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Intentional Tortious Act Is An Assault And Battery

August 31, 2011

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In QBE Inc. Corp. v. Jinx-Proof, Inc., the Supreme Court, New York County had to determine whether a complaint alleging both negligence and intentional acts regarding the throwing of a glass into the underlying plaintiff’s face was an assault and battery. QBE issued a general liability policy to Jinx-Proof. Jinx-Proof operated bar where an altercation arose between the underlying plaintiff and a security guard/bouncer. The security guard allegedly threw a glass in the underlying plaintiff’s face, causing injuries. QBE then brought a declaratory judgment action alleging coverage was excluded due to the assault and battery exclusion.
The court noted that, while negligence was alleged by the underlying plaintiff, the cause of action was rooted in intentional tortuous behavior. “The pleadings clearly demonstrate that the main act, which would give rise to any recovery, is [the security guard’s] alleged intentional throwing of a glass object. The possibility that the insured may be found liable under a theory of negligence does not overcome the policy’s assault and battery exclusion and any injury resulting from such acts.” The court granted QBE summary judgment that it did not owe a duty to defend or indemnify its insured.
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