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Sergeant v. Erpelding9/27/2000
Appeal from the Iowa District Court for Kossuth County, Patrick M. Carr, Judge.
Sergeant, the trustee in bankruptcy for an individual injured in an assault at a tavern and his wife, appeals following the grant of summary judgment in favor of the tavern's liability insurance carrier. AFFIRMED.
I. Background Facts and Proceedings.
Sergeant's claim against Capitol Indemnity Corporation (Capitol) originated in a lawsuit Michelle and Troy Peterson (Petersons) brought against the Jukebox tavern and its owners, Gary and Paula Erpelding (collectively the Jukebox). Petersons sued the Jukebox for personal injury and property damage sustained when they were assaulted by an unidentified patron of the Jukebox. Under Petersons' property damage theory, the Jukebox negligently failed to restrain and identify their assailants resulting in the loss of any personal injury claim the Petersons could bring against their assailants.
Capitol, the general liability carrier for the Jukebox, declined coverage for Petersons' claim citing the assault and battery exclusion of its policy insuring the Jukebox. As a result, the Jukebox sued Capitol for breach of contract and tort damages in a third-party petition filed as part of the Petersons' lawsuit. After reaching a settlement with the Petersons, the Jukebox assigned any claims against Capitol to Sergeant, the Petersons' bankruptcy trustee.
Capitol moved for summary judgment citing the following policy language:
This insurance does not apply to bodily injury , property damage or personal injury arising out of assault, battery, or assault and battery. This exclusion applies to all coverages under this coverage part.
Definitions:
1. Assault - A willful attempt or offer with force or violence to harm or hurt a person without the actual doing of the harm or hurt.
2. Battery - Any battering or beating inflicted on a person without his or her consent.
3. Assault and Battery - For purposes of this insurance, this term includes assault and battery, and specifically includes the ejection or exclusion with force or violence, or attempt thereof, of any person from the premises by the insured and his/her/its employees or agents.
Sergeant resisted Capitol's motion claiming the exclusion did not apply. Sergeant argued the Petersons' property damage was caused by negligence independent of the underlying assault and consequently was not property damage "arising out of assault." The district court rejected Sergeant's claim and entered summary judgment, dismissing his breach of contract claim against Capitol.
On appeal the Petersons argue the district court erred in holding that "an assault and battery" exclusion in a liability policy precludes recovery for property damages proximately caused by acts and omissions subsequent to and independent of the assault and battery. The Petersons also contend the district court erred by declining to hold that an innkeeper has a common-law duty to protect their guests' property.
II. Standard of Review.
Our review of a grant or denial of summary judgment is at law. Hill v. McCartney, 590 N.W.2d 52, 55 (Iowa App. 1998). Summary judgment is only appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Id. We review the record in the light most favorable to the party opposing summary judgment as we would a motion for directed verdict. Smith v. CRST Int'l, Inc., 553 N.W.2d 890, 893 (Iowa 1996). Under this standard, summary judgment is inappropriate if reasonable minds would differ on how the issue should be resolved. Dic
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