298 So.3d 745
La. Ct. App.2020Background:
- On Dec. 25–26, 2013, a gunman fired a .40 caliber handgun into a crowd at Shooter’s Bar & Grill (Mar Jay), killing Mark Womack and Erroll Scott and injuring others.
- Plaintiffs sued Mar Jay for negligence and also sued First Financial Insurance, alleging the insurer’s commercial general liability policy covered the claims.
- First Financial moved for summary judgment, asserting an assault-and-battery exclusion in the policy precluded coverage (no duty to defend or indemnify).
- The trial court sustained the insurer’s objection to a surveillance video offered by plaintiffs, granted summary judgment for First Financial, and dismissed all claims against it; plaintiffs appealed.
- The policy’s endorsement defined “assault” as conduct that gives reason to fear immediate harm and “battery” as physical contact; the exclusion barred coverage for injuries ‘‘arising in whole or in part out of any ‘assault’ or ‘battery’ ’’ and related acts/omissions.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the assault-and-battery exclusion applies to the shooting | Exclusion inapplicable because victims had no physical contact with shooter; exclusion ambiguous | Firing into a crowd is an assault/battery under the policy definitions, so exclusion applies | Exclusion applies; firing into a crowd falls within policy “assault”/“battery” definitions |
| Whether “battery” requires direct person-to-person contact | Battery requires physical contact, and here there was no direct contact between shooter and victims | “Physical contact” can include contact via inanimate objects (bullets); battery need not be direct bodily contact | “Battery” can include contact via a bullet; plaintiffs’ narrow reading rejected |
| Whether Mar Jay’s negligence claims (failure to provide security, etc.) are still covered despite exclusion | Negligence claims are distinct from the assault/battery and should not be entirely excluded | Exclusion expressly covers acts/omissions related to preventing, suppressing, or arising from assaults/batteries, so those negligence theories are barred | Exclusion covers the related negligence theories; claims arise out of the assault/battery and are excluded |
| Whether shooter’s conduct was negligent/gross negligence (so exclusion shouldn’t apply) | Shooter acted recklessly or negligently (not intentionally) — factual dispute precludes summary judgment | Allegations that shooter fired into a crowd show at minimum an assault; intent to cause harm is reasonably inferred | No genuine factual dispute that firing into a crowd constitutes assault/battery; summary judgment proper |
Key Cases Cited
- Hickey v. Centenary Oyster House, 719 So.2d 421 (La. 1998) (assault-and-battery exclusions routinely enforced; policy not intended to cover intentional acts)
- Ledbetter v. Concord General Corp., 665 So.2d 1166 (La. 1996) (exclusionary clauses strictly construed against insurer but enforced when unambiguous)
- Jones v. Estate of Santiago, 870 So.2d 1002 (La. 2004) (shooting generally treated as intentional conduct not entitled to insurance protection)
- Fournette v. Tran, 792 So.2d 870 (La. App. 4th Cir. 2001) (assault-and-battery exclusion applied where employee pointed a gun and an innocent bystander was accidentally shot)
- Fouquet v. Daiquiris & Creams of Mandeville, 49 So.3d 44 (La. App. 1st Cir. 2010) (exclusion that covers acts/omissions connected to assaults bars related negligence claims)
- Bennett v. Ragon, 907 So.2d 116 (La. App. 1st Cir. 2005) (discharging a firearm can qualify as assault/battery even if specific target differs from victim)
- Nastasia v. Sylvan Inc., 617 So.2d 128 (La. App. 5th Cir. 1993) (assault/battery exclusion applied to innocent bystander struck during a fight)
- Swope v. Columbian Chemicals Co., 281 F.3d 185 (5th Cir. 2002) (under Louisiana law, battery may occur via an inanimate object such as a bullet)