When deciding whether the insurer’s duty to defend is triggered, New York Courts typically confine their analysis to the specific language of the complaint.  As a result, savvy plaintiff’s attorneys plead negligence even in cases where their client’s injury was clearly the result of an intentional act or other frequently excluded causes of injury.

In Hermitage Ins v Beer Bros, the court looked beyond the four corners of the complaint to the actual facts of the underlying case to support an insurer’s disclaimer.  The facts revealed an incident where one of the bar’s security staff chased a would-be patron who had spit in his face across St. Marks Place in New York City and tackled him on the sidewalk making contact with the underlying plaintiff, a bystander.  She brought suit alleging personal injuries against the bar and the security officer.  Her underlying complaint alleged multiple theories of negligence against the bar and the bouncer.

Hermitage, the bar’s insurer disclaimed coverage under their policy’s broad assault and battery exclusion which applied against “any claim alleging assault and/or battery not matter how the assault and/or battery is alleged to have occurred.”

The court found that, despite her pleading of negligence, the actual cause of her alleged injury was battery.  Even if she was not the intended target of the battery, the exclusion applied.  The court explained: “Regardless of the theory pleaded…there would be no cause of action “but-for” an assault or battery.”  Hermitage was declared to have no duty to defend or indemnify the bar in the underlying suit.  Thanks to Jim Rogers for his contribution to this post.  Please email Brian Gibbons with any questions.