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CERTAIN UNDERWRITERS AT LLOYD'S v. CHO

February 26, 1996

CERTAIN UNDERWRITERS AT LLOYD'S
v.
YUNG KUK CHO, WON CHO, DENNIS F. STRICKLAND and ERIE STEAK AND BEER, INC.



The opinion of the court was delivered by: JOYNER

 JOYNER, J.

 FEBRUARY 26, 1996

 Plaintiff, Certain Underwriters at Lloyd's, moves this Court for a summary judgment on its declaratory judgment action against the parties involved in an underlying litigation. The plaintiff in the underlying litigation is Dennis Strickland and the defendants are Erie Steak and Beer, Inc. and its owners Yung Kuk Cho and Won Cho (jointly, Erie). The underlying complaint alleges that Strickland visited Erie and placed a food order with an Erie employee. The employee then viciously attacked Strickland, causing him severe injuries. According to the underlying complaint, Erie was aware of its employee's vicious tendencies and drug use. The complaint brings a claim of negligence against Erie for (1) failure to supervise employees, (2) negligent hiring, (3) negligent supervision, (4) failure to monitor drug use, (5) failure to control employee actions, (6) failure to warn the public, (7) failure to protect the public, (8) failure to exercise due care under the circumstances and (9) being otherwise negligent.

 Lloyd's seeks a declaratory judgment that it has no duty to defend or indemnify Erie in the underlying action due to the terms of the insurance contract. Because this is a motion for summary judgment, we must consider whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue of material fact, and whether Lloyd's is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). We must determine whether the evidence is such that a reasonable jury could return a verdict for Defendants. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Here, there is no dispute over the underlying facts. *fn1"

 Lloyd's argument in favor of summary judgment is based on the following insurance contract language:

 
Coverage A - Bodily Property Liability
 
Coverage B - Property Damage Liability

 The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of

 A. bodily injury

 B. property damage to which this insurance applies . . .

 
* * *

 Assault and Battery Exclusion

 It is agreed that this insurance does not apply to bodily injury or property damage arising out of an assault or battery, provoked or unprovoked, committed by an Insured or ...


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