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Allstate Insurance Co. v. Grimes11/8/2004
he subsequent care, or lack of care, provided their son after the assault. The pertinent allegations in the complaint stated that after employees of Planet Rock brought the victim back inside Planet Rock following the assault, they failed to call for medical assistance, that the victim died "without the benefit of medical assistance," and that upon being informed of the seriousness of the injuries, agents, servants or employees of Planet Rock "undertook the medical care of the injured Craig Williams . . . in a grossly negligent manner, failing or refusing to make available professional medical assistance which was available, thereby denying the deceased proper medical care ultimately leading to and proximately causing his death." Planet Rock, 6 S.W.3d at 486. Planet Rock notified its liability carrier, Regis Insurance Company, of the suit whereupon Regis denied coverage on the basis of an assault and battery exclusion in the policy. Regis's defense was premised on a combination of the assault and battery exclusionary clause with the chain of events defense. This court characterized Regis' defense as follows, "no matter what else happened, if there is an assault and battery that starts the chain of events, the bodily injury arises out of the assault and battery and therefore there is no coverage." Planet Rock, 6 S.W.3d at 491. (emphasis added).
The Regis policy provided coverage for bodily injury liability. In pertinent part the policy stated that Regis will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury to which this insurance applies, and Regis "shall have the . . . duty to defend any suit against the insured seeking damages on account of such bodily injury . . . , even if any of the allegations of the suit are groundless, false or fraudulent. . . . " Planet Rock, at 488. The policy defined bodily injury to include "Incidental Medical Malpractice Injury" which was defined as "injury arising out of the rendering of or failure to render, . . . the following services . . . medical, surgical, . . . or treatment. . . ."
The exclusion for "assault and battery" stated:
Actions and proceedings to recover damages for bodily injuries or property damage arising from the following are excluded from coverage and [Regis] is under no duty to defend or to indemnify an insured in any action or proceeding alleging such damages:
1. Assault and Battery or any act or omission in connection with the prevention or suppression of such acts; 2. Harmful or offensive contact between two or among two or more persons;
This exclusion applies regardless of the degree of culpability or intent and without regard to:
A. Whether the acts are alleged to be by or at the instruction or at the direction of the insured, his officers, employees, agents or servants; or by any other person lawfully or otherwise on, at or near the premises owned or occupied by the insured; or by any other person;
B. The alleged failure of the insured or his officers, employees, agents or servants in the hiring, supervision, retention or control of any person whether or not an officer, employee, agent or servant of the insured;
C. The alleged failure of the insured or his officers, employees, agents or servants to attempt to prevent, bar or halt any such conduct.
Planet Rock, 6 S.W.3d at 488-489.
Applying the court's reasoning in Watts, this court rejected the "no matter what else happens" defense in favor of the "concurrent cause doctrine." Planet Rock, 6 S.W.3d at 491-493, citing Watts, 811 S.W.2d at 887-888. Specifically, this court held that Regis provided c
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