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Insurer must defend patron’s suit vs. club

An insurance company that issued a policy to a nightclub operator must defend the policyholder in a personal injury action brought by an injured patron, a U.S. District Court judge has determined.

The insurer moved for summary judgment, arguing that it had no duty to defend because the policy contained an assault and battery exclusion.

But Chief Judge William E. Smith disagreed, finding that it was unclear whether the patron’s injury from falling down a flight of stairs was caused solely by the deliberate acts of one of the Rhode Island nightclub’s employees.

“[B]ased on [the patron]’s complaint and the facts presented at summary judgment, it remains possible that negligence caused [his] injury, keeping the door to coverage open,” the judge wrote.

The six-page decision is James River Insurance Co. v. Icon Corp., et al.

Boston lawyers Erik J. Tomberg and William T. Bogaert were counsel for the insurance company. From Rhode Island, Cranston attorney Gregory P. Piccirilli represented the nightclub operator, and Warwick’s John J. Bevilacqua appeared for the patron.

A fall down stairs

Plaintiff James River Insurance Co. issued a commercial general liability policy to ICON Corp., the operator of a nightclub known as the Colosseum in Providence. The policy contained clauses excluding coverage for claims arising from an “expected or intended injury” as well as “assault and battery.”

ICON was sued in state court on two separate bodily injury claims by nightclub patrons Tony Tran and Nicholas Rampone. The insurance company responded with a declaratory judgment action in federal court.

U.S. Magistrate Judge Lincoln D. Almond recommended that the insurer be awarded summary judgment on its request for a declaration that no duty to defend was owed in the Rampone case. When no timely objection was made to that recommendation, Smith upheld it.

Almond recommended that the insurer’s summary judgment motion be denied, however, as to the personal injury suit brought by Tran, the other patron, who asserted that ICON breached its duty to exercise reasonable care and caution when it, “by and through its agents, servants and employees, also negligently, carelessly, intentionally, recklessly and improperly caused and allowed physical injury.”

Tran reported to the Providence Police Department that “a large disturbance started inside the club and at some point a bouncer put him in a choke hold from behind and pushed him down a flight of stairs.”

In his answers to interrogatories, he stated, “As I was coming out of the bathroom, I noticed a fight had broken out. As I went back to the bar, a bouncer came from behind, choked me and threw me down the stairs.”

At his deposition, Tran recalled that “[t]he minute I walked there, it was surprise, I got, you know, choked from behind and lifted up and carried out.” He said he did not see the person who grabbed him because “[i]t happened so quick. He turned me, threw me down the stairs.”

Tran’s brothers, Johnny and Jones, witnessed the incident and confirmed his account. One claimed that, as they were walking out, they saw a bouncer holding their brother “and he just pushed him down the stairs, and we went over to see what really happened, and Tony was on the bottom of the stairs.”

The other said, “As we’re walking and getting rushed out the door, I noticed my brother getting dragged out by his neck. … As we were going, I seen the whole thing, Tony getting tossed down the stairs.”

ICON, however, pointed out that Tran’s brothers, who were present during the altercation, provided different descriptions of the bouncer and that the descriptions provided did not fit any of the bouncers working that day. ICON also argued that there was testimony from its president that Tran was the aggressor and tripped on a step as he was being escorted from the premises.

Duty to defend

“An insurer can halt its duty by showing as a matter of law that claims could never be within the bounds of coverage,” Smith noted.

The insurance company argued that the “evidence forecloses any chance that Tran could bring a non-excluded negligence claim against Icon.”

Smith found that assertion to be misplaced, however.

“As Magistrate Judge Almond correctly concluded, there is still uncertainty about how Tran sustained his injuries,” Smith said. “For instance, there remain questions as to whether Tran was thrown down the stairs or tripped.”

Furthermore, the judge stated, “if Tran was thrown down the stairs, there remain questions as to who threw him, a bouncer or someone else.”

The insurance company also contended that any negligence theory the patron could pursue “would still be excluded by the Policy’s expansive Assault and Battery Exclusion.”

Specifically, the insurer argued that the policy excludes all claims in which “intentional battery [allegations] are combined with allegations of negligence, including negligent employment and negligent training.”

Smith found that, even assuming arguendo that the policy exclusion was as broad as the insurer asserted, the patron’s potential negligence claims still fell outside of it.

The insurer’s argument assumes a battery occurred, the judge pointed out.

“However, as noted above, this remains an open question; a battery, negligent conduct, or a combination of the two could have caused Tran’s injuries,” he said. “The facts of this case potentially could fall within the scope of coverage and, thus, James River has not demonstrated that, as a matter of law, it has no duty to defend Icon.”

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