Pickett v. Moore’s Lounge, 464 N.J. Super. 549 (App. Div. 2020). This was an insurance coverage case. Plaintiff’s decedent was shot to death at the defendant tavern by another patron following an argument. After settling with other defendants, plaintiff sought payment from the tavern’s liability insurer.
The appeal, decided today, focused on a policy exclusion for claims “arising out of any act of ‘assault’ or ‘battery’ committed by any person” and encompassed any claims “arising out of … any act or omission in connection with the prevention or suppression of such ‘assault’ or ‘battery.'” Plaintiff alleged that the tavern negligently allowed the shooter to enter the tavern armed, and that the shooter had intentionally shot the decedent.
The insurer invoked the assault and battery exclusion in a motion for summary judgment in its favor. The Law Division granted summary judgment. The Appellate Division today affirmed that ruling in an opinion by Judge Ostrer that applied de novo review of the purely legal question of the scope of the exclusion.
Plaintiff’s allegation that the shooting was intentional made this a case of battery. Indeed, plaintiff “alleged a ‘battery.'” Judge Ostrer did not decide whether that alone triggered the exclusion and barred a claim against the insurer. But he went on to note the exclusion’s language regarding failure to prevent or suppress a battery. The exclusion unambiguously applied, since plaintiff had alleged negligence by the tavern in failing to prevent the shooting.
Judge Ostrer analyzed at length two prior cases that the Law Division had also addressed: Stafford v. T.H.E. Ins. Co., 309 N.J. Super. 97 (App. Div. 1998), and L.C.S. Inc. v. Lexington Ins. Co., 371 N.J. Super. 482 (App. Div. 2004). Stafford found no coverage under a differently-worded exclusion, and plaintiff argued that the difference in wording called for a different result here. Judge Ostrer did not agree. The exclusion here was broader than in Stafford, covering “both ‘acts’ and ‘omissions’ that would prevent or suppress the assault or battery,” rather than “any other negligent action” (emphasis by Judge Ostrer).
L.C.S. came out the other way, in favor of coverage. But Judge Ostrer distinguished that case based on “the nature of the claim for damages,” which was a bar’s negligence in managing its bouncers, one of whom punched the plaintiff in the face. That plaintiff had alleged, alternatively, that the bouncer acted intentionally and that he had been negligent. Here, however, plaintiff asserted that the shooter had acted intentionally, with no alternative claim of negligence that might have led to coverage.
Finally, Judge Ostrer cited several “persuasive decisions of other courts” outside New Jersey. All in all, the proper result, he said, was affirmance of the summary judgment in favor of the insurer.