ASSAULT AND BATTERY EXCLUSION DID NOT APPLY TO BAR PATRON’S INJURIES

Commercial General Liability	Assault and Battery Exclusion
Physical Altercation Exclusion

Jacob Griffey (Griffey) was at The Pub House in Liberty, Missouri, a bar operated by BJB Liberty, LLC (BJB). When Griffey began arguing with another bar patron, two bouncers escorted him outside for a discussion. Griffey was allowed back in but almost immediately resumed the argument with the other patron. At that point, a bouncer approached him from behind, placed his arm around his neck, lifted him off the floor, and carried him to the door. The chokehold caused Griffey’s to lose consciousness. When the bouncer released his grip, the unconscious Griffey fell and struck his head on the sidewalk, sustaining an epidural hematoma that required surgery.

Griffey made a claim against BJB for bodily injuries and medical expenses that BJB forwarded to its commercial liability insurance carrier, Penn-Star Insurance Co. (Penn). Penn informed BJB in a letter that there might not be coverage but that it would investigate under a reservation of rights. Penn later sent a letter than coverage did not apply because of the assault and battery and physical altercation exclusion on the policy. Griffey petitioned for damages and Penn filed a separate action for declaratory judgment declaring that coverage did not apply. BJB and Griffey entered into an agreement to limit recovery to the amount available under the insurance. The court entered judgment for Griffey and awarded damages of $200,000 on the negligence claim.

Penn's declaratory judgment action was heard and court entered judgment in favor of Penn finding that the bouncer's action was an assault and battery. Griffey appealed.

The appellate court found that the cited exclusions did not apply to Griffey's injuries. Griffey’s allegation was that the bouncer was negligent in picking him up in such a way as to cut off his air supply without knowing he had done so. This induced Griffey's unconsciousness that lead to his head injury after the bouncer released him. Griffey's petition did not allege a battery, attack, or use of unreasonable force.

The court also found that the bouncer's actions did not constitute a physical altercation Griffey alleged that the bouncer was operating within the course of doing his employment in halting a confrontation.

The court determined that Penn’ breached both its duty to defend and the duty to indemnify. The judgment was reversed and remanded for further proceedings consistent with this decision.

Missouri Court of Appeals, Western District. Penn-Star Insurance Co., Respondent, v. Jacob Griffey, Appellant. No. WD 70031. Jan 19, 2010. Motion for Rehearing and/or Transfer to Supreme Court Denied March 2, 2010. Application for Transfer Denied April 20, 2010. 2010 WL 152100 (Mo.App W.D.)