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Peck v. Alliance General Insurance Co.6/8/1999
Plaintiff filed an equitable garnishment action against defendant pursuant to Section 379.200 RSMo (1994) to recover a $400,000 judgment awarded to plaintiff for bodily injury against defendant's insureds in a negligence action. The trial court granted plaintiff's motion for summary judgment on the ground that the policy covered damages for bodily injury which was not excluded by the assault and battery exclusion attached to the policy because the exclusion was ambiguous. Defendant appeals. We affirm the entry of summary judgment in plaintiff's favor, but on the ground that plaintiff's motion for summary judgment stated facts which showed that the exclusion did not apply as a matter of law and defendant's response to that motion did not set out facts showing a disputed fact issue on the applicability of the exclusion.
In January, 1993 plaintiff, Michael Peck, was injured after being escorted out of Lynn Dickey's Sports Bar (insured) by Hoyt Gregory, Jr., the insured's security officer. Plaintiff subsequently obtained a consent judgment in his favor for $400,000 pursuant to a settlement agreement with Gregory which provided that plaintiff could only collect the award from defendant or any other liability insurer for insured. Plaintiff also obtained a default judgment in his favor against insured for $400,000. Thereafter, plaintiff filed a petition for an equitable garnishment against defendant, Alliance General Insurance Company, pursuant to Section 379.200 RSMo (1994), the equitable garnishment statute, to satisfy the $400,000 judgment under its Commercial General Liability insurance policy, No. AMP9001497, (hereinafter "the policy") effective from April 17, 1992 to March 15, 1993. In lieu of a response, defendant moved for summary judgment in its favor on the ground that the assault and battery exclusion in the insurance policy excluded coverage of the incident.
Plaintiff responded to the motion and also filed a motion for summary judgment in his favor on the grounds that the policy obligated defendant to pay damages for bodily injury and personal injury that occurred on the premises at the time of plaintiff's injury and that his underlying lawsuit was based on negligence, not assault and battery. In his motion for summary judgment plaintiff stated, with references to the record and his affidavit, that the injury occurred in the following manner: He arrived at insured's premises at approximately 1:30 a.m., approached the disc jockey, suggested that the disc jockey change the type of music that was playing, and, as he started to reach for the music equipment, he was touched by Gregory and two other doormen who escorted him out of the establishment. Gregory held plaintiff's arms and hands above his head, escorted him outside, and released him. Plaintiff referred to Gregory's deposition in which he denied ever throwing any customer to the pavement. Plaintiff also referred to the deposition of Robert Farrow, another of insured's employees, who testified that he saw Gregory escort plaintiff out of the club while holding him in a "full nelson" and saw plaintiff fall to the pavement after being released. Farrow further testified that he did not think it was possible that Gregory shoved plaintiff because Farrow was watching them and did not see Gregory shove or push plaintiff.
In its unverified response to plaintiff's motion, defendant denied that plaintiff's injuries were "personal injury" as defined by the policy and asserted that plaintiff's bodily injuries were excluded under the assault and battery exclusion. It denied other statements as well as all the averments plaintiff made in his affidavit and asserted that Farrow's and Gregory's testimony, as reported in the motion, wer
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