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September 2013

Body-to-Body Contact Not Required for Policy’s “Assault or Battery” Exclusion to Apply

The California Court of Appeal, Second Appellate District, affirmed the trial court’s grant of summary judgment in favor of Mt. Vernon Fire Insurance Co. on its declaratory judgment action against Roberta Busby.  The Court of Appeal held the insurance policy’s “Assault or Battery” exclusion did not require direct “body-to-body” contact between individuals and unambiguously applied to preclude coverage for Busby’s claims.

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.  Oxnard’s demurrer as to this cause of action was sustained with leave to amend and the minors did not amend or take further action to pursue their claims.  Oxnard never obtained a dismissal of this cause of action. 

While the underlying action was pending, Mt. Vernon brought a declaratory relief action seeking a judgment declaring it had no duty to pay any damages that might be awarded against Oxnard based on the “Assault or Battery” exclusion.  The exclusion precluded coverage for all bodily injury arising out of assault or battery and defined “battery” to mean “negligent or intentional wrongful physical contact with another without consent that results in physical or emotional injury.”  “Assault” was defined as “the threat or use of force on another that causes that person to have apprehension of imminent harmful or offensive conduct, whether or not the threat or use of force is alleged to be negligent, intentional or criminal in nature.”

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.

Busby opposed Mt. Vernon’s motion on the ground the “Assault or Battery” exclusion did not apply because the definition of “battery” required actual “body-to-body” physical contact, which did not occur.  She also argued that “physical contact” meant “actual physical touching between one person and another.”  Mt. Vernon argued “physical contact” meant “the union or junction of things that have a material existence, or the touching of material things.”  The trial court granted Mt. Vernon’s motion.  The Court of Appeal affirmed.

On review, 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.  In a footnote, the court noted Mt. Vernon never asserted the application of the “Assault” prong of the exclusion even though throwing flammable liquid on someone would cause “apprehension of imminent harmful conduct.”  The court found the “Assault” prong of the exclusion applied to bar coverage regardless of the plain meaning of “physical contact.”

Turning to the “Battery” prong of the exclusion, the court found the exclusion unambiguously precluded coverage for Busby’s claims.  The policy’s definition of “battery” extended to the intentional attack made on Busby.  The exclusion’s definition of “battery” as “physical contact” with another did not distinguish between directly striking an individual and striking an individual through an intermediary object.  Therefore, summary judgment was warranted.  The appellate court also held the grant of summary judgment disposed of any claim Busby’s children may have asserted resulting from the incident. 

Click here for the opinion. 

The opinion in Mt. Vernon Fire Ins. Corp. v. Oxnard Hospitality, Enterprise, Inc., (Cal. App., Sept. 16, 2013, No. B244569) 2013 Cal. App. LEXIS 735, is not final.  It may be withdrawn from publication, modified on rehearing, or review may be granted by the California Supreme Court.  These events would render the opinion unavailable for use as legal authority in California state courts.

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