Kotini v. Century Surety Co.
411 S.W.3d 374
Mo. Ct. App.2013Background
- On March 4, 2007, Kotini was injured when Anthony Williams, working as a bouncer for Dante’s LLC, forcibly removed him from Dante’s; Kotini suffered head injuries after being lifted, kneed, and dropped twice.
- Dante’s and Williams were insured under a Century Surety Company general liability policy that contained an assault and battery exclusion and an expected-or-intended-injury exclusion.
- Century denied coverage and refused to defend or indemnify Dante’s and Williams, asserting the assault/battery exclusion applied.
- Kotini, Dante’s, and Williams executed a Section 537.065 consent settlement limiting Kotini’s recovery to insurance assets; the court entered a judgment (later amended to $500,000 plus interest) against Dante’s and Williams.
- Kotini then brought an equitable garnishment action against Century to reach the policy proceeds; after a bench trial the court found the assault and battery exclusion applied and entered judgment for Century.
- Kotini appealed, arguing (1) Century breached its duty to defend and is barred from contesting coverage, (2) the exclusion is ambiguous, and (3) the court relied on an unpled exclusion; the court affirmed the trial court’s judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Century precluded from litigating coverage because it breached duty to defend? | Kotini: Century’s refusal to defend waived its right to contest coverage, so garnishment should succeed. | Century: Coverage is contested; duty-to-defend argument was not raised below. | Waived — Kotini did not raise breach of duty to defend at trial; issue forfeited on appeal. |
| Is the assault and battery exclusion ambiguous? | Kotini: Terms “assault” and “battery” are undefined and susceptible to multiple meanings, so ambiguous and construed for insured. | Century: Ordinary dictionary meanings apply; exclusion is broad but unambiguous and enforceable. | No ambiguity — court used ordinary dictionary meanings and enforced the exclusion as written. |
| Did the trial court rely on an unpled exclusion (expected/intended-injury)? | Kotini: Court’s findings (unreasonable force) reflect reliance on the expected/intended-injury exclusion not pled by Century. | Century: Court applied assault/battery exclusion; references to expected/intended-injury responded to Kotini’s own trial arguments. | No error — court based decision on assault/battery exclusion; references addressed Kotini’s arguments and were supported by facts. |
| Did the facts fall within the assault/battery exclusion? | Kotini: Conduct was within scope of bouncer duties or reasonable force, so exclusion should not apply. | Century: Facts (lifting, kneeing, dropping twice, disparity in size) show intentional offensive touching excluded by policy. | Held for Century — trial court found Williams’s conduct constituted assault/battery under ordinary meaning; exclusion applied. |
Key Cases Cited
- Cox v. Steck, 992 S.W.2d 221 (Mo. App. 1999) (appellate standard of review for bench judgment)
- Peck v. Alliance Gen. Ins. Co., 998 S.W.2d 71 (Mo. App. 1999) (requirements for equitable garnishment and insurer burden on exclusions)
- Taggart v. Maryland Cas. Co., 242 S.W.3d 755 (Mo. App. 2008) (equitable garnishment principles)
- Drennen v. Wren, 416 S.W.2d 229 (Mo. App. 1967) (collateral estoppel effect of underlying judgment)
- Hampton v. Carter Enterprises, Inc., 238 S.W.3d 170 (Mo. App. 2007) (insurer bears burden to prove exclusions)
- Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129 (Mo. banc 2007) (ambiguity standard and ordinary meaning rule)
- Burns v. Smith, 303 S.W.3d 505 (Mo. banc 2010) (strict construction of exclusions against drafter)
- McCormack Baron Mgt. Servs., Inc. v. Am. Guarantee & Liab. Ins. Co., 989 S.W.2d 168 (Mo. banc 1999) (policy interpretation is question of law)
- Trainwreck West Inc. v. Burlington Ins. Co., 235 S.W.3d 33 (Mo. App. 2007) (undefined policy terms do not automatically create ambiguity)