General liability insurance carried by the owner/manager of an apartment complex contained the following exclusion: "It is agreed that no coverage shall apply under this policy for any claim, demand or suit based on Assault and Battery...." The insurer sought a declaratory judgment that it did not have defense or indemnification duties, because of it, for a suit brought against the complex by a woman who was assaulted in her apartment building. She alleged negligent supervision, management and control of the premises.

A federal district court found the exclusion ambiguous and construed it in favor of the insured and against the insurer. It expressed doubt whether the negligence claims were within the scope of "any claim....based on Assault and Battery" and whether the exclusion was effective with respect to "an intentional tort committed by a person wholly unrelated to the insured." The insurer appealed.

The appeal court noted that the claimant "....would be unable to maintain claims for negligent supervision, maintenance and control 'but for' the assault upon her...." It concluded that her claims were excluded from coverage because, under New York law, her claims were "based on" assault and battery.

The court determined that it was immaterial that "neither the insured nor any of its agents perpetrated the assault." The claims were "based on" assault and, therefore, excluded from coverage.

The judgment of the trial court was reversed in favor of the insurer and against the insured.

(MOUNT VERNON FIRE INSURANCE COMPANY, Plaintiff-Appellant v. CREATIVE HOUSING LIMITED et al., Defendants-Appellees. United States Court of Appeals for the Second Circuit. No. 95-7248. August 21, 1996. CCH 1996 Fire and Casualty Cases, Paragraph 5796.)