Dennis PROSHEE
v.
SHREE, INC. d/b/a Southerner Motel.
Court of Appeal of Louisiana, Third Circuit.
*940 Jacques M. Roy, Alexandria, LA, for Plaintiffs-Appellants, Dennis Proshee.
Victor H. Sooter, Elizabeth Brown Hilburn, Alexandria, LA, for Defendant-Appellant, Shree, Inc. d/b/a Southerner Motel.
Matthew J. Ungarino, David I. Bordelon, Metairie, LA, for Defendant-Appellee, Century Surety Company.
Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
PAINTER, Judge.
Hotel patron who was allegedly beaten and robbed by unknown assailants in the hotel parking lot brought suit against the hotel. The insurer of the hotel intervened and filed a Motion for Summary Judgment based on the assault and battery exclusion contained in its policy. The trial court granted summary judgment in favor of the insurer and both plaintiff and the insured appealed. For the reasons that follow, we affirm.
Facts and Procedural History
This is an insurance coverage issue arising out of the claims of Plaintiff, Dennis Proshee, against Shree, Inc. d/b/a Southerner Motel with respect to injuries allegedly sustained by Proshee as a result of an assault and battery upon Proshee by unknown assailants that occurred outside of Proshee's room in the parking lot at the Southerner Motel on September 20, 2002. Proshee alleged the following acts of negligence by Shree: (1) failure to provide adequate security; (2) failure to provide adequate lighting; (3) failure to observe what a reasonably prudent business entity should have or could have observed; (4) failure to notice dangerousness of premises; and (5) other acts of negligence to be proven at trial.
At the time of this incident, Century Surety Company had in effect a policy of insurance with the Southerner Motel as a named insured. Shree filed a Third-Party Demand against Century seeking indemnity from Century should it be held liable for damages to Proshee and to recover all attorney's fees and defense costs incurred by virtue of Century's failure to defend Shree. Century answered and filed a Motion for Summary Judgment based on an *941 asserted lack of coverage by virtue of several policy exclusions, including one exclusion for failure to maintain secure or safe premises and one exclusion for assault and battery.
The relevant exclusions read as follows:
SPECIAL EXCLUSIONS AND LIMITATIONS ENDORSEMENTS
9. Failure to Maintain Secure of Safe Premises
Claims arising out of, caused by, resulting from, or alleging, in whole or in part, any insured's failure to thwart, foil, avoid, hinder, stop, lessen or prevent any attack, fight, assault, theft, or crime. The Company has no obligation to defend or indemnify any such claims. This exclusion applies to all individuals or entities qualifying as an insured under Section II Who Is An Insured, including any and all Additional Insureds."
EXCLUSION ASSAULT AND BATTERY
1. This insurance does not apply to "bodily injury," "property damage," "personal injury," or "advertising injury" arising out of or resulting from:
a. any actual, threatened or alleged assault or battery;
b. the failure of any insured or anyone else for whom any insured is or could be held legally liable to prevent or suppress any assault or battery;
c. the failure of any insured or anyone else for whom any insured is or could be held legally liable to render or secure medical treatment necessitated by any assault or battery;
d. the rendering of medical treatment by any insured or anyone else for whom any insured is or could be held legally liable that was necessitated by any assault or battery;
e. the negligent:
(i) employment;
(ii) investigation;
(iii) supervision;
(iv) training;
(v) retention;
of a person for whom any insured is or ever was legally responsible and whose conduct would be excluded by 1.(a), (b), (c), or (d) above;
(f) any other cause of action or claim arising out of or as a result of 1. (a), (b), (c), (d), or (e) above.
2. We shall have no duty to defend or indemnify any claim, demand, suit, action, litigation, arbitration, alternative dispute resolution or other judicial or administrative proceeding seeking damages, equitable relief, injunctive relief, or administrative relief where:
(a) any actual or alleged injury arises out of any combination of an assault or battery-related cause and a non-assault or battery-related cause.
(b) any actual or alleged injury arises out of a chain of events which includes assault or battery, regardless of whether the assault or battery is the initial precipitating event or a substantial cause of injury.
(c) any actual or alleged injury arises out of assault or battery as a concurrent cause of injury, regardless of whether the assault or battery is the proximate cause of injury.
3. For the purposes of this endorsement the words assault and battery *942 are intended to include, but are not limited to, sexual assault.
Based on the finding that "[t]he specific exclusions as to assault and battery were specifically spelled out and at this point not subject to any further interpretation as to the exclusion that it would be covered or a lack thereof," the trial judge granted Century's motion. This devolutive appeal by Shree and Proshee followed.
Discussion
Appellate courts review summary judgments de novo, under the same criteria which govern the district court's consideration of the appropriateness of summary judgment. Potter v. First Fed. Sav. & Loan Ass'n of Scotlandville,
Ambiguous terms in an insurance contract are construed liberally in favor of the person claiming coverage. Westerfield v. LaFleur,
The interpretation of an insurance policy is usually a legal question that can be properly resolved by a motion for summary judgment. Miller v. Superior Shipyard and Fabrication, Inc., 01-2907, p. 4 (La.App. 1 Cir. 08/20/03),
In this case, the first issue is whether the assault and battery exclusion contained in Century's insurance policy is ambiguous. Shree and Proshee assert that the policy language is ambiguous because it states only "any actual, threatened or alleged assault or battery" and is silent as to whether the assault or battery must be committed by the insured or any third party. Century, of course, maintains that its assault and battery exclusion is clear and unambiguous.
In Alexander v. Barflies, Inc., 96-2177, p. 2 (La.App. 4 Cir. 01/15/97),
"Any causes whatsoever" is as clear and unambiguous as it is possible to be. Its plain and literal meaning leads to no "absurd consequences." The same cannot be said of the interpretation urged by the plaintiff and adopted in the reasoning of the trial court which leads to the illogical result of a premises policy excluding coverage for premises assault and battery, while simultaneously and incongruously providing coverage for off premises assault and battery perpetrated by third parties having no connection with Barflies and its patrons.
Id. at 605.
"Any actual, threatened or alleged assault or battery" as contained in the policy under consideration in this case is as clear and unambiguous as it is possible to be for the same reasons as "any causes whatsoever." "Any actual, threatened or alleged assault or battery" means just what it says any assault or battery is excluded regardless of who perpetrated it.
In Jackson v. Rogers,
This insurance does not apply to:
a. "Bodily injury" or "property damage":
* * *
2. Arising out of assault or battery, or out of any act or omission in connection with the prevention or suppression of an assault or battery.
Id. at 443.
Like the policy at issue herein, this provision did not make any mention of who had to commit the assault or battery in order for it to be included within the exclusion. The first circuit expressly found that the above-quoted assault and battery exclusion was clear and unambiguous. While there was some question as to how Jackson's alleged injuries arose, the first circuit found that this dispute was of no moment to the coverage issue because whether it arose from the altercation with the business' employee or from the attempted suppression of the battery by the business' employee, liability would be excluded by the clear provisions of the policy.
Having determined that the language of the exclusion is clear and unambiguous, the second inquiry is whether the exclusion applies to the facts of this case. Shree argues that the assault and battery exclusion is inapplicable because it contains the ambiguities discussed herein above. However, Shree attempts to distinguish Jackson on the grounds that the case involved acts by the named insured or persons for whom the named insured was responsible. This ignores the fact that the plaintiff in Jackson also filed suit against the unknown assailant. Here, the exclusion applies to the facts of the case since Proshee alleges "bodily injury" and "personal injury" arising out of "any actual, threatened or alleged assault or battery."
The third inquiry is whether there are any genuine issues of material fact that preclude the issuance of summary judgment in this case. As to this inquiry, Shree and Proshee allege other grounds supporting denial of Century's Motion for Summary Judgment. Shree contends that one might reasonably infer from Proshee's own handwritten occupancy card that his *944 allegations are not truthful with respect to his ownership of the car and that his injuries did not even occur on the premises. Although this is a disputed fact, it is not material to the determination of coverage under the Century policy. The case at bar can be distinguished from Lawrence v. Security Professionals, 32,325 (La.App. 2 Cir. 08/18/99),
In the case at bar, while there may be some dispute as to whether or not the plaintiff was even injured, there is no dispute that if he was injured, it was by an intentional act and that this act is included within the assault and battery exclusion.
Proshee argues that he was robbed as well and that this is a separate damage from the severe physical beating he suffered. Proshee also attempts to frame his case as a premises defect case (i.e., the lack of security in an area with a history of criminal activity) in an attempt to have the assault and battery exclusion deemed inapplicable.
The arguments by Proshee are disingenuous at best. The exclusion clearly extends to "the failure of any insured or anyone else for whom any insured is or could be held legally liable to prevent or suppress any assault or battery." [See Section (1)(b).] And, even if one finds that the robbery or failure to prevent the assault or battery is a non-assault or battery related cause, the policy exclusion clearly and unambiguously states that Century shall have no duty to defend any claim where "any actual or alleged injury arises out of any combination of an assault or battery-related cause and a non-assault or battery-related cause." [See Section (2)(a).] In such case, Maise v. Cat's Meow, Inc.,
Furthermore, see Washington v. Spurlock,
The final issue in this case is whether Century has a duty to defend Shree. In brief, counsel for Shree alleges that Century owes defense and indemnity to Shree. However, this issue is not specifically briefed and is merely raised in a conclusory statement in the "Issues on Appeal" section of Shree's brief which states that if the exclusions are inapplicable, then Century owes defense and indemnity.
Insofar as the judgment dismisses Shree's claims against Century, this is correct. Although the insurer's duty to defend is broader than its liability for damages, Century had no duty to defend in this case because of the Special Exclusions and Limitations Endorsements section dealing with failure to maintain safe or secure premises and Section 2 of the Assault and Battery Exclusion. In Guidry v. Deny,
Decree
For the foregoing reasons, the judgment of the trial court granting summary judgment to Century Surety Company is affirmed with all costs of this appeal to be divided equally between both appellants.
AFFIRMED.
NOTES
Notes
[1] The First Circuit has said that by definition a robbery necessarily encompasses either a battery (force) or an assault (intimidation). See Law v. B.Z. Enterprise One, Inc.,