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Claims Practices

Pleading Can't Change a Battery into Negligence

Barry Zalma | July 21, 2017

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Bouncer throwing punch

Insurance companies don't want to insure a bar against assault and battery considering the frequency of barroom fights resulting in injuries to patrons or employees of the bar. When suits arise, some courts fall prey to the claim of a plaintiff that the assault or battery was negligence, finding that there is coverage. In response, insurers may provide coverage, but with a very small limit.

This was the case in Catlin Specialty Ins. Grp. v. RFB, Inc., Civil Action No. 2:16-3135-RMG, 2017 U.S. Dist. LEXIS 87874 (D.S.C. June 8, 2017). Defendant Jesse Bass alleged that, on December 6, 2012, Cedrick Price, a bouncer at a bar owned by defendant Frank Clyburn and defendant RFB, Inc. (together, "Henry's"), struck him with force sufficient to knock him unconscious and to inflict serious brain injury. Mr. Bass filed a federal lawsuit seeking damages, asserting a claim of negligence, alleging Henry's breached its duty to exercise reasonable care in the hiring, supervision, and retention of Elite Security.

The Insurance Coverage

Plaintiff Catlin Specialty Insurance Group issued a commercial general liability (CGL) policy to Henry's that was in effect at the time of the incident. Catlin defended Henry's in the underlying lawsuit, subject to a reservation of rights. The policy limit was $1 million per occurrence. The policy, however, contained an assault and battery endorsement that set a sublimit of $25,000 per occurrence.


Catlin sued, seeking a declaration that the assault and battery endorsement applied to Mr. Bass's claim against Henry's. The underlying litigation was stayed pending resolution of this action.

The sole question before the court was whether the CGL policy's assault and battery sublimit applied to the December 6, 2012, incident in which Mr. Bass was injured. The sublimit applied to claims for bodily injury arising from an assault and battery or out of any act or omission in connection with the prevention, suppression, or failure to protect or suppress such acts including the failure to warn, train, or supervise, whether caused by or at the instigation or direction of the insured, his employees, patrons, or other person.

In South Carolina, an assault is conduct that places another "in reasonable fear of bodily harm," and a battery is "the actual infliction of any unlawful, unauthorized violence on the person of another." Mr. Bass alleged that he was struck in the head, knocking him unconscious by Mr. Price. There is no genuine dispute that Mr. Bass's injuries arose from an assault and battery. Mr. Bass sued Henry's for negligence, not the intentional torts of assault and battery.

The court recognized that alleging negligence in a case where a patron was battered is a common pleading practice. Since insurers who insure bars are reluctant to insure the bar against liability for barroom fights or for the actions of bouncers. Plaintiffs often attempt to plead into coverage by asserting negligence—attempts federal and state courts routinely reject.

The court held that, although the injuries may have been caused by the negligent acts of the defendant, that does not necessarily mean that they did not arise out of an assault and/or battery. Plaintiffs cannot mischaracterize intentional acts as negligence claims in order to avoid the exclusions contained within the insurance policy. Even if Henry's was negligent, and even if that negligence proximately caused Mr. Bass's injuries, Mr. Bass's injury nonetheless arose out of a battery, per the court. Mr. Bass could not avoid a policy sublimit by mischaracterizing Mr. Price's admittedly intentional act as negligence.

The court went on to say that, if a sublimit for injuries arising from an assault and battery does not apply to punching a man in the head intentionally during a fight at a bar, then it is difficult to imagine when it would ever apply. Mr. Bass argued that "assault and battery" were ambiguous because the insurance policy did not define those terms. The court found that argument without merit. The terms assault and battery are well defined under South Carolina law, and Mr. Bass apparently agreed with Catlin about the definition of those terms.

Mr. Bass also argued that there was a question of disputed material fact about whether Mr. Bass's injuries arose from a battery. If Mr. Bass alleges Mr. Price acted in a lawful, legally authorized manner when he struck Mr. Bass, then he breached no duty owed Mr. Bass, and neither Mr. Price nor his employer was liable for the resulting injury to Mr. Bass. If Mr. Bass did not allege that Mr. Price acted lawfully, then there is no factual dispute.

Moreover, in the underlying litigation, Mr. Bass alleged that Mr. Price acted unlawfully, alleging Mr. Price's actions were "done with reckless disregard for Plaintiff's rights." Mr. Bass was, therefore, estopped from arguing the opposite position in this coverage litigation.

Henry's argued that summary judgment should be denied because it was not "adequately notified" of the assault and battery sublimit. Henry's did not argue that it did not have actual notice of the policy limitation. Rather, Henry's argued it was not "notified" that an assault and battery limitation on coverage could apply to claims arising from an assault and battery, even if those claims were artfully pleaded as negligence. That argument is, of course, without merit, according to the court.

The court, following the law, granted the plaintiff's motion for summary judgment and concluded that, under the assault and battery endorsement of the CGL policy, Catlin Specialty Insurance Company was not obligated to indemnify RFB, Inc., and Frank Clyburn for any amount above $25,000 with respect to the claims.


It seems injured plaintiffs need to try to make an assault and battery into a negligence action to gain the defendants insurance coverage that was neither sought, provided, nor available. The injured person should be pleased that the bar purchased a policy from Caitlin that provided $25,000 worth of coverage for a battery rather than nothing at all.

© 2017 Barry Zalma, Esq., CFE

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