The Bridge Street Pub, the site of a tragedy, became the focus of a dispute between its insurer, Penn-America Insurance Company (Penn) and a pub patron. Witnesses confirmed that a pub bartender got into a verbal altercation with a customer. After continued verbal sparring, the customer was removed from the pub. Douglass Mallar was among the witnesses. He was also seated closest to the bartender. Mallar claimed damages for being traumatized by the following event. He was sprayed with blood when the argumentative patron return with a gun and fatally shot the bartender.

Penn denied Mallar's claim for damages from an emotional distress injury. The insurer based its denial on its CGL policy exclusion that barred recovery for losses involving assault & battery as well as a variety of similar offenses occurring either on or off the pub's premises. The carrier filed for a declarative judgment and the lower court affirmed. Mallar appealed.

In the appeal, Mallar argued that, rather than his injuries being caused by the actual shooting, it was due to the bartender's actions that initiated the events leading directly to the shooting. The higher court stated that, while the bartender's actions did provoke the fatal event, Mallar's injuries were from the shooting and that incident was clearly excluded by the policy. The lower court decision was affirmed in favor of the carrier.

Douglas Mallar, Plaintiff v. Penn-America Insurance Company, Defendant. Maine Supreme Judicial Court. No. 2003 ME 143. December 9, 2003. Affirmed CCH 2004 Personal and Commercial Liability Cases 8004