POLICY’S ASSAULT & BATTERY LIMIT APPLIES TO SHOOTING

On the evening of October 24, 2013, the son of Maria Olivares (Son) was at a bar owned by Aztec Marketing, Inc. Son fought with another patron (Patron) and a bar employee ordered the latter to leave. Patron was overheard saying, “I’ll be back. You’ll regret it.” Patron retrieved a gun, returned to the bar, fired a shot in the air and then shot and killed Son.

In January 2017, Olivares filed a wrongful death action against Aztec and one of its employees, asserting claims for negligent security and dram shop liability. At the time of the shooting, Aztec was insured under a commercial general liability policy (including liquor liability) from Scottsdale Insurance Company (Scottsdale).

The policy’s limit for commercial general liability and liquor liability was $1 million. The policy contained an Assault and/or Battery Limited Liability Coverage Form, which provided a $25,000 per incident, $50,000 aggregate coverage for assault and battery.

In February 2018, Olivares, Aztec, and Scottsdale entered into a settlement agreement that fully released Aztec and its employee from the underlying action while reserving the issue of coverage limits to be litigated between Olivares and Scottsdale. Pursuant to the agreement, a $1 million judgment was entered against Aztec with the understanding that the judgment would be satisfied from the policy only. Scottsdale paid Olivares $25,000 pursuant to the assault/battery coverage form, but Olivares contended that the shooting was covered by the full $1 million policy limit.

Scottsdale filed a declaratory judgment action seeking a determination that only the assault/battery coverage form applied. On May 20, 2019, the court granted Scottsdale’s motion for summary judgment. The court found that the terms “assault,” “battery,” and “assault and/or battery” have commonly understood definitions and are not ambiguous. Olivares appealed.

Olivares raised two points on appeal. She first claimed that the motion court erred in granting summary judgment because Scottsdale failed to establish that its assault/battery coverage form applied as a matter of law in that (1) the terms “assault,” “battery,” and “assault and/or battery,” which are not defined in the policy, were ambiguous and thus should be interpreted in favor of coverage; and (2) the uncontroverted facts failed to establish that Son’s death arose out of an “assault,” “battery,” or “assault and/or battery” as those terms were defined by the court.

The court stated that it found nothing duplicitous or difficult to understand about the term “battery” in Scottsdale’s assault/battery coverage form. The court agreed with the motion court that the average layperson would reasonably understand the term “battery” to include a shooting.

Finding that there were no genuine issues of material fact, and that Scottsdale was entitled to judgment as a matter of law, the appellate court affirmed the motion court’s award of summary judgment to Scottsdale.

Scottsdale Insurance Company v. Olivares—Missouri Court of Appeals, Western District—No. WD 83178—September 29, 2020.