On February 19, 2019, Decide William Younger of america District Courtroom sitting in Boston entered abstract judgment towards a dance membership’s bouncer’s go well with towards Navigators Specialty Insurance coverage Firm (“Navigators”). The bouncer’s go well with sought a ruling that Navigators had an obligation to defend and indemnify him beneath his employer’s legal responsibility coverage in two civil fits arising out of alleged assault and batteries involving an altercation with two patrons of his employer’s membership.
The choice, David Cohne v. Navigators Specialty Insurance coverage Firm, turned on the definition of an “Insured” vs. a “Named Insured” and a battle between an endorsement and an exception to the anticipated or meant damage exclusion for “‘bodily damage’ ensuing from using affordable pressure to guard individuals or property.”
- 1 Try and get again into the Membership results in an altercation
- 2 The lawsuits towards Mr. Cohne and the Membership
- 3 Abstract judgment for Navigators
- 4 Courtroom first guidelines assault was inside the scope of employment and for the good thing about the Membership
- 5 Mr. Cohne not being a Named Insured sinks his protection declare
- 6 Courtroom enters judgment declaring Navigators has no obligation to defend or indemnify
Try and get again into the Membership results in an altercation
On August 19, 2014, David Cohne (“Mr. Cohne”) was employed as a bouncer/doorman at an institution referred to as the “Royale Night time Membership” on Tremont Road in Boston (“Membership”). At roughly 11:00 p.m. that night Kenneth Yianacopolus (“Mr. Yianacopolus”) together with his buddies arrived on the Membership. He consumed alcohol whereas within the Membership and “round closing time,” left the Membership and went out onto the sidewalk outdoors the Membership.
Whereas standing outdoors, Mr. Yianacopolus observed a feminine patron with whom he had spoken earlier within the night nonetheless contained in the Membership. When Mr. Yianacopolus tried to re-enter the Membership to talk together with her, Mr. Yianacopolus claimed that Mr. Cohne “instantly,” “with none warning,” and “with out provocation” dedicated an assault and battery towards him.
“A short while later,” Mr. Yianacopolus alleged, Mr. Cohne adopted him “out onto the road and dedicated” a second assault and battery towards him, “utilizing a baton as a weapon.” Mr. Yianacopolus alleged that Mr. Cohne was “always. .. appearing inside the scope of his employment duties” and “beneath the course and management” of his employer.
For Mr. Cohne’s half, he claimed that the incident started by him verbally telling Mr. Yianacopolus to not enter, however Mr. Yianacopolus “proceeded to throw his shoulder into [him] whereas making threatening remarks.” Mr. Cohne claimed that he then “made bodily contact” with Mr. Yianacopolus in a continued effort to stop him from going inside, after which “Mr. Yianacopolus subsequently threw a punch at [him].” Mr. Cohne said that at that time he “feared for [his] personal private security,” so he once more “made bodily contact with [Mr. Yianacopolus].”
The lawsuits towards Mr. Cohne and the Membership
In November 2016, Mr. Yianacopolus sued Mr. Cohne for negligence and assault and battery declare and the Membership for its obligation for Mr. Cohne’s alleged actions.
In his negligence declare, Yianacopolus alleged that Mr. Cohne’s breach of his obligation to make use of affordable care as a doorman in failing to take steps that a affordable doorman/bouncer would have taken to stop Mr. Yianacopolus from re-entering the bar, corresponding to offering a verbal warning; and utilizing extreme drive in stopping him from re-entering the bar.
In July 2017, one other patron who was an acquaintance of Mr. Yianacopolus and current with Mr. Yianacopolus on August 19, 2014, on the Membership filed go well with towards Mr. Cohne and the Membership. He alleged that Mr. Cohne whereas appearing as a bouncer of the Membership “within the due course of his employment…with out provocation, proper, or purpose, struck and beat [him] with a metallic baton and induced [him] extreme bodily accidents.” The grievance towards Mr. Cohne consists of one rely of “Negligent and Extreme Drive,” which alleged that Mr. Cohne “negligently prompted and did trigger (sic) a dangerous contact with [his] individual.”
Mr. Cohne via counsel tendered the protection and indemnity of Mr. Yianacopolus lawsuit and the opposite patron’s lawsuit to Navigators in April and August of 2017, respectively. Navigators denied Mr. Cohne any protection or indemnity beneath the Membership’s legal responsibility coverage.
In response, Mr. Cohne filed a declaratory judgment towards Navigators within the Massachusetts Superior Courtroom. He alleged Navigators had did not defend him and thereby breached its insurance coverage contract, breached its covenant of excellent religion and truthful dealing, and violated the unfair declare apply act, M.G.L. c. 93A and M.G.L. c. 176D.
Navigators eliminated the state courtroom go well with to the federal district courtroom in Boston underneath that courtroom’s variety jurisdiction for fits between residents of various states. On this case, Mr. Cohne being a resident of Massachusetts and Navigators being a New York company.
After a movement for judgment on the pleadings the district courtroom denied with out prejudice and a few discovery, Mr. Cohne moved for abstract judgment alleging there have been no disputed points of fabric details and that he was entitled to abstract judgment as a matter of regulation.
Navigators opposed the movement however didn’t file a cross-motion for abstract judgment. The Decide agreed with Mr. Cohne’s movement that there have been no points of fabric details, however he dominated that Navigator’s and never Mr. Cohne was the half entitled to abstract judgment.
Courtroom first guidelines assault was inside the scope of employment and for the good thing about the Membership
Whereas Navigator’s coverage offered for the Membership’s staff as insureds, it offered protection to the workers “just for acts inside the scope of [their] employment by [the Club] or whereas performing duties associated to the conduct of [the Club].”
Navigators argued to the Courtroom that Mr. Cohne’s assault and battery couldn’t be associated to the Membership’s enterprise, and subsequently, Mr. Cohne was not an insured.
The Courtroom in response to this argument famous that underneath Massachusetts regulation, an worker’s conduct falls inside the scope of his employment if it: (1) “is of the type he’s employed to carry out”; (2) “happens considerably inside the approved time and area limits”; and (three) “is motivated, at the least partially, by a function to serve the employer.”
The Courtroom addressed every of the weather, in flip, regarding whether or not the assault was inside the scope of Mr. Cohne’s employment concluding:
- The alleged assault was dedicated when Mr. Cohne was performing his obligation as a bouncer on the Membership’s door to guard the security of its patrons, and thus his conduct met the primary check. He was doing the work he was employed to carry out.
- The second situation was glad as a result of the alleged assault occurred on the Membership the place he was employed and through his work shift.
- The third situation additionally utilized as a result of the alleged assault occurred when Mr. Yianacopolus demanding entry into the Membership interfered with Mr. Cohne’s capability to carry out his obligation to guard the Membership and stop unauthorized entry. Mr. Cohne’s motion was in direct response to this interference.
In consequence, the Courtroom discovered that Mr. Cohne acted inside the scope of his employment when committing the alleged assault and was “an ‘insured’ beneath the coverage as a result of he acted inside the scope of his employment when committing the primary alleged assault.”
The Courtroom finds any protection for Mr. Cohne excluded by an assault and battery endorsement
The Membership’s coverage had the usual insuring settlement with a nonstandard exception to the anticipated or meant damage exclusion.
The insuring settlement offered:
We can pay these sums that the insured turns into legally obligated to pay as damages due to “bodily damage” or “property injury” to which this insurance coverage applies. We could have the correct and obligation to defend the insured towards any “go well with” in search of these damages. Nevertheless, we may have no obligation to defend the insured towards any “go well with” in search of damages for “bodily damage” or “property injury” to which this insurance coverage doesn’t apply…”
The primary coverage exclusion utilized to anticipated or meant accidents and offered the protection didn’t apply to:
“Bodily damage” or “property injury” anticipated or meant from the standpoint of the insured.
Ordinarily, the primary sentence would function as a attainable bar to an intentional act comparable to Mr. Cohne’s assault. Nevertheless, the exclusion had a second sentence which had an exception that said:
“This exclusion doesn’t apply to ‘bodily damage’ ensuing from using affordable drive to guard individuals or property.”
If the coverage had no further endorsements, Mr. Cohne would seemingly have had no less than protection protection.
Nevertheless, the coverage additionally had a broad endorsement excluding “bodily damage” or “private damage” arising from:
- A. assault and/or battery dedicated or alleged to have been dedicated by any individual; or
* * *
any act or omission related immediately or not directly with the prevention or suppression of any act indicated in [item A] …together with the safety of individuals or property, whether or not brought on by or on the instigation or course of any insured, an insured’s worker, an insured’s patrons or friends, or volunteers working for or on behalf of an insured, or some other individual.
Whereas this endorsement appeared to offer a blanket exclusion for assault and battery, the second a part of the endorsement offered a sublimit for simply such claims stating:
- II. However the foregoing, we will pay as much as the next quantities you turn out to be obligated to pay for all damages and declare bills which end result from claims or “fits” based mostly on allegations of any of the acts or omissions in merchandise I above.
$250,000 anybody declare or go well with.
$250,000 combination for the coverage interval.
Mr. Cohne not being a Named Insured sinks his protection declare
Mr. Cohne argued that: (1) he was an “an insured” beneath the coverage; (2) the 2 underlying complaints state negligence claims coated by the coverage; and that (three) he certified as a “Named Insured,” so even when the coverage wouldn’t ordinarily cowl the assault allegations within the lawsuits towards him, they’re coated, at the very least as much as $250,000 by the second a part of the assault and battery endorsement.
The Decide dominated based mostly on this endorsement’s phrases that the coverage excluded from protection “bodily damage” arising from “assault and/or battery dedicated or alleged to have been dedicated by any individual.”
The Courtroom discovered this exclusion unambiguously utilized, as its phrases included any assault and battery claims “whatever the authorized principle or foundation upon which the insured is alleged to be legally liable or accountable, in entire or partially, for any Damages arising out of assault [or] battery,. .. together with however not restricted to assertions of improper or negligent hiring, employment or supervision, failure to guard the opposite social gathering, [or] failure to stop the assault [or] battery.”
As to the second a part of the endorsement, which offered that Navigators:
shall pay as much as the next quantities you grow to be obligated to pay for all damages and declare bills which end result from claims or ‘fits’ based mostly on allegation of any of the acts or omissions” [of assault and battery].” (Emphasis added).
The Courtroom discovered that this exception to the exclusion turned on the which means of the time period, “You.”
The Decide dominated that the coverage’s definition utilized which said:
All through this coverage the phrases “you” and “your” seek advice from the Named Insured proven within the Declarations, and some other individual or group qualifying as a Named Insured underneath this coverage.”
The Decide dominated that though Mr. Cohne certified as an “insured” beneath the coverage, and never a Named Insured.
To the Courtroom, the second a part of the endorsement was unambiguous. The Membership—the Named Insured underneath the coverage—would have protection discovered on the second a part of the endorsement, as much as the mixture sublimit of $250,000, if it have been discovered vicariously liable in a lawsuit based mostly on allegations of assault and battery.
Nevertheless, the Decide discovered that Mr. Cohne, who was not a Named Insured since he was not a “you” as that’s outlined within the coverage—couldn’t avail himself of the restricted protection offered by the second part of the endorsement. With out that designation of Mr. Cohne as a Named Insured, the primary a part of the endorsement, within the Decide’s opinion, operated as an entire exclusion for the assault and battery fits for which Mr. Cohne was looking for protection.
The Courtroom ended its choice with the ruling in favor of Navigators stating:
“For the foregoing causes, this Courtroom DENIES Cohne’s movement for abstract judgment… and declares that Navigators has no obligation to defend Cohen in both the Mr. Yianacopolus or the [other] motion. (Emphasis in unique).