The judges of the Eighth Circuit recently affirmed the dismissal of two cases against an insurer after finding the concurrent causation rule did not prevent the application of a policy exclusion for assault and battery. The case is called Scaglione v. Acceptance Indem. Ins. Co., 75 F.4th 944 (8th Cir. 2023).
In the wee hours of June 16, 2019, two patrons of Voce Bar in downtown St. Louis got into a fight with firearms. A stray shot struck and injured a bystanding patron, Sominkcole Conner, who sued Voce's owner and operator, Steven Scaglione, for premises liability and negligence in Missouri state court. Conner claimed Scaglione knew patrons, especially early morning patrons, came to the bar armed, yet he did not have sufficient security measures in place to protect innocent bar patrons. Scaglione sought defense and indemnity under his CGL policy with Acceptance, who refused to provide either service. The case went to arbitration, which ended with a $2.5 million award to Conner.
Conner filed suit against Scaglione and Acceptance for fulfillment of her award; Scaglione, in turn, sued Acceptance for both bad faith failure to defend and indemnify and breach of fiduciary duty. In the District Court for the Eastern District of Missouri, Acceptance sought dismissal of both claims because Scaglione's CGL policy contained an assault-and-battery exclusion. Conner argued the assault-and-battery exclusion couldn't apply because the exclusion in the policy did not specify it applied to injuries caused by a third party unrelated to the insured where the victim was a bystander. She also argued that Scaglione's alleged negligence was a separate and distinct cause of her injuries from the gunfire, so her award should be covered under the concurrent proximate cause rule, sometimes called the "concurrent causation doctrine."
Scaglione's arguments were similar to Conner's. He claimed the assault and battery exclusion didn't apply because his alleged negligence preceded, rather than followed, the shooting. He also asserted the assault and battery exclusion didn't apply to situations where an innocent victim's injuries were caused by the assault of a third party.
The district court found that Conner's allegations surrounding the shooting fell squarely within the definition of assault and battery, and that there was no language in the policy showing an intention to create an exception for injuries inflicted on an innocent bystander by a third party. Scaglione's alleged negligence, the judges said, was not a separate and distinct cause of Conner's injuries. Therefore, Connor's injuries arose out of a specifically excluded peril, and the court dismissed Conner's and Scaglione's claims against Acceptance. Conner and Scaglione appealed.
Before the Eighth Circuit, Conner and Scaglione both asserted the argument that the assault and battery exclusion in the CGL policy didn't apply to situations where an innocent bystander was injured by the actions of a third party assailant. They pointed to Adams v. Certain Underwriters at Lloyd's of London, 589 S.W.3d 15 (Mo. Ct. App. 2019), where the Missouri Court of Appeals had ruled a policy's assault and battery exclusion didn't apply to injuries suffered by an innocent bystander. The judges firmly rejected this argument. They pointed out that the exclusion applied to "[a]ny claims arising out of Assault and/or Battery" (emphasis added), and there was no indication, direct or implied, of an exception for innocent bystanders. Conner's and Scaglione's reliance on Adams was misplaced because the judges in that case said the exclusion didn't apply due to insufficient allegations of assault and battery, not because the victim was an unintended target.
Next, Conner and Scaglione argued that even if the assault and battery exclusion applied to Conner's injuries, the CGL policy should cover the damages because Scaglione's alleged negligence in failing to provide security measure such as frisking patrons was an independent and distinct cause of the injuries under the concurrent causation rule. There were two different views of this rule in Missouri. One view, as claimed by Conner and Scaglione, stated concurrent causation could be found if the elements of the alleged concurrent cause could be stated without pleading an essential element of the excluded cause. On the other side was "but for" causation, which looks at whether the injuries would have occurred "but for" the alleged concurrent cause.
This argument likewise fell flat. There was no distinction between Scaglione's alleged negligence and the gunfire as the cause of Conner's injuries because it was possible that armed patrons could enter the bar whether or not Scaglione had frisking or other security measures in place.
Since Scaglione's negligence was not an independent and distinct cause of Conner's injuries, the concurrent proximate cause rule was inapplicable. Therefore, the assault and battery exclusion applied to Conner's injuries. Dismissal of the cases against Acceptance was affirmed.
Editor's Note: In this case, had Scaglione's alleged negligence been found an independent cause of Conner's injuries from the assault and battery, the concurrent causation rule may have allowed coverage for the arbitration judgment in the face of the assault and battery exclusion. Though anti-concurrent causation language was not part of the equation here, insurers often add anti-concurrent causation clauses to a policy specifically to prevent coverage for any damages even partly caused by an excluded peril, no matter the role of a covered cause of loss.