Val-Blue had hired Eugene DiSilvo, a retired policeman, as a security guard in its nightclub. During the early morning hours of February 8, 1990, John Hanley, an off-duty police officer, found a man outside the club and, with gun drawn, brought him into the club in order to use the telephone. DiSilvo, in his capacity as security guard, told Hanley to drop his gun, and shot him twice when he did not do so.

Hanley claimed he identified himself as a police officer prior to the shooting, but DiSilvo contended he did so only after he was shot.

Hanley filed suit against the nightclub and DiSilvo. He claimed DiSilvo was negligent, and further charged that Val-Blue was negligent in the hiring, supervision and training of DiSilvo. The nightclub referred the suit to U.S. Underwriters which had issued the nightclub a policy covering accidental bodily injury.

Attached to the policy was an "Assault and Battery Exclusion Endorsement" which provided: "It is agreed that no coverage shall apply under this policy for any claim, demand or suit based on Assault and Battery, and Assault and Battery shall not be deemed an accident, whether or not committed by or at the direction of the insured."

The trial court entered judgment in favor of the insured, saying, in part: ". . .the clear language of the exclusion did not apply to the claim of negligent hiring and supervision as that claim was grounded in negligence and not based on assault and battery . . . " The intermediate court affirmed, and the company appealed to the Court of Appeals.

While the insured acknowledged the intentional nature of assault and battery, under New York law, the insured claimed that the act of shooting Hanley twice was merely negligent, careless or reckless because there was no intention to shoot a police officer.

The Court of Appeals decided that the lack of intent was irrelevant in determining the intentional nature of his act, and said, "The injury being sued upon here is an assault and battery. The plethora of claims surrounding that injury, including those for 'negligent shooting' and 'negligent hiring and supervision' are all 'based on' that assault and battery . . . "

The judgments entered in the lower courts were reversed, and judgment entered in favor of the company.

U.S. Underwriters Insurance Company, Appellant, v. Val-Blue Corp., d/b/a Rascals et al--Court of Appeals of New York--February 9, 1995--647 North Eastern Reporter 2d 1342.