TLSS Partner Brian Bassett Obtains Summary Judgment In Coverage Dispute Addressing Assault/Battery Exclusion

Traub Lieberman’s client, the primary insurer of a tavern, sought declaratory judgment that it owed no duty to defend or indemnify its insured in two underlying lawsuits. The two lawsuits arose from a shooting that killed one and injured four others. The lawsuits were brought by one of the injured individuals, and the family of the deceased alleging wrongful death. The complaints alleged that the bar violated the Dram Shop Act and negligently and carelessly allowed an individual with a dangerous weapon on the premises, hired improperly trained security guards, and permitted intoxicated, violent, argumentative, and/or aggressive individuals back on the premises. The lawsuits also allege the bar knew their concerts attracted people prone to violence that were sometimes armed, and that the performers encouraged violence among the patrons.

Traub Lieberman partner Brian Bassett moved for summary judgment in the declaratory judgment action, arguing that the “Assault And/Or Battery Exclusion” in the insurance policy precluded a duty to defend. The Exclusion states that no duty to defend or indemnify exists in assault or battery cases by insured or any other persons. The Exclusion is broad and applied to all of the claims against the insured, even those that concerned the negligent provision of security. Mr. Bassett relied on Atain Specialty Ins. Co. v. Chouteau Prop. Mgmt, Inc., 2017 WL 1759060, at *3-4 (S.D. Ill. May 2, 2014), where a restaurant with a similar assault/battery exclusion in its insurance policy was not covered when a patron killed and injured other patrons. The court agreed, finding Atain to be instructive.

The insured opposed the motion, relying on American Family Mut. Ins. Co. v. Enright, 781 N.E.2d 394 (Ill. App. Ct. 2002). Enright involved an insured’s own negligent conduct. Mr. Bassett argued that Enright was distinguishable, because the conduct at issue was by a third party. The court agreed and found the insurer’s exclusion broader than in Enright and covering conduct by “any other persons.”

The court granted Traub Lieberman’s motion for summary judgment and declared the insurer did not have a duty to defend or indemnify the insured in the underlying lawsuits.

Maxum Indemnity Co. v. Towne Pub Inc., et al, Case No. 17-CV-2211 (C.D. Ill. July 9, 2018).

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