DBTC Law Firm


Dancing to the Beat of Your Own Drum: Refining the Definitions of Assault and Battery

What happens when a nightclub is sued by a patron who was accidentally injured while he was being forcibly removed from the nightclub? One would expect that an insurance company would enter the picture to pay for the legal defense of the nightclub and for any judgment, if one is issued against the insured nightclub. However, that is not always the case.

The recent case of E B Mgmt. Co., LLC v. Houston Specialty Ins. Co., 2019 Ark. App. 294 (Ark. Ct. App. 2019), dealt with one such situation. In E B Management, a patron of a nightclub who wanted to play a drum accompaniment to the piano music paid the piano player $20.00 for the privilege. Once the music started and it was clear that the patron could not keep a beat on the drums, the piano player stopped the music. Incensed, the patron demanded the return of his $20.00, but the piano player refused. The nightclub’s bouncer then promptly removed the patron from the stage and threw him out the door of the establishment, causing the patron to hit his head on the concrete curb. A little more than a year later, the patron filed a negligence lawsuit against the nightclub and the bouncer.

While the nightclub’s commercial insurance policy had coverage limits of $1,000,000.00, it had a special exclusion that only allowed coverage of $100,000.00, including the costs of a legal defense, for any “assault and battery incident[s].” Claiming the negligence lawsuit was actually based upon an “assault and battery incident,” the insurance company refused to cover any legal fees, settlement amount, or judgment which commutatively exceeded $100,000.00. The nightclub, on the other hand, relied upon the allegations in the Complaint, which specifically claimed that the injury was caused by negligence rather than by an intent to commit harm or assault the patron. The determination of coverage was thus dependent upon whether the trial court found the events set forth in the Complaint to be “an assault and battery incident.”

Despite the fact that the terms “assault” and “battery” are well known legal terms and necessarily require an element of intent, the insurance policy at issue in E B Management utilized a unique definition of “assault and battery” defining it as any harmful or offensive contact, regardless of intent. In evaluating these competing definitions of an “assault and battery,” the trial court ignored the theory of liability alleged in the Complaint, which did not include any alleged intent, and instead focused on its interpretation of facts associated with the actions leading to the plaintiff’s injury. Applying the unique contract definition of “assault and battery” to those facts, the trial court concluded that the “assault and battery” limitation applied.

In spite of the dissenting judges’ strongly worded conclusion that the trial court had improperly “adjudicate[d] facts to justify its decision,” the majority of the Arkansas Court of Appeals affirmed the trial court’s ruling in favor of the insurance company and its limitation of coverage. In essence, the Arkansas Court of Appeals approved the insurance company’s contract definition of “assault and battery”in such a way as to deny full coverage and a legal defense to the nightclub.

There is a lesson to be learned from this situation. It is essential that businesses be familiar with the language of any liability insurance policy that they may have, paying particular attention to any defined terms in the policy that stray from the commonly understood meanings of the words utilized.