STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 0712
BRADLEY B. WOMACK AND ELIZABETH CAVALIER WOMACK, INDIVIDUALLY AND ON BEHALF OF MARK WOMACK, AND ERROLL E. STRAHAN AND TRICIA SCOTT STRAHAN, INDIVIDUALLY AND ON BEHALF OF ERROLL SCOTT
VERSUS
G MAR JAY PRODUCTIONS, L.L. C. d/ b/ a SHOOTER' S BAR & GRILL 1 AND FIRST FINANCIAL INSURANCE COMPANY
1 A-4 Judgment Rendered: FEB 2 12020
On Appeal from the Twenty -Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana Trial Court No. 2014- 12146
The Honorable William H. Burris, Judge Presiding
Patrick H. Hufft Attorneys for Plaintiffs/Appellants, New Orleans, Louisiana Bradley B. Womack and Elizabeth Arthur J. Brewster Cavalier Womack, individually and Metairie, Louisiana on behalf of Mark Womack and Erroll E. Strahan and Tricia Scott Strahan, individually and on behalf of Erroll Scott
R. Edward Blanchard Attorneys for Defendant/ Appellee, John Futrell First Financial Insurance Company Travis L. Bourgeois New Orleans, Louisiana
Sidney W. Degan, III
BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ. PENZATO, J.
Appellants, Bradley B. Womack and Elizabeth Cavalier Womack,
individually and on behalf of Mark Womack, and Erroll E. Strahan and Tricia
Scott Strahan, individually and on behalf of Erroll Scott, appeal a trial court
judgment granting appellee' s, First Financial Insurance Company, summary
judgment and dismissing all claims against it.' For the reasons that follow, we
affirm.
FACTS AND PROCEDURAL HISTORY
On December 25, 2013, Erroll Scott, son of Errol E. Strahan and Tricia Scott
Strahan, and Mark Womack, son of Bradley and Elizabeth Womack, were
attending a concert at Mar Jay Productions, L.L.C. d/b/ a Shooter' s Bar & Grill
Mar Jay). During the concert, at least two fights occurred on the premises owned
by Mar Jay. At approximately, 1: 15 a. m. on December 26, 2013, a third fight
began in the bar, but eventually spilled outside. One of the participants in the fight
pulled out a . 40 caliber handgun and randomly fired shots into the crowd, striking
eight people, including Erroll Scott and Mark Womack, who both died from their
injuries. Appellants filed suit against Mar Jay, claiming it was liable for the
injuries to Erroll Scott and Mark Womack and for the wrongful death damages to
Appellants. They allege Mar Jay committed various acts of negligence, including
failing to provide adequate security measures, failing to call the police, allowing an
unreasonably dangerous condition to exist on the premises, and other acts of
negligence. Appellants also filed suit against First Financial Insurance Company
1 Appellants also list Jayme Lynn Womack as an appellant. However, we note that Jayme Lynn Womack has never been named as a plaintiff and is not a party to these proceedings. 2 First Financial), alleging that it provided a policy of insurance to Mar Jay
covering the risks sued upon herein.2
First Financial issued commercial general liability policy number
612F000907 ( the Policy) in which Mar Jay is listed as the named insured. First
Financial filed a motion for summary judgment on October 24, 2014, claiming that
every claim asserted against it was precluded from coverage by the assault and
battery exclusion contained in the policy. The policy was attached to the motion
for summary judgment. Due to ongoing discovery, the hearing on the motion for
summary judgment was continued until April 23, 2015. On that date, the hearing
on the motion for summary judgment was continued without date. On October 15,
2018, noting that La. C. C.P. art. 966 had been amended, First Financial filed a
supplemental memorandum in support of its motion for summary judgment,
attaching an affidavit signed by Mitchell H. Jacobs, Appellants' petitions, and First
Financial' s answers.
Appellants opposed the motion for summary judgment, attaching excerpts of
the depositions of Jessica Saybe, an employee of Mar Jay, and Gerald P. Hellmers,
a security guard of Mar Jay and witness to the shooting, a surveillance video, an
affidavit of Nicholas Lea, a witness to the shooting, and one page of the Policy
containing the assault and battery exclusion. Appellants asserted that the facts of
the case did not fall within the assault and battery exclusion as claimed by First
Financial.
First Financial filed an objection to the surveillance video being admitted,
since it was not properly authenticated or enumerated in the categories of exhibits
that may be considered for summary judgment purposes under La. C. C. P. art
2 Appellants filed a First Amending and Supplemental Petition correcting the name of Tricia Strahan Scott to Tricia Scott Strahan in the original petition and the caption. Appellants also
filed a Second Supplemental and Amending Petition, naming new defendants alleged to be the owners and managers of Mar Jay and Jamieon Chatman, the gunman on the night of the incident. 3 966( A)(4). The trial court held a hearing on December 19, 2018, and sustained the
objection to the surveillance video, thereby not considering it for summary
judgment purposes. The trial court further granted First Financial' s motion for
summary judgment, finding there was no duty to defend or indemnify, and
dismissed all Appellants' claims against First Financial. A judgment was signed in
accordance therewith on January 9, 2019. It is from this judgment that Appellants
appeal.
ASSIGNMENT OF ERROR
Appellants' only assignment of error is that the trial court erred in granting
First Financial' s motion for summary judgment since there are issues of fact as to
the liability of First Financial notwithstanding the purported policy exclusion.
SUMMARY JUDGMENT
We first recognize that First Financial filed its motion for summary
judgment on October 24, 2014. Louisiana Code of Civil Procedure article 966 was
amended by 2015 La. Acts, No. 422, § 1, effective January 1, 2016. Section 2
provides, " The provisions of this Act shall not apply to any motion for summary
judgment pending adjudication or appeal on the effective date of this Act." As the
motion for summary judgment at issue in this matter was pending as of October 24,
2014, we apply the prior version of Article 966.
Louisiana Code of Civil Procedure article 966( B)( 2) ( prior to amendment by
2015 La. Acts, No. 422) provides that summary judgment " shall be rendered
forthwith" when " there is no genuine issue as to material facts, and that mover is
entitled to judgment as a matter of law."' After adequate discovery, a motion for
summary judgment is properly granted if the pleadings, depositions, answers to
interrogatories, and admissions, together with affidavits, if any, admitted for
3 Now La. C. C. P. art. 966( A)(3).
4 purposes of the motion, show that there is no genuine issue as to material fact and
that the mover is entitled to judgment as a matter of law. La. C. C. P. arts.
966( B)( 2) & ( C)( 1) ( prior to amendment by 2015 La. Acts, No. 422). 4 The
summary judgment procedure is expressly favored in the law and is designed to
secure the just, speedy, and inexpensive determination of non-domestic civil
actions. See La. C. C. P. art. 966( A)(2).
The mover bears the burden of proving that he is entitled to summary
judgment. However, if the mover will not bear the burden of proof at trial on the
subject matter of the motion, he need only demonstrate the absence of factual
support for one or more essential elements of his opponent' s claim, action, or
defense. La. C. C. P. art. 966( C)( 2) ( prior to amendment by 2015 La. Acts, No.
422). 5 If the moving party points out that there is an absence of factual support for
one or more elements essential to the adverse party' s claim, action, or defense,
then the nonmoving party must produce factual support sufficient to satisfy his
evidentiary burden at trial. La. C. C. P. art. 966( C)( 2) ( prior to amendment by 2015
La. Acts, No. 422). If the nonmoving party fails to make this requisite showing,
there is no genuine issue of material fact, and summary judgment should be
granted. See La. C. C. P. art. 966( C)( 2) ( prior to amendment by 2015 La. Acts, No.
422). If, however, the mover fails in his burden to show an absence of factual
support for one or more of the elements of the adverse party' s claim, the burden
never shifts to the adverse party, and the mover is not entitled to summary
judgment. LeBlanc v. Bouchereau Oil Co., Inc., 2008- 2064 ( La. App. 1 st Cir.
5/ 8/ 09), 15 So. 3d 152, 155, writ denied, 2009- 1624 ( La. 10/ 16/ 09), 19 So. 3d 481.
4 Now La. C. C. P. art. 966( A)( 3).
5 Now La. C. C. P. art. 966( D)( 1).
5 In ruling on a motion for summary judgment, the trial court' s role is not to
evaluate the weight of the evidence or to determine the truth of the matter, but
instead to determine whether there is a genuine issue of triable fact. Hines v.
Garrett, 2004- 0806 ( La. 6/ 25/ 04), 876 So. 2d 764, 765 ( per curiam). Factual
inferences reasonably drawn from the evidence must be construed in favor of the
party opposing the motion, and all doubt must be resolved in the opponent' s favor.
Willis v. Medders, 2000- 2507 ( La. 12/ 8/ 00), 775 So. 2d 1049, 1050 ( per curiam).
In reviewing the trial court' s decision on a motion for summary judgment,
this court applies a de novo standard of review using the same criteria applied by
the trial courts to determine whether summary judgment is appropriate. Jackson v.
Wise, 2017- 1062 ( La. App. 1st Cir. 4/ 13/ 18), 249 So. 3d 845, 850, writ denied,
2018- 0785 ( La. 9/ 21/ 18), 252 So. 3d 914.
LAW AND DISCUSSION
Interpretation of an insurance policy usually involves a legal question that
can be resolved properly in the framework of a motion for summary judgment. An
insurance policy is a contract between the parties and should be construed using
the general rules of interpretation of contracts set forth in the Civil Code.
Interpretation of a contract is the determination of the common intent of the
parties. La. C. C. art. 2045. When the words of a contract are clear and explicit
and lead to no absurd consequences, no further interpretation may be made in
search of the parties' intent. La. C. C. art. 2046. Prejean v. McMillan, 2018- 0919
La. App. 1st Cir. 2/ 28/ 19), 274 So. 3d 575, 578.
When determining whether a policy affords coverage for an incident, the
insured bears the burden of proving the incident falls within the policy' s terms.
Miller v. Superior Shipyard and Fabrication, Inc., 2001- 2683 ( La. App. 1 st Cir.
11/ 8/ 02), 836 So. 2d 200, 203. However, an insurer has the burden of proving that
0 a loss falls within a policy exclusion. Additionally, in determining whether an
exclusion applies to preclude coverage, courts are guided by the well-recognized
rule that an exclusionary clause in an insurance policy must be strictly construed.
Nonetheless, an insurance policy, including its exclusions, should not be
interpreted in an unreasonable or strained manner so as to enlarge or to restrict its
provisions beyond what is reasonably contemplated by its terms or so as to achieve
an absurd conclusion. Fouquet v. Daiquiris & Creams of Mandeville, L.L.C.,
2010- 0233 ( La. App. 1st Cir. 9/ 13/ 10), 49 So. 3d 44, 47 ( citing Sensebe v. Canal
Indemnity Co., 2009- 1325 ( La. App. 1st Cir. 2/ 24/ 10), 35 So. 3d 1122, 1125- 26,
writ granted, 2010- 0703 ( La. 6/ 25/ 10), 38 So. 3d 358.
An insurance policy is an agreement between the parties and should be
construed according to general rules of contract interpretation. Edwards v.
Daugherty, 2003- 2103 ( La. 10/ 1/ 04), 883 So. 2d 932, 940. The judiciary' s role in
interpreting insurance contracts is to determine the common intent of the parties to
the contract. Edwards, 883 So. 2d at 940. Unless the words of the policy have
acquired a technical meaning, they are to be construed using their plain, ordinary,
and generally prevailing meaning. See La. C. C. art. 2047; Cadwallader v. Allstate
Ins. Co., 2002- 1637 ( La. 6/ 27/ 03), 848 So. 2d 577, 580. The agreement must be
enforced as written if the policy wording at issue is clear and expresses the intent
of the parties. Edwards, 883 So. 2d at 941. An insurance company may limit
coverage in any manner, as long as the limitations do not conflict with statutory
provisions or public policy. Edwards, 883 So. 2d at 947. The exclusionary
provisions of an insurance contract are strictly construed against the insurer, and
any ambiguity in the exclusion is construed in favor of the insured. Ledbetter v.
Concord General Corp., 95- 0809 ( La. 1/ 6/ 96), 665 So. 2d 1166, 1169. The rules
of construction, however, do not authorize a perversion of the words or the
7 exercise of inventive powers to create an ambiguity where none exists or the
making of a new contract when the terms express with sufficient clarity the parties'
intent. Edwards, 883 So. 2d at 941. Using these principles, we now address the
pertinent policy language.
The First Financial liability policy contains an exclusion, which provides:
D. This insurance does not apply to:
a. Assault, Battery or other Physical Altercation
Bodily injury" or " property damage":
1) Expected or intended from the standpoint of any insured.
2) Arising in whole or in part out of any " assault" or " battery" committed or attempted by any person.
3) Arising in whole or in part out of any act or omission in connection with avoiding, preventing, suppressing or halting any actual or threatened " assault" or " battery."
4) Arising in whole or in party out of any actual or threatened verbal or physical confrontation or altercation committed or act or omission in connection with avoiding, preventing, suppressing or halting any actual or threatened verbal or physical confrontation or altercation.
G. The exclusions added in paragraphs D, E and F of this
endorsement apply to all acts or omissions, including any act or omission in responding to or failing to respond or render aid, medical or otherwise, to any victim of the " assault" or " battery" or physical confrontation or altercation, and all theories of
liability ( direct or vicarious) asserted against any insured, including but not limited to all theories of negligence, gross negligence, recklessness or intentional tort and shall not be subject to any severability or separation of insureds provision in the policy.
H. The following are added to the Definitions Section of this policy:
0 Assault" means any attempt or threat to inflict injury upon the person of another, or any display of forces such as would give a person reason to fear or expect immediate bodily harm.
Battery" means physical contact with a person
without his or her consent that entails some injury or offensive touching.
Appellants assert that there are material issues of fact as to: ( 1) whether the
assault and battery exclusion applied to the incident in this matter; ( 2) whether the
actions of the tortfeasor amounted to intentional conduct or gross negligence; ( 3)
whether the trial court' s interpretation of the assault and battery exclusion was
overly broad and/ or against public policy; and ( 4) whether the term " physical
contact" as defined in the Policy encompasses the negligent discharge of a firearm
that unintentionally strikes random victims.' Appellants argue issues one, three,
and four together, and we will treat them accordingly.
Assault and Battery Exclusion, Physical Contact, and Public Policy
Appellants argue that the assault and battery exclusion is inapplicable to the
present case since there was no physical contact between the gunman and the two
victims. Lea testified by affidavit that the victims were at least 100 feet away from
the gunman when they were struck by gunfire and that there was no physical
contact between the gunman and any of the shooting victims. Hellmers testified by
deposition that the victims were not involved in the altercation prior to the
shooting, and there was no physical contact between the victims and the gunman.
6 With regard to at least two of these arguments, Appellants refer to a surveillance video, which was attached to their opposition memorandum. The trial court struck the surveillance video as being inappropriate summary judgment evidence. The Appellants did not assign as error the trial court' s ruling on the exclusion of the surveillance video. Matters neither assigned as error nor argued, or, matters assigned as error but not argued may be considered abandoned. See Uniform Rules -Courts of Appeal 2- 12. 4; Ranson v. Cooper, 2016- 0029 ( La. App. 1st Cir. 9/ 19/ 16), 228 So. 3d 1254, 1257 n. 3. Therefore, we disregard any arguments pertaining to the surveillance
video, which was not considered by the trial court.
Q, Appellants claim that First Financial' s definition of battery required physical
contact, thereby creating an ambiguity which should be resolved in their favor.
Initially, we note that assault and battery exclusions are routinely enforced
by our courts. See Hickey v. Centenary Oyster House, 97- 1074 ( La. 10/ 20/ 98), 719
So. 2d 421, 423; Ledbetter, 665 So. 2d at 1169- 70; Guste v. Lirette, 2017- 1248
La. App. 1st Cir. 6/ 4/ 18), 251 So. 3d 1126, 1133. As the Second Circuit has
noted:
Our review of the jurisprudence reveals that the policy provisions in assault and battery exclusion] cases are sometimes similar but infrequently identical. However, the conclusion we draw from the overwhelming majority of cases is that insurers that have assault and battery exclusions in their policies are generally dismissed from suits against their insureds arising from injuries or deaths following an assault or battery. This is true regardless of the theory of recovery put forth by the plaintiff w - hether it be negligence, intentional tort, nuisance, premises defect, or the like.
Hudson v. Jager Bomb LLC, 47, 501 ( La. App. 2nd Cir. 11/ 14/ 12), 107 So. 3d 712,
717. A general liability insurance policy is not intended to cover injuries arising
from intentional acts. Hickey, 719 So. 2d at 423. However, some policies contain
an express exclusion for assault and battery, which has been held effective
regardless of whether the insured was a participant in the altercation. Hickey, 719
So. 2d at 423. Accordingly, unless it is ambiguous, the assault and battery
exclusion is to be enforced as written. See, e.g., Howell v. American Cas. Co. of
Reading, PA, 96- 0694 ( La. App. 4th Cir. 3/ 19/ 97), 691 So. 2d 715, 726, writs
denied, 97- 1329, 97- 1379, and 97- 1426 ( La. 9/ 5/ 97), 700 So. 2d 512, 515, and 518
if the exclusion unambiguously excludes coverage, then we must enforce that
contractual language").
In Bennett v. Ragon, 2004- 0706 ( La. App. 1st Cir. 3/ 24/ 05), 907 So. 2d 116,
the defendant attempted to prevent his truck from being stolen. In doing so, he
testified that he fired a warning shot and then attempted to shoot out the tires of the
10 vehicle. Instead, the defendant accidently shot the driver of the truck. The insurer
of the defendant asserted that the assault and battery exclusion applied and sought
dismissal from the suit, which was granted after the trial. Bennett, 907 So. 2d at
119. Applying the manifest error standard, this court agreed with the trial court
that the actions of the defendant constituted an assault and battery, relying on
either the civil or criminal definitions of assault and battery since the policy
contained no specific definitions. Bennett, 907 So. 2d at 121. We noted that the
defendant intended some offensive contact when he fired the shotgun. Thus, the
pertinent inquiry was not whether the defendant intended to shoot the driver of the
truck, but whether he intended to inflict a harmful or offensive contact. Bennett,
907 So. 2d at 121.
The plaintiff in Fournette v. Tran, 2000- 0805 ( La. App. 4th Cir. 7/ 11/ 01),
792 So. 2d 870, 873, writ denied, 2001- 2731 ( La. 1/ 4/ 02), 805 So. 2d 211, also
argued that there was a question of fact as to whether an assault and/ or battery
occurred triggering the policy' s assault and battery exclusion. A store employee
attempted to block a shoplifter' s path while pointing a gun at the ground. He did
not point the gun at anyone and did not threaten to shoot anyone. The shoplifter
pushed the employee out of the way while leaving the store, causing the gun to
accidentally discharge. The plaintiff, an innocent bystander, was accidentally shot
as he was entering the store. The Fourth Circuit held that the assault and battery
exclusion was unambiguous and that the insurer would not be liable for any
injuries resulting from an assault and/ or battery. Fournette, 792 So. 2d at 873- 74.
The plaintiff argued that the intent of the gunman was a genuine issue of material
fact. Fournette, 792 So. 2d at 874. The employee' s own deposition testimony
determined that he intended to commit an aggravated assault against the shoplifter.
Fournette, 792 So. 2d at 873- 74.
11 The evidence submitted by First Financial to support the motion for
summary judgment was the Policy and the pleadings. The petition alleges that the
gunman " pulled out a . 40 caliber handgun and began firing shots into the crowd."
We agree with the trial court that the act of firing a . 40 caliber handgun into a
crowd falls within the definition of the assault and battery exclusion of the Policy. Although the evidence in the present case does not include the deposition of the
gunman, it is alleged that the gunman fired a gun into a crowd, striking eight and
killing two individuals. Therefore, it is evident that the gunman intended to
commit an assault against the persons present, even if the intended target was
different from the individuals struck by his gunfire.
In Nastasia v. Sylvan Inc., 617 So. 2d 128, 129 ( La. App. 5th Cir. 1993), a
First Financial assault and battery exclusion ( similar to Subsection ( 3) of the
assault and battery exclusion at issue in the present case) was at issue, which at the
time provided:
It is agreed and understood that this Insurance does not apply to bodily injury or property damage arising out of assault and battery or out of any act or omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or direction of the Insured, his employees, patrons or any other person.
A fight broke out at a night club among patrons. The plaintiff was struck in the
face with a glass beer bottle, even though he alleged he was not involved in the
altercation. At the time, the policy did not contain definitions of either assault or
battery. However, the court found these terms to be unambiguous. Nastasia, 617
So. 2d at 129. The court also noted that even though the plaintiff was an innocent
bystander, there was no requirement that an assault and battery be directed at a
specific person. Nastasia, 617 So. 2d at 130. Therefore, summary judgment in
favor of the insurer was affirmed.
12 The Louisiana Supreme Court addressed the issues before this court in Jones
v. Estate of Santiago, 2003- 1424 ( La. 4/ 14/ 04), 870 So. 2d 1002, 1010, and set
forth the following principles:
An insured party who shoots someone, generally, is not entitled to insurance protection because a shooting is ordinarily considered an intentional act intended or expected to cause bodily injury. This principle is explained in 15 WILLIAM SHELBY MCKENZIE & H. ALSTON JOHNSON, Louisiana Civil Law Treatise: Insurance Law and Practice § 164 at 344 ( 2d ed. 1996), as follows: " Insureds who pull loaded guns and shoot other persons have not found the courts receptive to their exculpatory explanations, even in defense of the insurer' s motion for summary judgment."
Furthermore, in Cavin v. Elliot, 597 So. 2d 1255, 1257 ( La. App. 3rd Cir. 1992),
the court observed:
Louisiana courts have consistently held that the aggressive act of pulling a loaded gun and firing it at a third party, in and of itself, supports the conclusion that the defendant/insured intended the resulting injuries because such consequences are almost certain to occur as a result of such actions.
The only counter evidence in the present case is the testimony of Lea, who
stated that the victims were at least 100 feet away from the gunman when they
were struck by gunfire and that there was no physical contact between the victims
and the gunman, and the testimony of Hellmers, who stated that the victims were
not involved in the altercation prior to the shooting and that there was no physical
contact between the victims and the gunman. We do not find that the testimony of
either Lea or Hellmers supports the conclusion that the actions of the gunman fall
outside the definition of the assault and battery exclusion of the Policy.
We note that the assault and battery exclusion in the Policy does not require
both an assault and a battery. It specifically applies to " any ` assault' or `battery'
committed or attempted by any person." Without even determining if there was a
battery in this instance, the facts are sufficient to indicate there was an assault as
defined by the Policy. The act of pulling out a loaded gun and firing into a crowd
13 would give a person reason to fear or expect immediate bodily harm" as contained
in the definition of "assault" in the Policy.
We also believe that Appellants' reading of the Policy definition of "battery"
is too narrow. The definition requires " physical contact" but is not limited to
person- to- person contact. The United States Fifth Circuit Court of Appeal has
observed, " In Louisiana, `[ b] attery does not require direct bodily contact between
the actor and the victim."' Swope v. Columbian Chemicals Co., 281 F. 3d 185, 196
5th Cir. 2002) ( quoting Frank L. Maraist & Thomas C. Galligan, Louisiana Tort
Law § 2- 6( a), at 28 ( 1996)). " The contact may be with an inanimate object
controlled or precipitated by the actor, such as the surgeon' s scalpel, a bullet or
even a thrown hamburger. The victim need not be aware of the contact when it
occurs." Swope, 281 F. 3d at 196 ( quoting Maraist & Galligan, Louisiana Tort Law
2- 6( a), at 28, citing Saucier v. Belgard, 445 So. 2d 191 ( La. App. 3rd Cir. 1984);
England v. S & MFoods, Inc., 511 So. 2d 1313 ( La. App. 2nd Cir. 1987)).
Appellants also assert that there is a genuine issue of material fact as to
whether Mar Jay committed other acts of negligence. Therefore, they allege that
the assault and battery exclusion does not preclude coverage for all the claims of
negligence asserted. Fouquet, 49 So. 3d at 48, also involved the interpretation of
an assault and battery exclusion and multiple claims of negligence. The assault
and battery exclusion in Fouquet stated that the insurance did not apply due to
bodily injury" arising from an ( 1) " assault", " battery" or " assault and battery"
committed by any person; ( 2) the failure to suppress or prevent an " assault",
battery" or " assault and battery"; ( 3) the failure to provide an environment safe
from " assault", " battery" or " assault and battery"; ( 4) the failure to warn of the
dangers of the environment which could contribute to " assault", " battery" or
assault and battery"; ( 5) " assault", " battery" or " assault and battery" arising out of
14 the negligent hiring, supervision, or training of any person; and ( 6) the use of any
force to protect persons or property whether or not the " bodily injury" or " property
damage" or " personal and advertising injury" was intended from the standpoint of
the insured or committed by or at the direction of the insured. Fouquet, 49 So. 3d
at 47- 48. A bar patron was stabbed several times by another patron. The plaintiff
argued that the assault and battery exclusion did not apply to all his claims, such as
preventing criminal acts, acting as a reasonable person would under similar
circumstances, and failing to assist the plaintiff. Fouquet, 49 So. 3d at 48. This
court disagreed finding that the plaintiff read the exclusionary language too
narrowly and that there were no " separate injuries," only those that stemmed from
the stabbing. Fouquet, 49 So. 3d at 48- 49.
Appellants in this matter also argue that the assault and battery exclusion
does not apply to Mar Jay' s negligence for allowing the participants in two
previous altercations to remain inside the bar; for failing to hire a police security
detail; and for failing to intervene in the two previous altercations. We find these
arguments to be similar to those in Fouquet. The assault and battery exclusion in
the Policy at issue specifically states that it does not apply to bodily injury:
3) Arising in whole or in part out of any act or omission in connection with avoiding, preventing, suppressing or halting any actual or threatened " assault" or " battery."
4) Arising in whole or in part out of any actual or threatened verbal or physical confrontation or
altercation committed or act or omission in connection with avoiding, preventing, suppressing or halting any actual or threatened verbal or physical confrontation or altercation.
R. 100).
Although the assault and battery in the present case is not identical to the one
involved in Fouquet, we find that the language of the assault and battery exclusion
applies to the other negligence claims made by Appellants. 15 Appellants also aver that it is against public policy to exclude conduct that is
negligent from coverage. Appellants rely on Young v. Brown, 27, 018 ( La. App.
2nd Cir. 6/ 21/ 95), 658 So. 2d 750, 751, writ denied, 95- 1811 ( La. 10/ 27/ 95), 662
So. 2d 1, wherein a tortfeasor accidentally shot the plaintiff as he fell into the
plaintiff. The Second Circuit reversed the summary judgment in favor of the
insurer. However, the exclusion at issue in Young excluded " intentional or
criminal acts." Young, 658 So. 2d at 752. The court found the use of the term
criminal acts" to be ambiguous and susceptible to more than one meaning, since
criminal acts" could be intentional or negligent. Young, 658 So. 2d at 754. The
court held that an exclusion of liability insurance coverage for non -intentional,
inadvertent acts of criminal negligence violates Louisiana' s public policy
established for the protection of innocent injury victims. Young, 658 So. 2d at 754.
We find Young to be distinguishable from the facts of the present case. The
policy exclusion at issue is not one for " criminal acts" but specifically for a defined
assault or battery. Furthermore, the action in Young was a non -intentional,
inadvertent act. In the present case, although the gunman may not have intended to
shoot the ultimate victims, it cannot be disputed that the act of firing a . 40 caliber
handgun into a crowd as alleged by Appellants is at a minimum an assault on those
present and a battery on those individuals struck by the bullets. Therefore, we find
that the assault and battery exclusion is applicable and excluded coverage for the
claims of the Appellants.
Negligent Homicide or Gross Negligence
Appellants also argue that the actions of the gunman amount to negligent
homicide, rather than an intentional tort. They assert that the gunman' s actions in
shooting into a crowd was gross negligence. Appellants relied upon the
surveillance video, which was deemed inadmissible, and the affidavit of Lea to
16 support its argument. Lea testified that he saw Errol Scott at least 100 feet away
from the gunman and that there was no physical contact between the gunman and
Errol Scott or any other shooting victims, including Mark Womack. Lea also
discussed what he saw on the video, which is also inadmissible. Relying on these
statements, the Appellants argue that the gunman, " who was involved in the
altercations, began firing his gun once they were outside, apparently not
specifically or intentionally aiming at any person in particular, but simply firing his
gun in a reckless manner. In doing so, he accidentally shot and killed [Errol] Scott
and Womack." The affidavit of Lea does not support the Appellants' argument
that the gunman accidentally shot the victims. The argument of counsel, no matter
how artful, is not evidence. Pamplemoussier, L.L. C. v. Poche, 2012- 1829 ( La.
App. 1st Cir. 9/ 13/ 13), 187 So. 3d 480, 482.
Furthermore, we find the cases relied upon by Appellant to be
distinguishable. In State v. McFerson, 583 So. 2d 516, 519 ( La. App. 3rd Cir.),
writ denied, 588 So. 2d 113 ( La. 1991), a defendant was convicted of negligent
homicide in violation of La. R.S. 14: 32, when he brought a friend' s loaded gun
into a crowded bar and it discharged, killing an innocent victim, when he pulled
the gun out of his pants pocket. In State v. Barberousse, 458 So. 2d 569, 571 ( La.
App. 3rd Cir. 1984), writ granted, 468 So. 2d 565 ( La. 1985), aff'd, 480 So. 2d 273
La. 1985), a defendant was found criminally negligent when he fatally shot his
sister after pulling out a loaded gun, cocking it, and pointing it at another person.
According to the defendant, he was lowering the gun and attempting to uncock it
when it discharged. The single bullet entered his sister' s chest causing her death
only moments later. In State v. Parker, 431 So. 2d 114, 115 ( La. App. 1st Cir.),
writ denied, 435 So. 2d 433 ( La. 1983), a defendant was found criminally negligent
after shooting through a door without looking believing that there was an
17 attempted entry into his home. The bullet struck an innocent person returning from
running errands.
We find nothing in the record to establish that there was an accidental
discharge of the gun in this matter. We find the actions of the gunman fall within
the definition of an assault and/ or battery as defined by the Policy. Therefore,
there are no issues of fact to be resolved at trial, and the trial court did not err in
granting First Financial' s motion for summary judgment.
CONCLUSION
For the above and foregoing reasons, we affirm the trial court' s January 9,
2019 judgment granting summary judgment in favor of First Financial Insurance
Company and dismissing all claims of Bradley B. Womack and Elizabeth Cavalier
Womack, individually and on behalf of Mark Womack, and Erroll E. Strahan and
Tricia Scott Strahan, individually and on behalf of Erroll Scott, against First
Financial Insurance Company. All costs of this appeal are assessed to Bradley B.
Womack, Elizabeth Cavalier Womack, Erroll E. Strahan, and Tricia Scott Strahan.
AFFIRMED.