Colony Insurance Co. v. Barnes, 2006 WL 1995720 (11th Cir. July 18, 2006) is a case that could serve as a model of how a plaintiff can plead to avoid a policy’s assault and battery exclusion. In May 2004, one Faheem Brown, a patron of the Dreamland Inn in Greenwood, Florida, was killed when other patrons began firing guns in the parking lot. It is not clear from the case exactly why they did this, whether out of malice or stupidity, but it appears Brown was struck by a stray bullet and was not an intended target.
His estate brought a wrongful death suit against the club, alleging that it failed to suppress patrons from recklessly shooting firearms, that it failed to provide an environment free from gun play, and that firearm use at the club was so frequent as to constitute an ultra-hazardous activity for which the club was strictly liable. The club’s insurer, Colony, filed a declaratory action, seeking to establish that the policy’s assault and battery exclusion precluded a duty to defend. However, the U.S. district court, and on appeal the 11th Circuit, found that assault and battery, which were not defined in the policy, require an intent to injure or to create a well-founded fear of imminent peril. The complaint, the 11th Circuit said, contained no allegation of intent by the shooter, and therefore Colony owed a duty to defend the club.
It may occur to many of you, as it did to me, that bringing a dec action in circumstances like this, where the underlying tort action against the insured is ongoing, is tricky and hazardous. An insurer can’t force an insured to defend itself in a dec action with a position that will expose it to liability to the underlying plaintiff. In this case, it would appear that the insured could defend the dec action merely by saying that the complaint alleged no criminal intent by the club or the shooter, without admitting any of the negligence or ultra-hazardous conduct in the complaint. Still, the nightclub would have to assume for purposes of argument that the gun was fired on its premises, a fact that exposes it to potential liability. Maybe there was no dispute about this and the club admitted as much in its answer to the wrongful death suit, I don’t know.
This brings to mind something that separates the practice of insurance coverage law from some other kinds of legal practice. I mention this because last night I was reading a blog written by a so-called trial lawyer that frankly made my jaw drop, because it purported to analyze case law but was so lacking in objectivity and fairness as to be disgusting. (I’m not going to mention who this is because it was so evidently written in a bid for any kind of attention, negative or positive, that recognizing these efforts by name would merely reinforce the delusions at their root). Coverage lawyers can have their own views on the world, but when they start wading chest deep in serious analysis of cases and insurance policy language, in my view they have to strive for maximum objectivity and suppress emotion and bias in favor of an intellectual sorting process similar to playing chess. If they don’t remain objective and allow bias to influence their thinking, it is too easy to make a mistake and then gain a new bias: defending your own previous substandard analysis.