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Regis Insurance Co. v. Graves1/28/2005
Regis Insurance Company ("Regis") moves for Summary Judgment in this Declaratory Judgment action. It seeks an order adjudging that it has no duty to defend or indemnify its insured, CMC, Inc. t/a Froggy's Bar & Grille ("Froggy's") in an underlying tort action, Graves v. CMC, Inc. t/a Froggy's Bar & Grill.
I. FACTS
At approximately 12:15 a.m. on August 31, 2002, Joshua Graves, the plaintiff in the underlying action (a defendant in this action), was in the area of a fight between two other individuals just outside of Froggy's Bar & Grill. Graves was allegedly injured when a bouncer intervened in the fight. Graves filed a personal injury action against Froggy's on February 2, 2004.
The complaint filed by Graves avers several counts based on theories of negligence and assault and battery. He contends that Froggy's was negligent through its employee, the bouncer, who allegedly attacked Graves; used unreasonable and excessive force against Graves; used force against Graves when no force was warranted; did not use reasonable care to prevent reasonably forseeable violent acts on the premises and incorrectly determined that Graves was involved in the fight. The complaint also alleges that Froggy's was negligent in the manner in which it hired, trained and supervised its bouncers, and negligent in failing to provide reasonable security for its patrons. Finally, the complaint alleges that Froggy's is vicariously liable on a theory of assault and battery for the intentional and/or reckless actions of its bouncer in that Froggy's bouncer, intentionally and without Graves' consent, caused Graves to be in fear of immediate harmful or offensive contact and made contact with Graves in a harmful or offensive way.
Regis issued a general liability insurance policy to Froggy's effective February 18, 2002 to February 18, 2003. Froggy's has notified Regis of the action commenced by Graves and seeks coverage for the lawsuit under the policy. The policy contains an assault and battery exclusion. Its applicability is determinative in this dispute. The exclusion provides that Regis has: no duty to defend or to indemnify an insured in any action or proceeding alleging . . . Assault and Battery or any act or omission in connection with the prevention, suppression or results of such acts . . . harmful or offensive contact between or among two or more persons . . . apprehension of harmful or offensive contact between or among two or more persons; or . . . threats by words or deeds.
This exclusion applies regardless of the degree of culpability or intent and without regard to . . . the alleged failure of the insured . . . in the hiring, supervision, retention or control of any person, whether or not an officer, employee, agent or servant of the insured . . . the alleged failure of the insured or his officers, employees, agents or servants to attempt to prevent, bar or halt such conduct . . . .
Regis has accepted notice of the claim and has thus far defended Froggy's in the underlying action under a full reservation of rights. As mentioned, in this action Regis seeks a determination that it owes no duty to defend or indemnify Froggy's in the underlying action.
II. PARTIES CONTENTIONS
Regis argues that the insurance policy clearly and unambiguously excludes coverage for assault and battery claims and all allegations in the underlying complaint arise from the alleged assault and battery. It cites Terra Nova Ins. Co., Ltd. v. Nanticoke Pines, Ltd. and Regis Ins. Co. v. Cosenza as controlling.
Graves argues that the insurance company is required to defend on its claims of negligence. While Graves acknowledges t
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