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Exclusion of assaults and batteries applies regardless of the number of reasons for action and theories



When a document from a bar manager sent a customer violently down a flight of stairs to his death and the manager pleaded guilty to murder, it is impossible to consider the documents as unintentional. It should not matter how many legal causes the heirs claimed for either intentional or negligent damages. Insurance, by definition, only insures against unintentional events that are conditional or unintentional. Op 05319, 242.1 CA 19-01879, Supreme Court of the State of New York Appellate Division, Fourth Legal Division (October 2, 2020), the insurer appealed a judgment awarding the plaintiff the sum of $ 85,618.50 against the insurer and ordered it to [19659002] FACTS

A dispute over insurance coverage arose from an incident that occurred in May 201

4 during which William Sager, Jr. (decedent) received fatal injuries when a bar manager at a nightclub shot him and caused him to fall down an entire staircase. The bar manager finally pleaded guilty to first-degree murder and was sentenced to 18 years in prison. The disputed nightclub is run by plaintiff NHJB, Inc., which does business as Molly & # 39 ;s Pub, whose sole shareholder was plaintiff Norman Habib.

The complainants were insured at all relevant times by an insurance policy issued by the defendant, which waived coverage when it was originally notified of the incident within a few days of its occurrence. After a personal injury action was initiated against the plaintiff, the plaintiffs again sought coverage from the defendant, who again waived coverage and relied largely on an abuse and exclusion of batteries included in the policy.

The plaintiff sued the insurer with the allegation that the defendant had violated the insurance contract and tried to obtain a declaration that the defendant is obliged to defend and compensate the plaintiff in the underlying personal injury action. Both parties eventually reached a summary judgment.

The trial court – the Supreme Court – granted the appellant's request for a partial summary judgment, denied the defendant's cross-examination and ordered that the defendant be obliged to defend the plaintiff in the underlying personal injury action 'by completing the discovery. '

ANALYSIS

As regards the appellant's appeal, it concluded that the Board of Appeal erred in partially granting the plaintiff's request for a partial summary judgment and granted the plaintiff's request to compel, and erred in denying those parts of the defendant's transversal motion. summary judgment rejecting the complaint and its third counterclaim, and it therefore amended the amended judgment accordingly. Although the Appeals Department concluded that the incident constituted an incident under the terms of the policy, it nevertheless agreed with the insurer that the coverage of the incident was excluded from the insurance abuse and the exclusion of the battery.

In general, an insurer is obliged to provide a defense, unless it can show that the allegations about the complaint are intended to be exclusively and entirely covered by the political exceptions, and moreover that the allegations in tot do not is subject to some other interpretation.

Since all claims against the plaintiff in the underlying action are "" based on "" or derive from the bar manager's attack, without which the plaintiff in the underlying personal injury action would have no reason to take action. As there was no cause for action but for the assault, the abuse and exclusion of batteries is applicable and excludes coverage.

A decision in this matter does not have to wait for the discovery in the personal injury action. The analysis of the applicability of an exception depends on the facts relied on, not on the conclusive allegations in the underlying complaint. The accusations about the complaint in the underlying personal injury action mean that only and entirely within the political exceptions, and the accusations, in totality are subject to any other interpretation. Even if one learned during the discovery that there was a defect with respect to the stairs, the fact remains that, but for the bar manager's attack, the decedent would not have fallen down the stairs.

Since there is a distinction between the ultimate insured's liability and the insured's right to coverage based on the language of the insurance, and thus only because the insured can be held liable according to any theory of negligence, the insurance's exemption for damage does not overcome of abuse.

It was therefore ruled and declared that the defendant is not obliged to defend or indemnify the plaintiff in the underlying action, and as amended, the amended judgment is confirmed free of charge.

Killing a person by deliberately shooting him down a flight of stairs is obviously an assault and battery and clearly excluded from the terms of the policy. The fact that a plaintiff alleged negligence in trying to keep an insurance company – and its deep pockets – involved does not change the fact that there was no case unless the plaintiffs could prove that the deceased was killed by an assault recognized in a criminal case, the Appeals Division found deficient on coverage to defend or damage them due to the exclusion. coverage, handling of insurance claims, infidelity and insurance fraud almost equally for insurers and policyholders. He also acts as an arbitrator or mediator for insurance-related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims lawyer and more than 52 years in the insurance industry. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine / ACE Legend Award.

For the past 52 years, Barry Zalma has devoted his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to enable insurers and their claims staff to become professional in insurance claims.

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