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A & B Exclusion Prevails Over Negligence Claim (PA)

September 29, 2016

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Smart plaintiffs' attorneys routinely plead negligence against a commercial enterprise for injuries arising out of an assault. The strategy is commonly employed to bring claims, that would otherwise excluded within the realm of the business’s insurance coverage.
In <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2016/09/161151.pdf">QBE Insurance Corp v. Walters</a>, </em>a café’s insurer sought declaratory judgment that its assault and battery exclusion applied to a claim arising from a shooting in the Jazzland café parking lot. In his underlying complaint, Walters, alleged negligence against Jazzland claiming that the café was located in a high crime neighborhood and that patrons regularly brought firearms into the establishment.  The plaintiff claimed that the café, with knowledge of these facts, was negligent in failing to prevent his injuries.
Jazzland sought defense and indemnity from its insurer, QBE, for the lawsuit. QBE filed a declaratory judgment action, arguing that the policy’s “assault and battery” exclusion barred coverage for the incident. The trial court granted summary judgment to QBE, to which Jazzland and Walters appealed, arguing on appeal that the language of the complaint sounded in negligence as a direct cause of Walters’ injury, thus the assault and battery exclusion was inapplicable to these claims.
The Superior Court of Pennsylvania ruled that the trial court properly granted summary judgment in favor of QBE in the declaratory judgment action and that the assault and battery exclusion barred coverage for Walters’ claim. Notably, the A &amp; B exclusion contained a comprehensive definition of “assault and battery” which placed any negligent conduct on behalf of the insured and their employee’s in connection to an A&amp;B squarely within the realm of the exclusion. Specifically, QBE’s A&amp;B exclusion stated that it applied regardless of degree of culpability with regard to allegations of negligent hiring, training of employees and failure to prevent a claimant’s harm. Furthermore, the definition of A&amp;B under the policy expressly included the negligent employment, investigation, supervision, training and retention of any employees and any insured or employees’ failure to prevent harm.
Based upon the policy’s plain language, the Court found that the exclusion was unambiguous in its intent to exclude any alleged negligence arising out of an assault and battery. Given the Superior Court’s interpretation of the policy at issue, insurers operating in the Commonwealth of Pennsylvania should be advised of the language used in in this case by QBE that encompasses claims that could potentially be disguised as negligence claims.
Thanks to Sathima Jones for her contribution.
For more information, contact Denise Fontana Ricci at <a href="mailto:dricci@wcmlaw.com"><u>dricci@wcmlaw.com</u></a>.

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