Bar brawl breeds bad blood
On July 14, 2014, Maurice Beaulieu filed a civil lawsuit seeking compensatory damages, interest, and costs from Barnie’s Bar & Grill for its alleged negligence. Beaulieu alleged that he “was violently attacked by a group of [other] patrons” while he “was a customer, licensee and invitee” at the bar. He asserted that Barnie’s Bar was liable for the attack for two reasons. First, he contended that, although it “had general and specific notice of the risk that an assault was imminent,” the bar breached its duty of care to prevent or interfere with the assault by “failing to summon law enforcement and otherwise failing to interfere with the assault and battery.” Second, Beaulieu claimed that Barnie’s Bar breached its duty of care “not to create a dangerous circumstance on its premises” by “affirmatively ejecting” him and his assailants into the parking lot at the same time.
Barnie’s Bar was insured under a policy from United States Liability Insurance Company (USLIC) that included both commercial general liability and liquor liability coverage. Both coverage portions contained comprehensive exclusions for assault and battery. The commercial general liability coverage, in relevant part, excluded:
Any claim, demand or “suit” based upon any actual or alleged “assault” or “battery”, or out of any act or omission in connection with the prevention or suppression of any “assault” or “battery” … whether caused by or at the instigation or direction of an insured, its “employees”, agents, officers or directors, patrons or any other person. Further, no coverage is provided for any claim, demand or “suit” in which the underlying operative facts constitute “assault” or “battery.”
This exclusion applies to all “bodily injury,” “property damage” or “personal and advertising injury” sustained by any person, including emotional distress and mental anguish, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving “assault” or “battery” whether alleged, threatened or actual including but not limited to “assault” or “battery” arising out of or caused in whole or in part by negligence or other wrongdoing with respect to:
….
b. investigating or reporting any “assault” or “battery” to the proper authorities; or
c. the failure to so report or the failure to protect any person while that person was in the care, custody or control of the insured, its “employees,” agents, officers or directors;
….
The assault and battery exclusion in the liquor liability portion of the policy was similarly comprehensive.
USLIC declined to defend Barnie’s Bar, relying on the exclusions for assault and battery. Barnie’s then sought a declaratory judgment that USLIC had a duty to defend it in the Beaulieu litigation and sought damages for breach of contract. Barnie’s Bar and USLIC filed cross-motions for summary judgment on a joint stipulated record. Concluding that USLIC had no contractual duty to defend Barnie’s Bar, the court granted USLIC’s motion and denied Barnie’s Bar’s motion for summary judgment. Barnie’s Bar appealed.
On appeal, the court applied the comparison test to determine whether USLIC had a contractual duty to defend Barnie’s Bar. The comparison test involves comparing the allegations in the underlying complaint with the terms of the applicable policy to determine whether the complaint falls within the policy’s coverage.
In applying the comparison test, the court noted that the policy’s exclusions were so broadly written and the Beaulieu complaint so narrowly drafted that “there are simply no intersections between the policy and the complaint in which to find coverage.” The court therefore concluded that, because the allegations of the complaint fell squarely within the exclusions for assault and battery, USLIC was not obligated to defend Barnie’s Bar in the Beaulieu litigation.
Barnie’s Bar & Grill, Inc., vs. United States Liability Insurance Company-Supreme Judicial Court of Maine-December 20, 2016- Docket: And–16–76.
