Opinion
14-P-581
08-04-2015
ACADIA INSURANCE COMPANY v. GREAT AMERICAN E&S INSURANCE COMPANY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
At all relevant times, plaintiff Acadia Insurance Company (Acadia) and defendant Great American E&S Insurance Company (Great American) both insured Florence Family Enterprises, LLC (Florence), the owner of the premises on which Silk City Tap Room (Silk City) operated a drinking establishment. Acadia filed this declaratory judgment action, claiming that Great American had the primary obligation to defend Florence in a wrongful death action brought by the administrator of the estate of John Connell against Silk City, Florence, and James M. Duffy, Jr. On cross motions for summary judgment, a judge of the Superior Court ruled that Great American had no duty to defend Florence because a broadly worded "assault and/or battery exclusion" in the Great American policy negated coverage for the underlying claims. Before us is Acadia's appeal from the ensuing declaratory judgment. After de novo review, see Norfolk & Dedham Mut. Fire Ins. Co. v. Cleary Consultants, Inc., 81 Mass. App. Ct. 40, 47 (2011), we affirm.
Whether a liability insurer has a duty to defend an action against its insured is determined by matching the underlying complaint with the policy provisions. Sterilite Corp. v. Continental Cas. Co., 17 Mass. App. Ct. 316, 318 (1983). The duty to defend arises when the allegations of the complaint "are reasonably susceptible of an interpretation that states or roughly sketches a claim covered by the policy terms." Billings v. Commerce Ins. Co., 458 Mass. 194, 200 (2010).
Here, the relevant allegations of the underlying complaint may be summarized as follows. On January 3, 2009, Connell was a patron at Silk City. Silk City employees served Connell to excess; he became highly intoxicated and had "altercations" with Silk City employees. Connell also had a "physical confrontation" with another patron, Duffy. Silk City employees finally escorted Connell outside, where he engaged in another "altercation" with Duffy on the front steps of the building. "During this altercation Duffy caused [Connell] to fall from the stairs to the pavement below where he struck his head and sustained a severe and ultimately fatal head injury."
These general allegations are incorporated into each of the claims seeking damages from the various defendants for Connell's wrongful death and conscious pain and suffering. The counts against Duffy allege negligence, battery, and wilful, wanton, or reckless conduct; the counts against Silk City allege negligence, wilful, wanton, or reckless conduct, and liquor liability; and the counts against Florence allege premises liability. The specific allegations as to Florence are that Connell's injuries occurred on Florence's premises "in whole or in part as a result of [its] negligent failure to properly maintain and keep its premises safe and free from defects includ[ing] points of egress, stairways, landings, handrails and exterior lighting."
The assault and/or battery exclusion in the Great American policy provides in relevant part:
"It is agreed that this insurance does not apply to any liability arising out of assault and/or battery or out of any act or omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or direction of the insured, his employees, patrons or any other person" (emphasis supplied).The phrase "arising out of" sweeps broadly and is akin to "but for" causation. Bagley v. Monticello Ins. Co., 430 Mass. 454, 457 (1999). Fuller v. First Financial Ins. Co., 448 Mass. 1, 6 (2006). Accordingly, for the exclusion to apply, the assault and/or battery need not be the only contributing cause alleged. See United Natl. Ins. Co. v. Parish, 48 Mass. App. Ct. 67, 71-72 (1999); First Financial Ins. Co. v. LaRosa, 49 Mass. App. Ct. 901, 901 (2000).
Read sensibly and holistically, it is clear that the underlying complaint alleges that an assault and/or battery was a but for cause of the injury to Connell. The allegation that "[d]uring this altercation Duffy caused Connell to fall from the stairs" can only be interpreted to mean that, at a minimum, Connell fell as a result of an assault, if not a battery. As matter of law, the exclusion negates Great American's duty to defend.
Judgment affirmed.
By the Court (Cohen, Hanlon & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 4, 2015.