A federal district court in Pennsylvania has ruled that an exclusion in a commercial general liability insurance policy precluded coverage of a lawsuit stemming from a shooting in a bar's parking lot.
The Case
Vincent Smithwick, alleging that he was shot by an unknown individual in the rear parking lot of a bar known as the "Bala Inn" or the "Bala Inn Sports Bar and Grill," sued numerous parties, contending that they owned, managed, or controlled the property and knew or should have known "of prior incidents of violence and criminal acts on the property and parking lot."
Mr. Smithwick asserted that the defendants' failure to take reasonable security measures had caused his injuries, and he brought claims for negligent security, negligence, and negligent infliction of emotional distress.
He explicitly asserted "no claim for assault and/or battery" and did "not allege or assert that [his] injuries were due to intentional conduct" but rather that they were due to the defendants' "negligent and/or reckless acts, omissions and other violations."
Great Lakes Insurance SE, which had issued a commercial general liability insurance policy to one of the defendants, asked a court to declare that it had no duty to defend or indemnify him in Mr. Smithwick's lawsuit.
Great Lakes moved for judgment on the pleadings.
The District Court's Decision
The district court granted the motion, finding that Mr. Smithwick's factual allegations suggested that his injuries were the result of an assault, battery, or physical altercation as outlined in the Great Lakes policy.
In its decision, the district court reasoned that the policy's exclusionary language was "broad." It pointed out that the policy excluded coverage for "bodily injury" arising out of an "assault", "battery", or "physical altercation."
The district court added that the exclusion applied "[w]hether or not caused by or arising out of negligent, reckless, or wanton conduct by an insured, an insured's employees, patrons, or other persons." It also applied "[w]hether or not caused by or arising out of an insured's failure to properly supervise or keep an insured's premises in a safe condition."
The district court noted that Mr. Smithwick was shot, which "clearly" fell within the meaning of battery and physical altercation.
Moreover, the district court continued, the fact that the exclusion covered acts and omissions in connection with the prevention of an assault or battery meant that Great Lakes was "not obligated to defend its insured from allegations that the insured's failure to take certain precautions resulted in [Mr.] Smithwick's injuries.
The district court decided that the factual allegations in the complaint "clearly" demonstrated that the "but for cause" of Mr. Smithwick's injuries "was the shooting, not the lack of security at the parking lot or the failure to prevent the shooting. It concluded that Mr. Smithwick's "artful pleading" failed to overcome the exclusion.
The case is Great Lakes Ins. SE v. Smithwick, No. 18-4797 (E.D. Pa. Oct. 2, 2019). Attorneys involved include: For GREAT LAKES INSURANCE SE, formerly known as GREAT LAKES REINSURANCE (UK) PLC, Plaintiff: DIANE BERNOFF SHER, LEAD ATTORNEY, FINEMAN KREKSTEIN & HARRIS, PHILADELPHIA, PA; MATTHEW E. SELMASSKA, FINEMAN KREKSTEIN & HARRIS, PHILADELPHIA, PA. For VINCENT SMITHWICK, Defendant: LEONARD K. HILL, Hill & Associates, P.C., PHILADELPHIA, PA.
Steven A. Meyerowitz
Steven A. Meyerowitz, a Harvard Law School graduate, is the founder and president of Meyerowitz Communications Inc., a law firm marketing communications consulting company. He may be contacted at [email protected].