Wade Clark Mulcahy LLP

<p style="text-align: justify;">Quanisha Simmons commenced a personal injury action against Blvd Bar &amp; Lounge nightclub, located in Westchester County, New York, when she slipped and fell on a puddle of spilled drinks, which was on the floor due to “a melee which erupted within and without the club.” Simmons testified that she was pushed, shoved, and trapped in the bar at her deposition, and when she took a step toward the exit, she fell and allegedly injured her left knee due to a wet floor caused due to the spillage of alcoholic beverages.</p>
<p style="text-align: justify;">Blvd Bar’s landlord, <em><a href="https://www.wcmlaw.com/wp-content/uploads/2021/01/CS-Franklin-Realty.pdf">C&amp;S Franklin Realty</a>,</em> filed a declaratory judgment in Bronx Supreme Court, against Blvd Bar’s insurer, United States Liability Insurance Company after USLIC disclaimed coverage to them on the assault and battery exclusion. In their complaint, C&amp;S states USLIC issued a Comprehensive General Liability policy to Blvd, naming C&amp;S as an additional insured per the lease executed between C&amp;S and tenant Blvd Bar. C&amp;S demanded that USLIC assume its defense in the underlying action by Simmons and provide indemnification.</p>
<p style="text-align: justify;">USLIC moved for summary judgment based upon the assault and battery exclusion precluding coverage both for suits “based upon any actual or alleged ‘assault’ or ‘battery’ stating “since a melee qualifies as an “assault” and/or battery as defined in the policy, the policy does not provide coverage for any and all claims of bodily injury that result from such an event.”  In response, C&amp;S argued that the exclusion did not apply because the tenant’s negligence allegedly caused the bodily injury in connection with the spillage on the floor, not an assault or battery.</p>
<p style="text-align: justify;">The Bronx Court applied a “but-for” test and held that coverage did not exist because the accident would not have occurred “but for” the melee in the nightclub (i.e., an assault or battery) which caused a puddle of spilled drinks.  The court explained that the plain language of the exclusion applied because the pleadings were “based upon” an assault or battery and the bodily injury “involved” an assault or battery.</p>
<p style="text-align: justify;">Thanks to Irving Fayman for his contribution to this post.  Please contact <a href="mailto:tbracken@wcmlaw.com">Thomas Bracken</a> for more information.</p>