Garrison v. Fielding Reinsurance, Inc.Garrison v. Fielding Reinsurance, Inc.
This is an appeal from a summary judgment on a suit for declaratory judgment brought by appellee, Fielding Reinsurance, Ltd. (Fielding), against appellants, Richard T. Garrison, Jr. and Drink, Inc., d/b/a
The trial court agreed with Fielding that an endorsement to the insurance policy excluding coverage for certain claims was applicable to the facts of this case and that recovery by Stoneleigh P was precluded. Thus, the trial court granted summary judgment in favor of Fielding. We agree with the trial court and affirm.
On September 14, 1986, Richard Simmons and his wife were returning to their car which was parked behind the Stone-leigh P. In the parking lot, they were assaulted by an unknown man who shot Richard Simmons to death.
As a result of this occurrence, Rosemary Simmons filed a wrongful death lawsuit styled Rosemary Simmons, Individually, and as Representative of the Estate of Richard L. Simmons and as Next Friend of Christine Simmons, a Minor; Theresa Simmons; Mary Simmons Matzak; and Thelma Simmons v. DACML, Inc., d/b/a Stoneleigh Hotel and Drink, Inc., d/b/a Stoneleigh P Restaurant (the “Simmons lawsuit”). That lawsuit in the 134th Judicial District Court of Dallas County has been stayed pending this appeal.
The Simmons sued Stoneleigh P on a negligence cause of action, alleging that Stoneleigh P knew or should have known that criminal activity had occurred in that vicinity, and that a foreseeable danger of criminal attack existed on the date of the occurrence. The Simmons alleged that the Stoneleigh P was negligent in failing to provide adequate security, in failing to warn the Simmons of the danger of criminal attack, in failing to properly inspect the premises in question, and in failing to provide adequate lighting in the parking lot where the incident occurred.
Fielding filed this declaratory judgment suit against Stoneleigh P to determine whether it was compelled, under its policy, to defend Stoneleigh P and to pay any judgment resulting from the Simmons lawsuit.
The policy contains an endorsement which reads as follows:
Not withstanding anything contained herein to the contrary, it is understood and agreed that this policy excludes claims arising out of assault and battery, whether caused by or at the direction of, the insured, his/her employee, patrons or any cause whatsoever.
THE CLAIMS
In its first point of error, Stoneleigh P asserts that the district court erred in granting summary judgment, effectively ruling that the Simmons claims are “claims arising out of assault and battery,” and thus excluded from coverage under the policy. Stoneleigh P contends that because the Simmons lawsuit alleged negligence on the part of Stoneleigh P rather than assault and battery that the suit is not a “claim arising out of assault and battery” and thus Fielding has an obligation to defend Stoneleigh P under the policy. Fielding responds by citing this court to
Tarrant County Ice Sports, Inc. v. Equitable Gen. Life Ins. Co. of Okla.,
A review of the facts in Tarrant County Ice Sports demonstrates a marked similarity to the facts in this case. There, several persons who had attended a hockey game sued the owner and operator (Ice Sports) of the hockey team after they were assaulted while leaving the coliseum. As a basis for their suit, they claimed that Ice Sports was negligent in selling twenty-five-cent beer during the game which contributed to the ensuing assault.
The policy which insured Ice Sports contained the following endorsement:
Notwithstanding anything contained herein to the contrary, it is understood and agreed in consideration of the premium charged, bodily injuries or death alleged to have been caused by assault and/or battery shall not be deemed an accident or occurrence under this Policy and no coverage shall apply hereunder.
We recognize that the exclusionary language of the policy before us differs from the language before our sister court, but this is a difference without distinction.
See Ross v. City of Minneapolis,
AMBIGUITY
In its second point of error, Stone-leigh P argues that by granting summary judgment the trial court must have determined that the endorsement was susceptible to one or more interpretations and then erred by not applying the interpretation that favored the insured. The essence of this point of error is that if the language of the endorsement is ambiguous, such ambiguity should have been resolved in favor of the insured.
Insurance policies are contracts and are controlled by rules of construction which are applicable to contracts generally.
Barnett v. Aetna Life Ins. Co.,
The judgment of the trial court is AFFIRMED.