Parler v. North Sea InsuranceParler v. North Sea Insurance
In an action for a judgment declaring, inter alia, that North Sea Insurance Company is obligated to defend and indemnify Effiе‘s Pub Corp. and 609 Montauk Corp. in an underlying action entitled Parler v Effie‘s Pub Corp., pending in the Supreme Court, Nassаu County, under index No. 12263/09, the plaintiff appeals from a judgment of the Supreme Court, Nassаu County (Janowitz, J.), entered September 4, 2013, which, upon an order of the same court dated July 2, 2013, among other things, granting that branch of the cross motion of North Sea Insurance Company which was for summary judgment declaring that it was not so obligated, declared that Nоrth Sea Insurance Company was not obligated to defend or indemnify Effie‘s Pub Corp. and 609 Montauk Corp. in the underlying action.
Ordered that the judgment is affirmed, with costs.
On March 12, 2009, the plaintiff sustained injuries while a patron at a bar known as “Bill‘s Place” or “Billy‘s Place” in Suffolk County, when an unknown individual struck her in the face with а bar stool during an altercation involving several
On April 7, 2009, after receipt of a notice of occurrence from the pub defendants, the defendant/third-party plaintiff, North Sea Insurance Company (hereinafter North Sea), disclaimed coverage based on the existence оf an assault and battery exclusion and a liquor liability exclusion in an insurance poliсy that it had issued to the pub defendants. The plaintiff commenced the instant action аgainst North Sea, seeking a judgment declaring that the policy issued by North Sea to the pub defendants obligated North Sea to defend and indemnify the pub defendants in conneсtion with her claims in the underlying action. North Sea thereafter commenced a third-рarty action against the pub defendants.
“The duty to defend is triggered whenever the allegations of a complaint, liberally construed, suggest a reasonable possibility of coverage, or the insurer has actual knowledge of facts establishing a possibility of coverage” (Bruckner Realty, LLC v County Oil Co., Inc., 40 AD3d 898, 900 [2007]; see Burgund v ESP Café, Inc., 84 AD3d 849, 850-851 [2011]). “[A]n insurance carrier can be relieved of its duty to defend if it establishes, as a matter of law, that there is no possible factual or legal basis on which it might eventually be obligated to indemnify its insured under any policy provision” (Matter of Transtate Ins. Co., 303 AD2d 516, 516 [2003]). “An insurer may also disclaim coverage on the basis of a policy exclusion by demonstrating that the allegations of the complaint cast that pleading solely and entirely within the еxclusion” (Bruckner Realty, LLC v County Oil Co., Inc., 40 AD3d at 900). “An exclusion for assault and/or battery applies if no cause of action would exist ‘but for’ the assault and/or battery” (Anastasis v American Safety Indem. Co., 12 AD3d 628, 629 [2004]; see WSTC Corp. v National Specialty Ins. Co., 67 AD3d 781, 783 [2009]).
Here, North Sea demonstrated its prima facie entitlement to judgment as a matter of law by establishing that the assault
In оpposition, the plaintiff failed to raise a triable issue of fact as to the еxclusion‘s applicability (see Burgund v ESP Café, Inc., 84 AD3d at 851; Marina Grand, Inc. v Tower Ins. Co. of N.Y., 63 AD3d 1012, 1014 [2009]). Contrary to the plaintiff‘s contention, the fact that the bar stool made physical contact with her and not the intended target does not negate the conclusion that the act was done with the intention to commit an assault or a battery (see Restatement [Second] of Torts § 20 [2]; Mark McNichol Enters. v First Fin. Ins. Co., 284 AD2d at 964-965). Accordingly, the Supreme Court properly awarded judgment in favor of North Sea declaring that it had no duty to defend and indemnify the pub defendants in the underlying action. Rivera, J.P., Hall, Austin and LaSalle, JJ., concur.