Opinion
C.A. No. 04C-09-232 SCD.
Submitted: December 2, 2005.
Decided: December 19, 2005.
OPINION
Penn-Star Insurance Company ("Penn-Star") moves for Summary Judgment in this Declaratory Judgment action. It seeks an order determining Penn-Star's rights and obligations under its commercial general liability insurance policy, namely that it has no duty to indemnify or defend its insured, JDS Enterprises, LLC, t/a Cedar Tavern ("JDS") in an underlying tort action, Wagner v. JDS Enterprises, LLC t/a Cedar Tavern, et al. ("underlying action").
FACTS
In May, 2004, Donald Wagner ("Wagner") filed a personal injury complaint, against Daniel Vickery ("Vickery"), Ira H. Green ("Green"), Derek Talley ("Talley") and Cedar Tavern, a bar which is owned and operated by JDS Enterprises, LLC ("JDS"). The allegations in the complaint and depositions taken in the underlying action show that on October 16, 2002, Wagner was assaulted after leaving Cedar Tavern sometime after midnight. Earlier that night, sometime after 11 p.m., Wagner claims he attempted to break up a fight between Vickery, Green, Talley and a group of Hispanic men while inside the bar. Wagner claims he walked the Hispanic men to their cars and returned to the bar. Sometime after midnight, Wagner left the bar to go home. Moments later he was attacked by Vickery, Green and Talley.
Wagner v. JDS Enterprises, LLC t/a Cedar Tavern, et al.
The Grand Jury charged Ira Green, Derek Talley and Daniel Vickery with Assault First Degree, Possession of a Deadly Weapon During the Commission of a Felony and Conspiracy Second Degree for their involvement in the October 16, 2002 incident. On April 16, 2003 Daniel Vickery pled guilty to Assault First Degree. He was sentenced on June 20, 2003. As part of his sentence, he was ordered to have no contact with Donald D. Wagner.
Shortly thereafter, a police officer found an unconscious and unresponsive Wagner lying on Brown Street, about a quarter block from Cedar Tavern. A brick was laying two to three feet from his body. Wagner told the police that Vickery, Green and Talley had assaulted him, one of whom used a brick. There is no palpable factual dispute surrounding Wagner's injuries on the night of October 16, 2002.
Wagner's complaint contends JDS was negligent in failing to exercise reasonable care in discovering that negligent or intentional conduct was likely to occur; failing to exercise reasonable care to protect business invitees against harmful acts of third persons; failing to provide adequate security; failing to provide adequate staff; and failing to train its staff in handling altercations.
Wagner v. JDS Enterprises, LLC t/a Cedar Tavern, et al., Compl. ¶ 28.
At the time of this incident, JDS was covered by a commercial general liability insurance policy issued by Penn-Star Insurance Company ("Penn-Star"). The policy contains an assault and battery exclusion. The exclusion provides:
In consideration of the premium charged it is hereby understood and agreed that this policy will not provide coverage, meaning indemnification or defense costs for damages alleged or claimed for:
"Bodily Injury," "Property Damage," Personal Injury, Advertising Injury, Medical Payments or any other damages resulting from assault and battery or physical altercations that occur in, on, near or away from the insured's premises,
1) Whether or not caused by, at the instigation of, or with the direct or indirect involvement of the insured, the insured's employees, patrons or other persons in, on, near or away from the insured's premises, or
2) Whether or not caused by or arising out of the insured's failure to properly supervise or keep the insured's premises in a safe condition, or
3) Whether or not caused by or arising out of any insured's act or omission in connection with the prevention or suppression of the assault and battery or physical altercation, including, but not limited to, negligent hiring, training and/or supervision.
On September 28, 2004, Penn-Star filed this declaratory judgment action seeking an order determining its rights and obligations. Penn-Star contends that because of the assault and battery exclusion, it has no duty to defend the underlying action and is not subject to liability for a judgment against JDS.
STANDARD OF REVIEW
The court will grant summary judgment only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether there is a genuine issue of material fact, the evidence must be viewed in a light most favorable to the non-moving party.
Super. Ct. Civ. R. 56(c).
Guy v. Judicial Nominating Comm'n., 659 A.2d 777, 780 (Del.Super.Ct. 1995); Figgs v. Bellevue Holding Co., 652 A.2d 1084, 1087 (Del.Super.Ct. 1994); see also Moore v. Sizemore, 405 A.2d 679 (Del. 1979).
DISCUSSION
Penn-Star argues that the allegations in the underlying complaint make clear that the facts of the claim are within the scope of the assault and battery exclusion.JDS raises factual issues regarding the location and nature of the alleged altercation. JDS argues that there is an indication in discovered materials that Wagner was the victim of a criminal act, was assaulted outside of the excluded area defined in the insurance exclusion and that these potentially disputed matters prevent summary judgment.
Delaware Courts have addressed the insurance coverage question at issue here. Typically, Courts have found that if an insurance policy exclusion specifically bars coverage based on a particular act or omission and a complaint is premised on that excluded behavior, then the insurer will have no duty to defend or indemnify. As Penn-Star has acknowledged, an insurer's duty to defend is broader than the duty to indemnify; however, the duty to defend is limited to conduct for which the insurer has assumed liability under the policy agreement. In determining whether a third party's action against the insured states a claim covered by the policy, a court typically looks to the allegations set forth in the underlying complaint. The test is whether the complaint alleges a risk which is within the coverage of the particular policy. If there is any doubt as to whether the complaint alleges an insured risk, the doubt should be resolved in favor of the insured.
See Terra Nova Ins. Co., Ltd., v. Nanticoke Pines Ltd., 743 F.Supp. 293 (D.Del. 1990); Regis Ins. Co. v. Graves, 2005 WL 2732-39 (Del.Super.Ct.); Regis Ins. Co. v. Cosenza, 2001 WL 2381, 50 (Del.Super.Ct.).
Continental Cas. Co. v. Alexis I. DuPont Sch. Dist., 317 A.2d 101, 103 (Del.Super. 1974).
American Ins. Group v. Risk Enter. Mgmt., Ltd., 761 A.2d 826, 829 (D el. 2000).
Id., at 105.
The plain language of the Penn-Star's policy exclusion bars coverage for any claim which is based on an assault and battery. The exclusion specifically applies to "assault and battery or physical altercations that occur in, on, near or away from the insured's premises." The words "assault and battery" or "physical altercations" are unambiguous when applied to the allegations in the underlying complaint that plaintiff was "immediately and viciously assaulted." After viewing the underlying complaint, it is clear that the various grounds of negligence asserted by Wagner against JDS are based upon conduct that "helped make the assault possible, and are thus fundamentally premised on the assault itself."
Wagner Compl. ¶ 15.
Terra Nova, 743 F.Supp. at 297.
The factual issues raised by the plaintiff in the responsive brief are of no moment. The actual place of the assault does not change the analysis. Nor is it sufficient to argue that other evidence may be developed. A non-moving party "must come forward with admissible evidence" to defeat a summary judgment motion. If the moving party submits evidence that is "merely colorable, or is not significantly probative, summary judgment will be granted."
E.K. Geyser Co. v. Blue Rock Shopping Center, 229 A.2d 499, 501 (Del.Super. 1967).
Id.
There is no genuine issue of material fact. The plaintiff is entitled to judgment as a matter of law. Plaintiff's motion for summary judgment is GRANTED.
IT IS SO ORDERED.