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Proshee v. Shree2/2/2005
4 Cir. 12/17/97), 703 So.2d 1378, writ denied 98-0173 (La. 03/20/98), 715 So.2d 1214, where the plaintiff was injured after being caught in the cross-fire between the bar owner and unknown robbers. The insurer moved for summary judgment based on the assault or battery exclusion in its policy. Plaintiff argued that her injuries arose out of a robbery rather than an assault or battery. The trial court agreed and denied the insurer's motion. The fourth circuit, however, reversed and granted summary judgment in favor of the insurer based on the finding that the plaintiff's injuries constituted a battery, even though committed in the course of a robbery. The fourth circuit explained it by saying, " imply put, the respondent was injured by a battery -- no battery, no injuries."
The final issue in this case is whether Century has a duty to defend Shree. In brief, counsel for Shree alleges that Century owes defense and indemnity to Shree. However, this issue is not specifically briefed and is merely raised in a conclusory statement in the "Issues on Appeal" section of Shree's brief which states that if the exclusions are inapplicable, then Century owes defense and indemnity.
Insofar as the judgment dismisses Shree's claims against Century, this is correct. Although the insurer's duty to defend is broader than its liability for damages, Century had no duty to defend in this case because of the Special Exclusions and Limitations Endorsements section dealing with failure to maintain safe or secure premises and Section 2 of the Assault and Battery Exclusion. In Guidry v. Deny, 95-2115 (La. App. 4 Cir. 03/14/96), 671 So.2d 979, plaintiff sued the individual who allegedly attacked him (Deny) and the property owner of the place where the attack took place for failing to prevent the attack and for their lack of security. The fourth circuit found that all of plaintiff's injuries, according to his own petition, arose out of Deny's acts of assault and battery and that the assault and battery exclusion applied such that there was no duty to defend. Such is the case here: all of the damages claimed by plaintiff in his petition arise out of the alleged assault and battery and even though he alleges he was robbed in the petition, he does not specify what property was stolen and does not list anything with respect to the robbery in the paragraphs of the petition concerning injuries and expenses incurred.
Decree
For the foregoing reasons, the judgment of the trial court granting summary judgment to Century Surety Company is affirmed with all costs of this appeal to be divided equally between both appellants.
AFFIRMED.
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