Kari Everhart v. Founders Insurance Company
993 N.E.2d 1170
Ind. Ct. App.2013Background
- On March 14, 2009, Kari Everhart was injured (broken arm) at Club Coyote during an incident in which a patron was shoved and then fell into her. Everhart sued Club Coyote in an underlying tort action.
- Founders Insurance had a Commercial General Liability policy covering Club Coyote for the relevant period, but the policy included an Indiana CGL endorsement excluding coverage for "Assault and/or Battery/Negligent Hiring" (including batteries by any person and negligent supervision/hiring/retention).
- Everhart described the incident in interrogatory responses: a bartender allegedly grabbed a patron and banged his head on the bar several times, another person (Brice Elson) shoved the patron toward Everhart, the patron fell and grabbed her, causing her to break her arm.
- Founders sued for declaratory judgment seeking a ruling that it had no duty to defend or indemnify the insured under the battery exclusion; Everhart and the insured answered.
- The trial court granted Founders summary judgment, finding Everhart’s own description of events fit Indiana’s definition of battery and thus the endorsement excluded coverage; Everhart’s motion to correct error was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the battery/assault exclusion bars coverage | Everhart: proximate cause was Club Coyote’s negligence, not an intentional act; she never alleged anyone intentionally hurt her | Founders: Everhart’s interrogatory admission describes conduct that constitutes a battery; undisputed allegation is deemed admitted and falls within the exclusion | The court held the interrogatory description fits the Restatement/Indiana definition of battery, so the exclusion applies and Founders has no duty to defend or indemnify |
Key Cases Cited
- Mullins v. Parkview Hosp., Inc., 865 N.E.2d 608 (Ind. 2007) (adopts Restatement definition of battery)
- Singh v. Lyday, 889 N.E.2d 342 (Ind. Ct. App. 2008) (discusses battery definition and insurer duty issues)
- Knight v. Indiana Ins. Co., 871 N.E.2d 357 (Ind. Ct. App. 2007) (noting even slight touching can constitute battery)
- Fordyce v. Montgomery, 424 S.W.2d 746 (Mo. Ct. App. 1968) (defendant liable if intended to harm a third person but injured plaintiff by mistake)