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“Assault & Battery” Exception Limits Award to Woman Injured by Bar Bouncer

In many personal injury lawsuits, a victim’s ability to recover damages may be limited by the terms of any insurance policy covering the incident. For example, if you are injured on someone else’s property and bring a premises liability claim, the property owner’s insurance policy can dictate how much you are able to recover in court. That is why it is important to understand any exclusions or limitations on an insurance policy, and where necessary to seek judicial interpretation in order to protect your interests.

First Mercury Insurance Company v. Sudderth

Here is a recent case on point. In May 2010, a woman was at a bar in McDonough, Georgia, with some friends. While paying her tab, a fight broke out behind her, and she was hit by a chair thrown by one of the bar’s security guards. She experienced significant pain in her right foot and fell to the ground.

According to testimony from other eyewitnesses, the security guard was removing a drunk and disorderly patron from the bar. At one point, the guard placed the patron in a “bearhug” and dragged him across the floor of the bar. The patron then went “limp” as the guard ejected him from the bar. It was during this incident the guard threw the chair which inadvertently struck and injured the woman.

The woman subsequently sued the bar. This lawsuit was settled according to undisclosed terms. But a question remained as to the liability of the bar’s insurance carrier. The amount of the victim’s settlement was “contingent” on this issue.

The bar’s insurance policy provided a maximum of $2 million in coverage for any “bodily injury” sustained on the premises. But the policy also contained an endorsement which reduced the coverage limit to just $100,000 for any injury “based upon, related to, arising out of, directly or indirectly resulting from” an act of “assault and/or battery.” The insurance company argued this endorsement applied to the incident here, as the woman’s injuries resulted from the guard’s assault and battery on the unruly patron.

A federal judge agreed with the insurance company’s reading of the endorsement. The U.S. 11th Circuit Court of Appeals in Atlanta concurred. In an August 21 decision, the appeals court said there was no disputing the security guard “committed a battery,” which the insurance policy defined as “a harmful or offensive contact by a person or thing.” In this context, the court said, “A reasonable person would have found it offensive to be forcibly removed from the [bar] in the manner that [the security guard] removed [the patron].” Accordingly, any injury arising from the guard’s contact with the patron—even one to a third party—is subject to the lower policy limit.

The court went on to explain Georgia law did not bar the application of this restrictive endorsement. The victim argued “no reasonable person” would apply the endorsement to her situation. To the contrary, the court said, Georgia law requires strict adherence to the “unambiguous” terms of an insurance contract. Nor did the endorsement violate Georgia’s ban on “illusory” coverage—that is, the lower assault and battery limit did not render the policy’s overall coverage for bodily injury null and void.