Opinion
C.A. No. OOC-05-006 JTV.
Submitted: October 27, 2000.
Decided: January 31, 2001.
Upon Consideration of Plaintiff's Motion For Summary Judgment GRANTED
Marc S. Casarino, Esq., Wilmington, Delaware, Attorney for Plaintiff.
Wayne Elliott, Esq., Dover, Delaware, Attorney for Defendant Cosenza.
Randy J. Jones, Smyrna, Delaware. Pro Se.
CMC, Inc., Dover, Delaware. Pro Se.
ORDER
Upon consideration of the plaintiffs motion for summary judgment, the response of defendant Cosenza, and the record of this case, it appears that:
1. This is a declaratory judgment in which the plaintiff, Regis Insurance Company ("Regis"), seeks a determination that it does not have a duty to defend a certain personal injury action currently pending in this Court or liability coverage for that injury action under an insurance policy issued to defendant CMC, Inc. t/a Froggy's Bar and Grille ("Froggy's").
2. The underlying personal injury action is one brought by Alexander Cosenza ("Cosenza") against Froggy's Bar and Grille and Randy J. Jones ("Jones"). The complaint in the underlying action alleges that on January 21, 1999, when Cosenza was a patron at Froggy's, "Randy J. Jones and/or other patrons who had recently departed the establishment appeared and viciously and savagely beat Alexander Cosenza about both the head and torso, knocking him unconscious and causing severe bodily injury." The complaint alleges that the incident occurred in Froggy's parking lot. It alleges five grounds for liability, to-wit: (a) Froggy's negligent failure to provide adequate security to insure the safety of its patrons; (b) Froggy's failure in its duty as an innkeeper to protect Cosenza from harmful acts of third persons; (c) Froggy's negligent failure to check or verify that underage patrons were legally permitted to drink alcoholic beverages in the State of Delaware; (d) Froggy's negligent failure to properly control patrons who were known to harass, intimidate and assault other patrons on the premises; and (e) Froggy's negligent failure to refrain from serving alcohol to visibly intoxicated persons.
3. Regis issued a policy of multi-peril general liability insurance to Froggy's effective February 18, 1998 through February 18, 1999, thus covering the period during which the alleged assault on Cosenza took place. The policy, however, has two exclusions relevant to this motion. One is an exclusion providing that Regis has:
no duty to defend or to indemnify an insured in any action or proceeding alleging . . . [a]ssault and [b]attery or any act or omission in connection with the prevention, suppression or results of such acts; or . . . [h]armful or offensive contact between or among two or more persons; or . . . [a]pprehension of harmful or offensive contact between or among two or more persons; or . . . [t]hreats by word or deeds.
The other exclusion provides that the policy does not apply:
to bodily injury or property damage for which the insured or his indemnitee may be held liable . . . as a person or organization engaged in the business of manufacturing, distributing, selling or serving alcoholic beverages, or . . . if not so engaged, as an owner or lessor of premises used for such purposes, if such liability is imposed . . . by, or because of the violation of, any statute, ordinance, or regulation pertaining to the sale, gift, distribution or use of any alcoholic beverage, or . . . by reason of the selling, serving or giving of any alcoholic beverage to a minor or to a person under the influence of alcohol or which causes or contributes to the intoxication of such person . . .
Regis contends that because of these two exclusions, it has no duty to defend the underlying action and no liability for any judgment that may be entered against Froggy's.
4. Cosenza contends in response that the allegations he makes are broad enough to allow for liability to be imposed on Froggy's for its own negligence even if Jones and another alleged assailant are not found liable for assault. It further contends that the policy does not define "Assault and Battery," which can be interpreted differently depending on whether it refers to a criminal or civil assault and battery, or whether it has some broader meaning; that a factual issue exists concerning whether Jones and another alleged assailant were on the premises "lawfully or otherwise" within the meaning of the Assault and Battery exclusion; that the liquor liability exclusion does not appear on Form L6395a (Ed. 1-73) attached as part of Exhibit B on plaintiffs motion; that any ambiguity or doubt about coverage must be resolved against the insurer; that there is ambiguity; that as a general rule, negligence issues are not susceptible to summary adjudication; and that for these reasons the motion should be denied.
5. Summary judgment is appropriate if, after viewing the record in the light most favorable to the non-moving party, the court finds no genuine issue of material fact. However, if from the evidence produced, there is a reasonable indication that a material fact is in dispute or if it seems desirable to inquiry more thoroughly into the facts in order to clarify the application of the law, summary judgment will not be granted. When the facts permit a reasonable person to draw but one inference, the question becomes one for decision on summary judgment. If an examination of the record reveals no genuine issue as to material facts, it is incumbent upon the court to grant summary judgment. If the basic facts are not in dispute and point to only one justifiable conclusion, summary judgment is appropriate. In discharging this function, the court must view the evidence in the light most favorable to the nonmoving party. In so doing, the court will accept as established all undisputed factual assertions made by either party, and accept the non-movant's version of any disputed facts.
Guy v. Judicial Nominating Comm'n, Del. Super., 659 A.2d 777, 780 (1995); Figgs v. Bellevue Holding Co., Del. Super., 652 A.2d 1084, 1087 (1994).
Ebersole v. Lowengrub, Del. Supr., 180 A.2d 467, 470 (1962), rev'd in part and aff'd in part, 208 A.2d 495 (1965).
Frelick v. Homeopathic Hosp. Ass'n, Del. Super., 150 A.2d 17 (1959); Wotten v. Kiger, Del. Supr., 226 A.2d 238 (1967).
E.K Geyser Co. v. Blue Rock Shopping Ctr., Inc., Del. Super., 229 A.2d 499 (1967).
489.137 Square Feet of Land v. State ex rel. Price, Del. Supr., 259 A.2d 378 (1969).
Merrill v. Crothall-American, Inc., Del. Supr., 606 A.2d 96, 99-100 (1992).
6. When considering whether an insurer has a duty to defend, certain well established principles apply. The insurer's duty to defend is limited to actions which assert claims for which it has assumed liability under the policy. The duty to defend, however, is broader than the liability coverage as the liability coverage is based on actual liability whereas the duty to defend is based upon the allegations of the complaint Where there is some doubt as to whether the complaint alleges an insured risk, the doubt should be resolved in favor of the insured; any ambiguity in the pleadings should be resolved against the insurer; and the duty to defend arises if even one count or theory of the plaintiffs case lies within the coverage of the policy. Any ambiguity in the policy will be construed against the insurer.
Continental Cas. Co. v. Alexis I. DuPont School District, Del. Supr., 317 A.2d 101, 103 (1974).
First Oak Brook Corporation Syndicate v. Comly Holding Corporation, 3rd Cir., 93 F.3d 92 (1996); St. Anthony's Club v. Scottsdale Insurance Company, Del. Super., 97C-07-1 12, Herlihy, J. (Mem. Op.) (Jul. 15, 1998).
Id. at 105.
Penn Mut. Life Ins. Co. v. Oglesby, Del. Super., 695 A.2d 1146, 1149-50 (1997).
7. In the case of Terra Nova Insurance Company, Ltd. v. Nanticoke Pines, Ltd., "a plaintiff sustained injuries outside a tavern operated by Nanticoke Pines when he was shot by a security officer employed by Nanticoke. The plaintiff alleged that Nanticoke was negligent in various ways. For example, the plaintiff alleged that Nanticoke was negligent in its hiring of the security guard, negligent in supervising him, negligent in failing to provide adequate security for patrons, negligent in failing to prevent or stop the incident from occurring, and negligent in serving alcohol to its security officer. Nanticoke's insurance policy included an exclusion for assault and battery. The court held that the exclusion was applicable to the plaintiffs claim because the claim was based on an assault and that the various grounds of negligence asserted against Nanticoke were based on conduct which helped make the assault possible, and, therefore, were fundamentally premised on the assault itself. The fact that the assailant in that case was an employee of the tavern rather than a patron is not a grounds for distinguishing the case and, if anything, strengthens Regis' argument here. I find the court's reasoning in that case persuasive and I conclude that it leads to the same result in this case as to all grounds of negligence asserted against Froggy's. The various grounds of negligence asserted against Froggy's here are based upon conduct "that helped make the assault possible, and are thus fundamentally premised on the assault itself." There is no ambiguity in the words "assault and battery" or "harmful or offensive contact" as applied to this case where the complaint in the underlying action alleges that the plaintiff was "intentionally assaulted and viciously and savagely beat . . . about the head and torso." There is no material issue of fact concerning whether Jones and the other alleged assailant were on Froggy's premises "lawfully or otherwise." The complaint alleges that the plaintiff had parked in Froggy's parking lot and was on his way from the tavern to his car when the alleged assault occurred. The exclusion applies regardless of whether the incident occurred at or merely near Froggy's premises and whether the assailants' presence in or near the parking lot was lawful or other than lawful.
D. Del., 743 F. Supp. 293 (1990).
Id. at 297.
See also First Oak Brook Corporation Syndicate v. Comly Holding Corporation, 3rd Cir., 93 F.3d 92 (1996) for a case involving exclusion language which appears to be identical to the language involved here.
8. As to the liquor liability exclusion, it does not seem to appear in the copy of the policy attached to the motion, but it does appear as (h) in the exclusions in the copy of the policy attached to the complaint in this case, the difference seeming to be a photocopying error in the copy attached to the motion. I find that this exclusion applies to those counts which are based upon the sale of alcoholic beverages.
9. I therefore conclude that there is no genuine issue as to any material fact and that the plaintiff is entitled to judgment as a matter of law. The plaintiffs motion for summary judgment is granted .
IT IS SO ORDERED.
/s/_____________________________ Resident Judge