8 Fla. L. Weekly Supp. 363a
Insurance — General commercial liability — Exclusions — Insurer had no duty to defend and indemnify insured where policy included assault and battery exclusion, regardless of fact that plaintiff who was injured in assault on insured’s premises pled in negligence, asserting that insured failed to provide adequate security — Insurer’s motion for summary judgment granted
THE PARADIGM INSURANCE COMPANY, Plaintiff, v. CELESTIAL CLUB, INC. d/b/a ZUMA BEACH CLUB, a Florida corporation; and TARA DeLALLA, an individual, Defendants. Circuit Court, 9th Judicial Circuit in and for Orange County. Case No. CI99-9181, Division 32. March 2, 2001. James C. Hauser, Judge. Counsel: Don H. Lester, Lester and Mitchell, P.A., Jacksonville. Victor L. Chapman, Barrett, Chapman and Ruta, P.A., Orlando. Deborah J. Blue, Dickinson and Gibbons, P.A., Sarasota.
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
THIS MATTER came before the Court for consideration of Plaintiff The Paradigm Insurance Company’s (Paradigm) Motion for Summary Judgment filed on October 11, 2000, pursuant to Florida Rule of Civil Procedure 1.510. On November 30, 2000, a hearing was held on the Motion. The Court, having considered the same, and being otherwise fully advised in the premises, finds as follows.Procedural Background
On November 9, 1999, Paradigm filed its Complaint seeking declaratory judgment pursuant Chapter 86, Florida Statutes. Paradigm sought a declaration: (1) that it has no duty to indemnify and defend Defendant Celestial Club, Inc. (Celestial) or to pay any judgment; (2) that Celestial and Defendant Tara DeLalla (Ms. DeLalla) have no rights against Paradigm by reason of the insurance policy; and (3) awarding it costs. Paradigm relies specifically upon the assault and battery exclusion section of the commercial liability insurance policy, which it issued to Celestial. The assault and battery exclusion, in pertinent part, states that coverage is excluded for
a. assault or battery committed by you, any of your “executive officers”, “employees”, “leased workers” or “temporary workers”, or by any other person, whether or not committed by you or at your direction;
b. the failure to suppress or prevent any assault or battery of any person:
(1) on premises you own or rent; or,
(2) on ways next to premises you own or rent.
Facts
The related underlying action is that Ms. DeLalla is seeking damages in excess of $15,000 for injuries received on September 30, 1996. It is not facutally disputed that Ms. DeLalla was hit in the face by Sean G. Erwin (Mr. Erwin), who intended to hit another man in the bar and missed, hitting Ms. DeLalla. The blow broke Ms. DeLalla’s nose, blackened her eye, and gave her a concussion. Ms. DeLalla’s complaint is pled in negligence and asserts that the attack by Mr. Erwin was foreseeable by Celestial, that Celestial failed to provide adequate security and reasonably safe premises for its commercial invitees, and therefore, that Celestial is liable for Ms. DeLalla’s injuries.Analysis
Paradigm contends that under the terms of the assault and battery exclusion in Celestial’s insurance policy, Ms. DeLalla’s claim is excluded from coverage and Paradigm has no duty to defend or indemnify. The Court agrees. The fact that Ms. DeLalla’s claim is pled in negligence does not negate the fact that the incident complained of was an intentional tort. While Mr. Erwin may not have intended to strike Ms. DeLalla, he did intend to strike another man and when his blow missed and he hit Ms. DeLalla, his intent was transferred from his intended victim to Ms. DeLalla. The doctrine of “transferred intent” may be stated as follows.
If the defendant shoots or strikes at A, intending to wound or kill him, and unforeseeably hits B instead, he is held liable to B for an intentional tort. The intent to commit a battery upon A is pieced together with the resulting injury to B; it is “transferred” from A to B. “The intention follows the bullet.”
. . . His act is characterized as “wrongful,” and his fault is regarded as absolute toward all the world, rather than relative to any one person. Having departed from the social standard of conduct, he is liable for the harm which follows from his act, although he did not intend it.
City of Winter Haven v. Allen, 541 So. 2d 128, 138 (Fla. 2d DCA 1989) (quoting W.W. Prosser, The Law of Torts, at 31-33 (4th ed. 1971) (footnotes omitted)). See also Allstate Insurance Company v. Conde, 595 So. 2d 1005 (Fla. 5th DCA 1992) (Griffin, J., concurring specially) (stating that “[g]iven the undisputed facts of this case, absent considerations of insurance . . . , it would never occur to a lawyer to plead this plainly intentional tort as negligence”).
Ms. DeLalla’s injuries arose from Mr. Erwin’s commission of the intentional tort of assault and battery. Under the terms of Celestial’s insurance policy, coverage is excluded for the intentional tort of assault and battery. For purposes of insurance coverage, the wording of Ms. DeLalla’s pleading cannot convert Mr. Erwin’s intentional tort into Celestial’s negligence and, therefore, coverage does not lie.
In the Florida case most directly on point, the Fifth District Court of Appeal agreeing “with the overwhelming weight of the authority in jurisdictions that have considered this issue,” held that an assault and battery exclusion excluded coverage, where the underlying claim was negligence for failing to provide adequate security. Britamco Underwriter’s v. Zuma Corp., 576 So. 2d 965 (Fla. 5th DCA 1991). In Britamco, a patron was injured when he was beaten by other patrons of a bar. The relevant exclusion clause in that case stated that
it is understood and agreed that this policy excludes claims arising out of:
Assault & Battery, whether caused by or at the instructions of, or at the direction of, the insured, his employees, patrons or any causes whatsoever . . . .
Id. at 965. The Britamco court held the policy excluded assault and battery. Therefore, in the case at bar, as in Britamco, this is a claim which clearly arises out of the underlying assault and battery, regardless of the legal theory advanced by Ms. DeLalla or Celestial.
More recently, the Third District Court of Appeal agreed with the holding in Britamco, and held that where a bar patron had been hit in the head by a thrown bottle during a fight in which he was not involved and did not know those who were, coverage was excluded under the terms of an assault and battery exclusion. Miami Beach Entertainment v. First Oak Brook Corp., 682 So. 2d 161, 162 (Fla. 3d DCA 1996) (holding that the underlying conduct which gave rise to the victim’s injury was “an excluded `harmful and offensive contact’ . . . [and that although] the complaint was couched in terms of the bar owner’s negligence in failing to keep control over its patrons, for purposes of determining insurance coverage, the injuries arose from the assault and battery”). Additionally, in Perrine Food Retailers v. Odyssey Re (London) Ltd., 721 So. 2d 402, 404 (Fla. 3d DCA 1998) the court found that “[a]n assault and battery exclusion in a liability policy precludes coverage for the negligence of the insured which arises as a result of the assault and battery.”
A Georgia court reviewed an assault and battery exclusion containing virtually the same language as in the case at bar. Littrell v. Colony Ins., 492 S.E.2d 299 (Ga. App. 1997). In Littrell, the language in the assault and battery exclusion excluded
claims for bodily injury arising from:
A) Assault and Battery committed by any insured, any employee of any insured, or any other person, whether committed by or at the direction of any insured.
B) The failure to suppress or prevent assault and battery by any person in (A) above.
Id. at 300. The Georgia court held that claims of negligence for failure to take preventative measures aimed at protecting bar patrons will not lie where the underlying cause of action was plainly an assault and battery.
Based on the foregoing, under the terms of the assault and battery exclusion in Celestial’s insurance policy, Ms. DeLalla’s claim is excluded from coverage, and Paradigm has no duty to defend or indemnify in this case.
Therefore, it is hereby ORDERED AND ADJUDGED that Paradigm Insurance Company’s Motion for Summary Judgment is GRANTED.
This Court specifically retains jurisdiction to enter judgment on Plaintiff’s claim for costs and such other relief which is just and appropriate.
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