Assault and Battery
April 2008
All D&O policies exclude coverage for claims that allege bodily injury and property damage. These exclusions focus on specific types of injury rather than a particular type of wrongful act, and are excluded because they are exposures that are typically covered by the organization's general liability policy. Most D&O policies also exclude some types of personal injury and/or advertising injury, again because these exposures are usually the subject of general liability coverage. A generic example of D&O policy wording that excludes bodily injury and property damage, as well as certain personal injury offenses, follows:
The Insurer shall not be liable to make any payment for Loss in connection with a Claim made against an Insured:
(f) for emotional distress or for injury from libel, slander, defamation, disparagement, or a violation of a person's right of privacy; …
(k) for bodily injury, sickness, disease, or death of any person, or damage to or destruction of any tangible property, including the loss of use thereof;
When a D&O policy also provides Employment Practices Liability (EPL) coverage, the bodily injury or personal injury exclusion is sometimes expanded to include the offenses of assault and battery, as shown in the following examples:
The Insurer shall not be liable to make any payment for Loss in connection with any Claim made against an Insured:
for:
1. bodily injury, sickness, disease, death, assault or battery of any person…
Admiral Insurance Co.
NP 3200 (08-99)
The Insurer shall not be liable to make any payment in connection with any Claim:
for bodily injury, sickness, disease, death, false arrest, false imprisonment, damage to or destruction of tangible property (including loss of the use thereof), and, except to the extent a Claim is made for Wrongful Acts) defined under Clause II.T.3., assault, battery, invasion of privacy, emotional distress, libel, slander or defamation.
Houston Casualty Co.
GPH 1000 (1/05)
Assault and battery exclusions are important in the EPL context because charges of sexual harassment can contain allegations of assault and battery. These allegations can be made either in a civil or a criminal context. When assault and battery charges are brought as part of a civil lawsuit, the aggrieved plaintiff may be able to recover compensatory and, in some cases, punitive damages. If the alleged assault and battery is reported to the appropriate governmental officials, and if the charges are felt to warrant prosecution, criminal proceedings can result. Such proceedings usually are quite expensive to defend and can result in the imposition of criminal fines payable to the state or even in jail sentences.
Even if the policy does not contain an assault and battery exclusion, assault and battery allegations should not automatically be presumed to be covered. For example, if an assault and battery claim does not arise from a wrongful act or wrongful employment practice as defined in the D&O policy, it likely would not be covered. Therefore, if an employee commits an assault and battery on a non-employee (e.g., a customer or vendor), the policy likely would not provide coverage because the claimant usually must be an employee, a former employee or an applicant for employment.
Insureds should carefully examine any existing or proposed D&O policy that provides EPL coverage to determine whether or not assault and battery allegations in connection with employment practice allegations would be covered. Insureds also should consider whether public policy or if the policy's intentional acts exclusion would preclude coverage for assault and battery claims.