Mr. Aguilar alleged that Tank had been negligent for (1) failing to take reasonable steps to ensure the safety of its patrons; (2) failing to remove Garcia from the premises; (3) failing to employ an adequate number of security staff; and (4) failing to properly train its security staff.

Founders Insurance Company, which had issued an insurance policy to Tank, sought a declaration that its policy did not cover Mr. Aguilar's negligence claim against Tank.

The trial court granted summary judgment in favor of Mr. Aguilar, and Founders appealed.

The Founders Policy

The Founders policy provided that it did not apply to:

“[b]odily injury” or “property damage” expected or intended from the stand point of the insured.

Further, an endorsement to the policy excluded coverage for:

8. Assault and/or Battery/Negligent Hiring

“Bodily injury”, “property damage”, or “personal and advertising injury” arising from:

(a) assault and/or battery committed by any insured, any “employee” of an insured, or any other person;

(b) The failure to suppress or prevent assault and/or battery by any person in subparagraph 8(a) above;

(c) The selling, serving or furnishing of alcoholic beverages which result [sic ] in an assault and/or battery; or

(d) The negligent:

(1) Employment;

(2) Investigation;

(3) Supervision;

(4) Reporting to the proper authorities, or failure to so report; or

(5) Retention

by a person for whom any insured is or ever was legally responsible and whose conduct would be excluded by subparagraphs 8.(a) through 8.(c) above.

The appellate court reversed.

In its decision, the appellate court explained that subparagraph 8(b) of the policy stated that the policy excluded coverage for the “failure to suppress or prevent assault and/or battery by any person.” The “plain meaning” of this provision, the appellate court said, was that Founders would “not cover the failure to prevent a battery.”

This exclusion, the appellate court declared, was “not limited to any particular legal theory.” Because Mr. Aguilar's negligence claim alleged in essence that Tank's employees had failed to prevent Garcia from battering him, subparagraph 8(b) excluded coverage, regardless of the specific theory alleged.

The appellate court rejected Mr. Aguilar's contention that his claim had to be covered because Garcia had been extremely intoxicated and unable to form the specific intent to batter him, reasoning that the policy did not refer to an intentional act and application of the exclusion did “not depend upon the perpetrator's mental state” or whether Mr. Aguilar was the intended victim. The appellate court concluded:

[Mr.] Aguilar's complaint allege[d] that Garcia struck him and that Garcia later pleaded guilty to aggravated battery. Thus, Garcia committed a battery on [Mr.] Aguilar and the exclusion applie[d] regardless of Garcia's mental state.

The case is Founders Ins. Co. v. The Tank, Piagentini Taverns, Inc., No. 2–15–1135 (Ill. Ct.App. Aug. 1, 2016).