Traub Lieberman Attorneys Eric D. Suben and Michael J. Fleming Obtain Summary Judgment For Insurer Under “Assault and Battery” Exclusion

The insured oyster bar tendered an underlying lawsuit for defense and coverage under a policy containing both CGL and Liquor Liability coverage parts. The underlying allegations were that plaintiff was severely injured after being assaulted at or near the premises by  an intoxicated individual who had been served there. The insurer denied coverage based on the respective “assault and battery” exclusions in the CGL and Liquor Liability coverage parts; and denied CGL coverage based on the applicable “absolute Liquor Liability ” exclusion.

The insured initiated a coverage action, disputing the grounds for the coverage disclaimer. Traub Lieberman Straus & Shrewsberry LLP attorneys Eric D. Suben and Michael J. Fleming moved to dismiss the complaint, arguing that that cited exclusions apply on their face to bar coverage based on the four corners of the underlying complaint. The insured opposed the motion on the basis that the allegations of the insured’s negligence were within the coverage grant notwithstanding the exclusions. TLSS argued in reply that the insured’s position is contrary to controlling New York case law, which holds that there is no coverage if there would be no claim “but for” the alleged assault and battery.

By order dated June 2, 2017, Justice Anthony L. Praga of New York Supreme Court, Nassau County, granted TLSS‘ motion in full, converting the motion to dismiss into a motion for summary judgment and dismissing all claims against the insurer.

Bracco’s Clam & Oyster Bar, Inc. v. RSUI Group, Inc., et al., Index No. 6887/16, N.Y. Sup. Ct., Nassau Co. (slip op. 6/2/17)