270_C279

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"EXPECTED OR INTENDED INJURY" EXCLUSION
DID NOT APPLY TO BAR PATRON'S INJURIES

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Jacob Griffey (Griffey) was at The Pub House in Liberty, Missouri, a bar operated by BJB Liberty, LLC (BJB) on April 7, 2004. When Griffey began arguing with another bar patron, two bouncers escorted him outside. Following a discussion with them, Griffey was allowed back in but almost immediately resumed the argument with the other patron. At that point, a bouncer approached him from behind, placed his arm around his neck, lifted him off the floor, and carried him to the door. The chokehold cut off Griffey's air supply but the bouncer, not knowing that Griffey had lost consciousness, carried him outside and placed him on the sidewalk. When the bouncer released his grip, Griffey fell and struck his head on the sidewalk, sustaining an epidural hematoma that required surgery.

 

Griffey made a claim against BJB for bodily injuries and medical expenses that BJB forwarded to its commercial liability insurance carrier, Penn-Star Insurance Co. (Penn). Penn informed BJB in a letter dated March 3, 2005 that there might not be coverage but that it would investigate under a reservation of rights. In a May 25, 2005 letter, Penn stated that coverage did not apply, citing the exclusion for "assault and battery and physical altercation." Griffey petitioned for damages on August 24, 2005. Penn filed a separate action for declaratory judgment declaring that coverage did not apply (and that it had no duty to defend) based on exclusions for "expected or intended injury" and for injuries from an "assault and battery or physical altercation." BJB and Griffey entered into an agreement to limit recovery to the amount available under the insurance while this action was still pending. The court entered judgment for Griffey and awarded damages of $200,000 on the negligence claim. Penn's declaratory judgment action was heard on August 27, 2007. The court entered judgment in favor of Penn as to coverage, finding that the bouncer's action was an assault and battery. Griffey appealed.

 

The Missouri Court of Appeals determined that provisions in BJB's commercial liability insurance policy that excluded coverage for bodily injury resulting from use of reasonable force to protect persons or property, and for bodily injury arising from an assault and battery, did not apply to Griffey's injuries. His allegation was that the bouncer was negligent in picking him up in such a way as to cut off his air supply without knowing he had done so. This induced Griffey's unconsciousness that lead to his head injury after the bouncer released him. Griffey's petition did not allege a battery, attack, or use of unreasonable force, and he did not assail the bouncer for his decision to physically remove him or for the removal itself.

 

The court also found that the bouncer's actions in removing Griffey, as alleged in his negligence claim against BJB, did not constitute a "physical altercation" as defined in the commercial liability insurance policy resulting in excluding coverage for bodily injury arising from an assault and battery or "physical altercation." Griffey alleged that the bouncer, in the course of doing his job and in order to stop a confrontation with another patron, removed him by holding him in such a way as to cut off his air supply without realizing he had done so.

 

The court determined that Penn chose to believe facts neither asserted in the petition nor demonstrated as fact and that it breached both the duty to defend and the duty to indemnify. The judgment was reversed and remanded for further proceedings consistent with this decision.

 

Missouri Court of Appeals, Western District. Penn-Star Insurance Co., Respondent, v. Jacob Griffey, Appellant. No. WD 70031. Jan 19, 2010. Motion for Rehearing and/or Transfer to Supreme Court Denied March 2, 2010. Application for Transfer Denied April 20, 2010. 2010 WL 152100 (Mo.App W.D.)