Pennsylvania Record

Tuesday, September 17, 2019

Insurer doesn't have to indemnify nightclub in case over shooting

By Nicholas Malfitano | Sep 14, 2016

HARRISBURG – The Superior Court has affirmed a granting of summary judgment in favor of a global insurance company against one of its policyholders, through the applicability of an exclusion clause for assault and battery.

Judges Mary Jane Bowes, Paula Francisco Ott and William H. Platt elected on Sept. 9 to uphold a decision from the Dauphin County Court of Common Pleas, which ruled in favor of appellee QBE Insurance Corporation and against appellants Jalil Walters, Rasheeda Carter, OK Café, Inc. and Donald Bowers, Sr.

Bowers owns OK Café, Inc, which operates the Jazzland Bar in Steelton. OK Café purchased a general liability policy from QBE, which provided coverage for “bodily injury," “property damage” and “personal and advertising injuries” in the course of running the bar. Coverage under the policy was subject to certain exclusions – one of which at issue was the assault and battery exclusion.

On Sept. 9, 2011, Walters and three friends were customers of Jazzland. As they exited the bar, a man named Eric Chambers confronted Walters regarding a perceived slight from earlier in the evening. Chambers brandished a firearm during the altercation, but the situation was diffused without further violence.

Chambers returned to the bar, and Walters and his friends continued to their vehicle. Jazzland’s security personnel, including its head of security, witnessed the incident, per court records. Walters and his friends reversed course when they realized their vehicle was located in the other direction.

Their path led them back to Jazzland’s entrance just as Chambers and the head of security were exiting the building, at which point, a second dispute began. During this second encounter, Chambers drew and fired his weapon, striking Walters in the stomach and arm.

Walters and Carter filed a negligence complaint in the Dauphin County Court of Common Pleas against OK Café, Inc., claiming the establishment did not properly train its employees and failed to provide proper safety and security in allowing Chambers to enter and exit the premises while armed, with Carter also listing a claim for loss of consortium.

OK Café requested QBE defend and indemnify it in that lawsuit, but QBE, believed coverage should be denied based upon an “assault and battery” exclusion contained in the policy. QBE then instituted the instant declaratory judgment action against Walters, Carter, OK Café, and Bowers to adjudicate its obligations under the policy.

At that time, the parties filed cross-motions for summary judgment. The Dauphin County Court of Common Pleas entered summary judgment in favor of QBE and denied the same as to the insureds – leading the insureds to appeal to the Superior Court of Pennsylvania on the basis that QBE’s assault and battery policy exclusion did not apply in this matter and the trial court erred in believing it did.

 Bowes authored the Superior Court’s opinion in this matter.

“Insureds contend that allegations that OK Café’s negligence was a direct cause of Mr. Walters’ injuries take it outside the assault and battery exclusion. They assert that OK Café’s negligence was directly and proximately related to Mr. Walters’ injuries, apart from the assault attributable to Mr. Chambers,” Bowes said.

“In addition, they maintain that it is irrelevant whether Mr. Walters’ injuries also ‘arose from’ an intentional tort as the policy does not expressly exclude coverage for separate, additional legal causes of injury.”

Despite the objections of the appellants, the Superior Court believed the assault and battery exclusion also applied here.

“[The policy] defines an insured’s failure to prevent or suppress an assault or battery as an ‘assault and battery,” Bowes said. “In addition, the exclusion explicitly encompasses the negligent employment, investigation, supervision, training, and retention of ‘a person for whom any insured is or ever was legally responsible and whose conduct is described’ as ‘actual or threatened assault or battery whether caused by or at the instigation of any insured, his ‘employees,’ patrons or any other persons.”

Therefore, the Superior Court indicated QBE’s policy “places negligent conduct contributing to an assault and battery under the ‘arising from’ umbrella…hence, such conduct is excluded from coverage.”

“The myriad allegations presented in the underlying complaint fall within the scope of the definition of ‘assault and battery’ contained in the exclusion, and thus, there is no duty to defend or indemnify,” Bowes stated. “After reviewing the record in the light most favorable to the insureds, we distinguish no genuine issue of material fact, and therefore we discern no abuse of discretion or error of law in the trial court’s grant of summary judgment in favor of QBE.”

Superior Court of Pennsylvania case 1797 MDA 2015

Dauphin County Court of Common Pleas case 2014-CV-06735

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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