An insurer does not have to reimburse a gas station convenience store customer who was injured by a store employee during an exclusion in its coverage, a federal appeals court said Monday, in affirming a lower court.
In June 2019, Paul Semien became embroiled in a dispute with the store’s clerk regarding Mr. Semien’s right to store credit based on awards he won from the store’s video poker machines, according to the ruling by the 5th US Circuit Court of Appeals in New Orleans in Paul Semien v. The Burlington Insurance Co.
The clerk left his post behind a glass counter and hit Mr. Semien in the head with a metal bar, which caused Mr. Semien serious injuries, said the verdict.
Mr. Semien sued the store owner, Houston-based T&T Global Enterprises Inc., and the clerk in state court.
At the time of the incident, T&T had commercial general liability insurance issued by Burlington, North Carolina-based Burlington Insurance Co. which provided up to $1
00,000 in coverage for assault and battery, but excluded coverage when the assault and battery was committed by an insured, which was defined to cover T&T employees “for acts within the scope of their employment.”Citing this exclusion, Burlington denied that it had a duty to defend T&T and the Clerk. Mr. Semien subsequently entered into a settlement with T&T and the clerk. As part of the settlement agreement, they awarded Mr. Semien the right to pursue claims against the insurer.
Mr. Semien sued Burlington in US District Court in Houston, which ruled in favor of the insurer.
That was upheld by a three-judge court panel, which agreed with the lower court that the policy excluded coverage for Mr. Semien’s claim
A “reading of the underlying pleading negates plaintiff’s claim that (the dispatcher) was outside the scope of his employment at the time of the assault,” the decision said.
Attorneys in the case did not respond to requests for comment.
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