An “assault or battery” exclusion barred coverage for an insured nightclub owner’s alleged negligence in failing to prevent an assailant from throwing flammable liquid on a claimant and then setting the claimant on fire. (Mount VernonFire Ins. Corp. v. Oxnard Hospitality Enterprise, Inc. (2013) 219 Cal.App.4th 876)
Facts
Oxnard Hospitality Enterprise, Inc. (Oxnard) operated a night club where Roberta Busby (Busby) worked as a dancer. After Busby’s shift one evening, and while Busby was in the parking lot, night club patron Rianne Thierault-Odom (Odom) threw flammable liquid on Busby and then set Busby on fire. As a result, Busby suffered severe burns. Odom was later convicted of aggravated mayhem and torture.
Busby subsequently filed a personal injury lawsuit asserting a claim against Odom for battery and a claim against Oxnard for negligent failure to provide adequate security. Oxnard tendered the defense of the lawsuit to its commercial general liability insurer, Mount Vernon Fire Insurance Corporation (Mount Vernon). However, the Mount Vernon policy contained an “assault or battery” exclusion that barred coverage for any claim “based on ‘assault’ or ‘battery’, or … any act or omission in connection with the prevention or suppression of any ‘assault’ or ‘battery’…, whether caused by … an insured … [or] patrons…. This exclusion applies to all ‘bodily injury’ … arising out of ‘assault’ or ‘battery’ … including but not limited to ‘assault’ or ‘battery’ arising out of or caused in whole or in part by negligence…. ‘Battery’ means negligent or intentional physical contact with another without consent that results in physical or emotional injury.” Based on the policy’s assault or battery exclusion, Mount Vernon disclaimed any duty to defend or indemnify Oxnard against Busby’s personal injury lawsuit.
Following Mount Vernon’s denial of coverage, Busby obtained a $10 million stipulated judgment against Oxnard. Busby then agreed not to execute on the judgment against Oxnard in exchange for an assignment of any rights Oxnard might have against Mount Vernon.
Mount Vernon filed a declaratory relief action seeking a ruling that the policy’s assault or battery exclusion barred coverage for any liability Oxnard had to Busby in the underlying action. The trial court concluded that the assault or battery exclusion applied, and that Mount Vernon therefore had no duty to pay any portion of the $10 million judgment that Busby had obtained against Oxnard. Busby appealed.
Holding
The Court of Appeal affirmed. According to the appellate court, Mount Vernon’s assault and battery exclusion clearly and unambiguously barred coverage for Oxnard’s alleged negligent failure to prevent Odom’s attack on Busby. Busby’s “negligent security” claim against Oxnard was entirely dependent on Oxnard’s alleged failure to prevent Odom’s “battery” on Busby.
Busby argued that the assault and battery exclusion did not apply because the exclusion defined “battery” as “physical contact with another,” and Odom’s act of throwing flammable liquid on Busby did not involve “physical contact” (i.e., “body-to-body contact”) with Busby. The appellate court rejected that interpretation of the exclusion, reasoning that the “physical contact with another” requirement could be met whether the assailant directly struck the victim (e.g., with a closed fist) or whether the assailant caused something else to strike the victim (e.g., by throwing a bottle at the victim). The appellate court concluded that in light of Mount Vernon’s plainly-worded assault and battery exclusion, neither the insured, Oxnard, nor its assignee, Busby, could have any reasonable expectation of coverage.
Comment
The appellate court reasoned that a “battery” does not require direct “body-to-body contact” between the assailant and the victim. Indeed, the Restatement Second of Torts specifically states that “contact with another’s person” does not mean that that the perpetrator must bring his own body in contact with another person’s body. Rather, under the Restatement Second , a person can be liable for battery “if [he or she] throws a substance, such as water, upon the other.” Here, Odom’s act of throwing flammable liquid on Busby, and then lighting Busby on fire, clearly constituted a “battery.”