Peters v. United National Insurance

762 N.E.2d 881, 53 Mass. App. Ct. 775
CourtMassachusetts Appeals Court
DecidedFebruary 15, 2002
DocketNo. 99-P-1168
StatusPublished
Cited by4 cases

This text of 762 N.E.2d 881 (Peters v. United National Insurance) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Peters v. United National Insurance, 762 N.E.2d 881, 53 Mass. App. Ct. 775 (Mass. Ct. App. 2002).

Opinion

Cowin, J.

The plaintiffs alleged that they were injured as the result of an attack that took place outside of the Sports Bar and Grill in Hull. In their complaint against CCP Company, Inc. (CCP), the owner of the Sports Bar and Grill, they asserted that CCP negligently failed to provide adequate security (counts I and III) and that CCP negligently distributed, served, or sold [776]*776alcoholic beverages to intoxicated patrons and minors, which negligence brought about the attacks causing their injuries (counts II and IV). CCP defaulted, and after a hearing to assess damages, judgments entered for Brian Peters in the amount of $34,000 and for Rhonda Peters in the amount of $8,034.

Prior to the incident from which this litigation arose, CCP had obtained liquor liability insurance coverage from the defendant, United National Insurance Company (United), a surplus lines insurance carrier approved by and registered with the Massachusetts Division of Insurance.2 The United insurance policy was in effect at the time of the incident. Following entry of the default judgments in the plaintiffs’ favor, CCP assigned all of its rights under the United insurance policy to the plaintiffs. The plaintiffs then commenced this action against United in which they sought a declaration that United is hable to them for the amounts of the default judgments under counts II and IV of their earlier complaint against CCP (the liquor liability counts). United counterclaimed, seeking a declaration that it was not liable therefor. A judge of the Superior Court allowed United’s motion for summary judgment, denied the plaintiffs’ cross motion for summary judgment, and entered final judgment in favor of United from which the plaintiffs appeal. We agree with the Superior Court judge that (1) United was entitled to defend on the issue of its indemnity obligation notwithstanding its choice not to defend CCP in the underlying action; (2) the United policy excluded coverage for the assault and battery alleged by the plaintiffs; and (3) United was not required to provide such coverage under the provisions of G. L. c. 175, § 112A.3 Accordingly, we affirm the judgment for United. There are no material facts in dispute, and we refer to [777]*777such facts as are meaningful where appropriate in the course of the opinion.

1. United’s right to contest coverage. United declined to defend or indemnify CCP in the underlying action on the ground that, since there was no coverage for negligent failure to provide adequate security, and since claims for damages resulting from assault and battery were excluded from the liquor liability coverage which United had provided, United was not contractually obligated to participate. The plaintiffs agree with the motion judge that United is not barred from asserting its position that there is no coverage at this stage. However, the plaintiffs assert that United, having wrongfully refused to defend CCP, now has the burden of showing that the damages awarded in the underlying action arose from the admittedly uncovered claim for negligent failure to provide adequate security rather than from the allegedly covered claim for the negligent dispensation of alcoholic beverages, or of otherwise demonstrating a basis for apportioning the damages between the two theories. See Liquor Liab. Joint Underwriting Assn, of Mass. v. Hermitage Ins. Co., 419 Mass. 316, 323-324 (1995). The short answer to this proposition is that, for the reasons stated below, United had no contractual obligation with respect to either of the types of claims asserted by the plaintiffs against CCP. Consequently, there has been no wrongful refusal by United to defend or indemnify CCP, and there is nothing to apportion. United acted within its rights by relying (correctly, as it turns out) on its interpretation of its own insurance contract, and it was entitled to defend its position in the declaratory judgment case.

2. The assault and battery exclusion. The insurance policy provided to CCP by United provided in relevant part that United “will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to which this insurance applies, sustained by any person if such liability is imposed upon the insured by reason of the selling, serving or giving of any alcoholic beverage at or from the insured premises, and [United] shall have the right and duty to defend any suit against the insured seeking damages.” Nothing more appearing, a judgment for damages against CCP, if based on the negligent dispensing of alcoholic beverages, would [778]*778have obligated United to indemnify CCP with respect to that judgment. However, the policy contained an exclusion as follows: “[N]o coverage is provided under [this] policy ... for either defense or indemnification, for any claim asserting a cause of action within any of the Exclusions Usted below.” One of those exclusions, labeled the “Assault & Battery Exclusion,” applied to “[c]laims arising out of an assault and/or battery, whether caused by or at the instigation of, or at the direction of, or omission by, the Insured, and/or his employees.” United asserts that the plaintiffs’ claims that they were the victims of assaults and batteries arising out of the negligent serving of Uquor fall within the exclusion and that United was therefore not responsible either to defend CCP or to pay the judgments against it.

We agree with United, as did the motion judge. We construe the exclusionary language in its usual and ordinary sense. Barnstable County Mut. Fire Ins. Co. v. Lally, 374 Mass. 602, 605 (1978). In doing so, we take into account “what an objectively reasonable insured, reading the relevant policy language, would expect to be covered.” Hazen Paper Co. v. United States Fid. & Guar. Co., 407 Mass. 689, 700 (1990). Applying these criteria, we fail to locate the ambiguity that the plaintiffs contend requires a construction of the exclusionary clause against the insurer. The clause provides that the insurer will not pay claims arising out of an assault and/or battery which, based on the plaintiffs’ own complaint in the underlying case, these plainly did.

That the plaintiffs’ complaint alleged negligence on the part of CCP does not alter the result. The point was addressed in United Natl. Ins. Co. v. Parish, 48 Mass. App. Ct. 67 (1999). There, as here, the plaintiff alleged that he was injured as the result of an assault and battery that was permitted to occur, or that was facilitated, by the negligence of the insured. The exclusionary language of the applicable policy was the same as that presently at issue. We stated that “without the underlying assault and battery, there would have been no personal injuries and, therefore, no basis for a suit against the insured for negligence. All of the claims derive from the assault and battery that is the source of the plaintiff’s personal injury.” Id. at 70. [779]*779“It is the source from which the plaintiff’s personal injury originates rather than the specific theories of liability alleged in the complaint which determines the insurer’s duty to defend.” New England Mut. Life Ins. Co. v. Liberty Mut. Ins. Co., 40 Mass. App. Ct. 722, 727 (1996). To the same effect, see United Natl. Ins. Co. v. Entertainment Group, Inc., 945 F.2d 210, 213 (7th Cir. 1991).

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Bluebook (online)
762 N.E.2d 881, 53 Mass. App. Ct. 775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peters-v-united-national-insurance-massappct-2002.