Tower Insurance v. Old Northern Blvd. Restaurant Corp.Tower Insurance v. Old Northern Blvd. Restaurant Corp.
—Order, Supreme Court, New York County (Ira Gammerman, J.), entered May 9, 1997, which denied plaintiff’s motion for summary judgment, unanimously reversed, on the law, without costs or disbursements, and plaintiff’s motion for summary judgment for a declaration that it has no duty or obligation to defend or indemnify defendant Old Northern Blvd. Restaurant Corp., doing business as Pat O’Brien’s, in an underlying personal injury action granted.
The standard general liability insurance policy issued by plaintiff insurer to defendant Old Northern Blvd. Restaurant Corp. contained an endorsement that excluded coverage for personal injury “arising from [a]ssault and battery committed by an insured, any employee of any insured, or any other person, whether committed by or at the direction of the insured.” Plaintiff asserts that this endorsement relieves it of the duty to defend and indemnify its insured in the underlying action in which the plaintiff therein, Jason McLane, also a defendant in this action, seeks recovery for injuries allegedly sustained outside defendant insured’s bar. According to McLane’s description of the incident, after he and his friends had been forced to leave the bar, one of the bouncers overheard a
To establish a civil battery a plaintiff need only prove intentional physical contact by defendant without plaintiffs consent; the injury may be unintended, accidental or unforeseen. (Villanueva v Comparetto,