PENNSYLVANIA RECORD

An insurance company who insures a bar and restaurant that is currently embroiled in litigation arising from an assault and battery incident in which a business patron became seriously injured after a scuffle with fellow restaurant-goers only has to cover the restaurant in a limited capacity, and does not have to indemnify the business for any punitive damages that may be awarded in the case, a state trial judge has ruled.

Philadelphia Common Pleas Court Judge Patricia A. McInerney granted in a Feb. 15 order NIC Insurance Company’s motion for summary judgment in a case arising out of an underlying civil action, Dzarnyi Pukuma v. PJP Consulting.

Pukuma had sued PJP Consulting, which owns Cavanaugh’s River Deck, in 2008, two years after Pukuma allegedly suffered extensive bodily injuries stemming from an incident at the Philadelphia restaurant and bar.

Pukuma claims he was attacked in September 2006 by four visibly intoxicated patrons, an attack that began inside the business and ended outside the restaurant.

Inside, Pukuma was beat, struck on the head and had his face slashed, and when the attack reached the exterior of the business, he was stabbed in the chest by the attackers, according to background information in the judge’s ruling.

NIC is defending Cavanaugh’s in the suit initiated by Pukuma.

The insurance company subsequently commenced a civil action seeking a declaration that Pukuma’s claims were subject to an assault and battery endorsement in Cavanaugh’s insurance policy, which provides a $50,000 aggregate limit of liability subject to a $1,000 deductible; that all claims under the NIC policy are subject to claims expense endorsement which provides that defense costs are included within and reduce the available limits of liability; and that NIC is not obligated to indemnify Cavanaugh’s for punitive or exemplary damages.

NIC filed an instant motion for summary judgment followed by Cavanaugh’s cross-motion for summary judgment.

In ruling in favor of NIC, McInerney wrote that the insurance contract was clear in that the assault and battery endorsement provides that NIC will pay damages because of bodily injury “arising out of ‘assault and battery’ as the result of all ‘occurrences.’”

“Applicability of this portion of the endorsement to the matter at hand depends upon whether Pukuma’s bodily injuries arose out of an assault and battery, and, if so, whether the assault and battery was the result of an occurrence,” the ruling states. “Based on the foregoing, it is clear that Pukuma’s injuries arose from an assault and battery.”

McInerney wrote that the insurance policy defines the term “occurrence” as an accident, “including continuous or repeated exposure to substantially the same general harmful conditions.”

The Pennsylvania Supreme Court has established that the term “accident” within insurance policies refers to an “unexpected and undesirable” event occurring unintentionally and that the key term in the definition of “accident” is “unexpected.”

The ruling states that, according to Pukuma’s complaint, Cavanaugh’s employees negligently removed Pukuma from the bar and negligently and carelessly restrained him while he experienced further attack from the assailants, including the stabbing to the chest.

“These allegations fall within the definition of an ‘occurrence’ as that term is defined under the NIC policy of insurance and therefore constitute an occurrence under the A&B Endorsement,” the judge wrote. “Since Pukuma’s injuries arose out of an assault and battery and the assault and battery was alleged to be the result of an occurrence, the A&B Endorsement is triggered to provide coverage in the underlying action.”

The ruling states that while Pukuma’s injuries were the result of concurrent causes, they nevertheless arose from assault and battery as the result of an “occurrence.”

“As such the A&B Endorsement is applicable and the duty to defend and indemnify is limited to the $50,000 sublimit of insurance provided by the A&B limits of liability endorsement,” the ruling states.

McInerney also ruled that NIC is entitled to summary judgment declaring that is has no duty to indemnify Cavanaugh’s for punitive damages based on the “clear language of the policy.”