Physical Contact Interpreted

 

September 30, 2013

This case involves the interpretation of the term “physical contact” in the insurance policy's assault or battery exclusion. The case is Mount Vernon Fire Insurance Corporation v. Oxnard Hospitality Enterprise, Inc., 2013 WL 5161656.

 

Busby, a nightclub dancer, suffered bodily injury on Oxnard's premises shortly after she had completed her shift when a patron threw flammable liquid on her and then set her on fire. Busby sued Oxnard and others for negligent failure to provide adequate security. While the underlying action was pending, Oxnard's insurer (Mount Vernon Fire Insurance) brought this action for declaratory judgment that it had no duty to defend Oxnard based on the assault or battery exclusion in the general liability policy.

 

Busby argued that the exclusion's definition of “battery” required actual body-to-body physical contact. Since that did not occur in this instance, Busby contended that the exclusion did not apply and so, there was coverage under the policy. The insurer argued that physical contact means the union or junction of things that have a material existence, or the touching of material things. The trial court agreed with the insurer and granted its motion for summary judgment. This appeal followed.

 

The court of appeals noted that the policy exclusion defines battery as “negligent or intentional physical contact with another without consent that results in physical or emotional injury”. The court also noted that the tort of battery generally is not limited to direct body-to-body contact. In fact, the court said, the Restatement Second of Torts clearly states that “the meaning of 'contact with another's person' does not require that one should bring any part of his own body in contact with another's person”, and that “one is liable for battery if one throws a substance upon the other”. The court also noted that case law supported the position that physical contact with another does not distinguish between directly striking an individual and striking an individual through an intermediary object.

 

The court ruled that the insurance policy at issue here does not provide coverage for Busby's claims due to the applicability of the assault or battery exclusion. Physical contact did not require body-to-body contact as Busby argued, and the assault or battery exclusion was unambiguous in its application to the facts of this case. The ruling of the trial court was affirmed.

 

Editor' Note: The Court of Appeal of California held that physical contact does not require a direct body-to-body contact, but instead includes a mere striking or touching. The court used the Restatement Second of Torts and court rulings from various jurisdictions in support of its opinion, and found that the assault or battery exclusion clearly applied so as to deny coverage under the general liability policy.