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First Mercury Insurance Company v. Kristopher Rossi

March 31, 2011

FIRST MERCURY INSURANCE COMPANY, PLAINTIFF,
v.
KRISTOPHER ROSSI, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Schiller, J.

MEMORANDUM

Kristopher Rossi was injured when he was attacked by bouncers at the Grape Street Pub. Rossi subsequently sued the bar and others in the Philadelphia County Court of Common Pleas. First Mercury Insurance Company ("First Mercury") seeks a declaration that it owes no duty to defend or indemnify its insured, C & C Music Industries d/b/a Grape Street Philadelphia ("C & C Music"), against Rossi's lawsuit. First Mercury has filed for summary judgment and for the reasons below, the Court grants the motion.

I. FACTUAL BACKGROUND

First Mercury issued C & C Music Commercial General Liability Policy No. FMAP084974 ("the Policy") with a coverage period from July 30, 2007 to July 30, 2008. Pursuant to the Policy's Bodily Injury and Property Damage Liability Coverage, First Mercury agreed to "pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage,' caused by an 'occurrence', to which this insurance applies." (Pl.'s Mot. for Summ. J. Ex. A [Policy] at 16.) It also has "the right and duty to defend any 'suit' seeking those damages." (Id.) First Mercury has no duty to defend against any lawsuit seeking damages for bodily injury to which the Policy does not apply. (Id.) The Policy defines an "occurrence" as "an accident including continuous or repeated exposure to substantially the same general harmful conditions." (Id. at 32.) "'Accidental' means unexpected or unintended." (Id. at 29.)

Among the Policy's exclusions is one for: "'Bodily injury'or 'property damage' expected or intended from the standpoint of any insured. This exclusion applies even if the 'claim'or 'suit' alleges negligence or other wrongdoing in the supervision, hiring, employing, training, monitoring, or contracting the services of others." (Id. at 16.) The Policy also contains an Assault and Battery Exclusion Endorsement. The Policy excludes:

1. Claims or suits to recover damages for bodily injury or property damage based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way connected with assault and/or battery . . . . Pursuant to this exclusion, the Company is under no duty to defend or indemnify an insured regardless of the degree of culpability or intent and without regard to:

a. Whether the acts are alleged to be by or at the instruction or at the direction of the insured, his officers, agents or servants; or by any other person lawfully or otherwise on, at or near premises owned or occupied by the insured; or by any other person;

b. The alleged failure or fault of the insured, or his officers, employees, agents or servants, in the hiring, supervising, retention or control of any person, whether or not an officer, employee, agent or servant of the insured;

c. The alleged failure or fault of the insured, or his officers, employees, agents or servants, to attempt to prevent, bar or halt any such conduct.

2. Additionally, this exclusion applies to any claim or suit by any other person, firm or organization, asserting rights derived from, or contingent upon, any person having or asserting a claim or suit which is excluded under paragraphs

1.a. through 1.c. above. In addition, this exclusion specifically excludes from coverage claims or suits for:

a. Emotional distress, or for loss of society, services, consortium and/or income;

b. Reimbursement for expenses (including but not limited to medical expenses, hospital expenses and wages) paid for or incurred by such other person, firm or organization;

c. Any obligation to share damages with or repay someone who must pay damages because of "bodily injury" or "property damage"; all arising from actual or alleged assault and/or battery.

(Policy at 39 (emphasis in original omitted).) The Assault and Battery Exclusion also contains language similar to that quoted above but applicable to damages sought for "personal injury" or "advertising injury." (Id. at 40.) The Assault and Battery Exclusion defines "assault" as "apprehension of harmful or offensive contact between or among two or more persons by threats through words or deeds" and defines "battery" as "harmful or offensive contact between or among two or more persons." (Id.)

On October 30, 2009, Rossi sued C & C Music and others in the Philadelphia Court of Common Pleas. He alleged that on October 31, 2007, he was a patron at the Grape Street Pub when employees of the establishment "acting in the course and scope of their employment or agency, and without provocation or cause, suddenly and without warning, violently grabbed plaintiff by his right elbow, then placed Plaintiff in a 'headlock' position, dropped Plaintiff to the floor, and then picked Plaintiff up by the neck and feet and dragged Plaintiff downstairs and onto the sidewalk in front of the premises, causing Plaintiff to suffer severe injuries." (Pl.'s Mot. for Summ. J. Ex. C [Rossi Compl.] ¶ 20.) As Rossi described it, the "assault . . . occurred suddenly and without warning, cause or provocation, and as a result, Plaintiff, Kristopher Rossi, sustained serious bodily injuries." (Id. ¶ 22.) Rossi also cites the "carelessness and negligence of the Defendants" as responsible for his pain, suffering, loss of income, medical expenses, and future ills. (Id. ¶¶ 25-27.) The Rossi Complaint includes three counts. Count One is an assault claim due to the "assault and battery and/or negligent[] inflict[ion] [of] severe and grievous physical injuries upon Plaintiff as well as emotional distress" at the hands of the bouncers at the bar. (Id. ¶ 30.) Count Two is a battery claim which repeats the charges in the assault claim. (Id. ¶¶ 34-38.) Count Three is a negligence claim based on:

a. Failing to properly supervise its employees including, but not limited to, its security personnel and bouncers;

b. Failing to adequately screen and/or interview its employees, including but not limited to, its bouncers and/or security personnel who were involved in the attack on Plaintiff;

c. Failing to properly train its employees, agents and servants, including but not limited to, its bouncers and/or security personnel in the proper ...


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