland.
The assault and battery exclusion did not relieve Scottsdale of its duty to defend Roland
The Southern District ultimately adopted the analysis set forth in the Middle District’s recent decision in AIX Specialty Ins. Co. v. Sombreros, LLC.[1] In that case, the court determined that the assault and battery exclusion did not apply to claims alleging that patrons were either shot or trampled in the aftermath of a shooting because there were no allegations in the underlying complaint indicating whether the perpetrator intended to shoot someone or whether the gun was fired accidentally. Similarly, Roland’s complaint did not contain any allegations regarding the intent of the individuals responsible for her injuries. In the absence of any allegation that the perpetrators intended to create a well-founded fear of imminent peril or intended to touch, strike or cause bodily harm, the assault and battery exclusion did not apply to relieve Scottsdale of its duty to defend.
Conclusion
Unless the policy at issue specifically defines the terms “assault” and/or “battery,” an assault and battery exclusion will be interpreted in accordance with Florida tort law, which requires intent to perform the act. The Klub Kutter’s decision is the second opinion issued by Florida’s federal District Courts in April of 2018 holding that an assault and battery exclusion does not eliminate an insurer’s duty to defend when the underlying complaint fails to expressly allege the perpetrator’s intent.
CLICK HERE to read more on the assault and battery exclusion and the duty to defend a lawsuit stemming from a mass shooting.
[1] Scottsdale Insurance Company v. Klub Kutter’s Bar & Lounge, LLC, No. 17-CV-61321, 2018 WL 1933702 (S.D. Fla. Apr. 24, 2018).
[1] Whilshire Ins. Co. v. Poinciano Grocer, Inc., 151 So. 3d 55 (M.D. Fla. 2014).
[1] Perrine Food Retailers, Inc. v. Odyssey Re (London) Ltd., 721 So. 2d 402 (Fla. 3d DCA 1998).
[1] Britamco Underwriter’s, Inc. v. Zuma Corp., 576 So. 2d 965 (Fla. 5th DCA 1991).
[1] Miami Beach Enter., Inc. v. First Oak Brook Corp. Syndicate, 682 So. 2d 161 (Fla. 3d DCA 1996).
[1] AIX Specialty Ins. Co. v. Sombreros, LLC, No. 8:17-CV-843-T-26TBM, 2018 WL 1635643 (M.D. Fla. Apr. 5, 2018).
