A patron of a bar alleged that he was struck on the head by an unidentified individual who was "inebriated, hostile and assaultive." He filed a lawsuit against the bar, claiming that it was negligent in allowing or failing to prevent the assault.

The bar's general liability insurer undertook legal defense of the state court lawsuit under a reservation of rights. It sought a federal court declaration, however, that the claim was not covered by the policy and that it did not have a duty to defend or indemnify.

The insurer contended that the claim was barred by an exclusion for (in effect) "....an action seeking damages arising from assault, battery, harmful or offensive contact....regardless of degree of culpability or intent."

The insured argued that there was a question of fact as to whether there was an assault within the meaning of the exclusion. The assailant and his intent were unknown. He might have stumbled while drunk and unintentionally hit the claimant with the beer container. Or the container might have fallen on the claimant as he "....lay passed out under the bar...."

The court said that an insurer's duty to defend and indemnify is "determined solely from the allegations of the complaint." Here it was alleged by the claimant that he was assaulted by another patron who struck him on the head. The scenarios suggested by the insured were only conjecture.

The federal court concluded that the exclusion was applicable and released the insurer from duty to defend or indemnify.

(BRITAMCO UNDERWRITERS, INC., Plaintiff v. NORM'S UNION STATION, INC. dba YOUNG RAY'S BAR ET AL., Defendants. United States District Court for the Eastern District of Pennsylvania. Civil Action No. 91-CV-4594. August 25, 1992.)