Battery Does Not Require Body-To-Body Contact

Mount Vernon Fire Insurance Corporation v. Oxnard Hospitality Enterprises, Inc.
(Cal. Ct. of App., 2d Dist.), filed September 16, 2013, published September 16, 2013

KEY FACTS

Roberta Busby worked for Oxnard Hospitality Enterprises, Inc. as a nightclub dancer. A customer threw a glass full of a flammable liquid on her and set her on fire. As a result, she sued Oxnard Hospitality and others for damages for their alleged negligent failure to provide security.

At the time, Oxnard Hospitality was insured under a liability insurance policy issued by Mount Vernon Fire Insurance Corporation. The policy contained an “Assault or Battery” endorsement that excluded coverage for “all ‘bodily injury’…arising out of ‘assault’ or ‘battery’…including but not limited to ‘assault’ or ‘battery’ arising out of or caused in whole or in part by negligence…‘Battery’ means negligent or intentional wrongful physical contact with another without consent that results in physical or emotional injury.”

Mount Vernon filed a declaratory relief action in which it sought a declaration that it had no duty to indemnify Oxnard Hospitality.

Busby’s action against Oxnard was resolved by a stipulated judgment against Oxnard for $10 million. Oxnard assigned all of its rights against Mount Vernon to Busby.

Mount Vernon filed a motion for summary judgment against Busby in its declaratory relief action. The trial court granted its motion finding that the policy did not call for Mount Vernon to pay the judgment.

HOLDING & REASONING

The Court of Appeal affirmed, finding that the assault & battery exclusion barred coverage.

The court rejected Busby’s contention that Mount Vernon’s liability policy covered her judgment against Oxnard Hospitality because it defined battery as “physical contact” which in turn required direct body-to-body contact. Citing the Restatement Second of Torts, the court noted that the tort of battery generally is not limited to direct body-to-body contact. Cases in which a tortfeasor touched the plaintiff with an instrument hold that there has been a battery.

ANALYSIS

Assault and battery exclusions are increasingly common in liability policies. Depending on the particular wording, courts often apply the exclusions, even when the insured does not directly assault anyone.