In Cotugno v. Euro Lounge, the plaintiff sued for injuries suffered when he was escorted from defendant’s premises and accidentally tripped over a parking block. Plaintiff was successful at a non-jury trial and QBE Insurance Corporation, the defendant’s insurer and a third party defendant in the action appealed.
The appellate court agreed with the trial court’s interpretation of the policy. In addressing the policy, the court noted that bodily injury is or is not covered, as a general proposition, depending on the circumstances. It recognized that where bodily injury or property damage is expected or intended, it is not excluded from coverage if the bodily injury results from the use of reasonable force to protect persons or property. The court determined that the means of removing plaintiff from the lounge after he was punched was a reasonable use of force by the security personnel.
The court then addressed the assault and battery exclusion, which was an added exclusion to the policy. The court determined that the actions of the bouncers could not constitute an assault or battery because they did not possess the required intent to cause bodily injury; therefore, the court rejected the notion that the security personnel had committed an assault on plaintiff. As a result, the Appellate Division Court held that under the facts as found by the trial court, the provisions of the policy were properly applied and coverage was available to Euro Lounge.
Thanks to Sheila Osei for her contribution to this post.