| Q&A of the Week |
Dust as Property Damage
A Connecticut subscriber recently asked the following question:
Under a commercial general liability policy, we have the following situation. The insured was hired to remove old flooring and replace it with new flooring. The removal of the old flooring caused excessive dust in the claimant's home. Is dust considered property damage?
ANSWER: Dust itself is not property damage, but if it caused physical injury to tangible property or if it caused a loss of use of tangible property, then PD would occur. |
| |
| Litigation Watch |
Assault and Battery Exclusion
This cause was before the court on a motion for summary judgment. The case is Seneca Specialty Insurance Company v. 845 North, 2015 WL 3400415.
Seneca Specialty Insurance filed this action seeking a determination that its insurance policy does not provide coverage for claims arising from a nightclub shooting. Two people allege that, while at the nightclub owned and operated by 845 North, they were assaulted and shot on the premises, suffering serious bodily injury and permanent disfigurement. The two men filed a lawsuit, alleging negligence, claiming that 845 North failed to provide adequate security and failed to warn its invitees and the public of the numerous criminal incidents that had previously occurred on its premises.
The insured sought coverage from Seneca, its insurer. The insurer disclaimed coverage and sought a declaratory judgment that it had no duty to defend or indemnify 845 North. The insurer said that the assault, battery or assault and battery exclusion and the weapons exclusion prevented coverage for the claims.
The United States District Court, M.D. Florida, Jacksonville Division noted that from the face of the complaints, the victims allege they were assaulted and shot on 845 North's premises and suffered damages as a result of the insured's negligence. The court decided that the weapons exclusion in the policy precludes coverage for claims that arise out of or result from the use of a lethal weapon. The claims at issue here necessarily involved, arose out of, and/or resulted from the use of a lethal weapon. Moreover, said the court, the victims plainly assert that they were assaulted and that someone shot them, which is a harmful or offensive touching constituting a battery under the policy definition.
The court also found that the policy explicitly excludes claims arising from an assault and battery and based on a failure to prevent an assault, battery, or both, such as the ones the victims have asserted in the underlying actions. Therefore, the court concluded from the pleadings that the assault and battery and weapons exclusions apply and Seneca has no duty to defend or indemnify the insured.
As an aside, the court noted that while neither victim specifically alleged that they were shot with a firearm, the weapons exclusion includes but is not limited to firearms. Instead, the weapons exclusion precludes coverage of bodily injury arising out of or resulting from the use of a lethal weapon, so even if the victims were shot with a weapon other than a firearm, such a weapon would constitute a lethal one falling within the weapons exclusion.
The court also discussed the term "arising out of" and said that the term is broader in meaning than the term "caused by", and means "originating from, growing out of, flowing from or having a connection with".
Editor's Note: The U.S. District Court noted that, in determining an insurer's duty to defend, a court looks solely to the allegations in the underlying complaint. The actual facts of the situation are not relevant, such that the insurer must defend even if facts alleged are actually untrue or legal theories unsound. In this instance, the allegations in the underlying complaint against the insured fell squarely within the stated exclusions and summary judgment for the insurer was appropriate. |
| |
|
|
|
| Subscribe to FC&S |
| FC&S Online is the unquestioned authority on insurance coverage interpretation and anlaysis for the P&C industry. FC&S offers unbiased analysis and interpretation and keeps you current on the latest ISO and AAIS revisions. Providing instant access to the very latest information, FC&S is the resource that agents, attorneys, brokers, risk managers, underwriters, and adjusters rely on to research commercial and personal lines coverage issues. |
| • |
Quickly and accurately determine coverage under a policy at the time of loss |
| • |
Research coverage issues and interpretations, including court cases |
| • |
Access experts live to discuss specific situations |
| • |
Find answers to questions based on real-world claims disputes |
| • |
View and print ISO forms |
| • |
Access updates on breaking litigation and bureau developments |
 |
|
| |
| Join Us Live! |
| FC&S editors regularly conduct web-based demos of the service. Feel free to contact Christine Barlow, cbarlow@alm.com, for more information. They only take 30 minutes, a small investment of time that will help you learn all that FC&S Online has to offer. |
| |
| Contact Us |
As always, your comments and questions are welcome.
Contact us at:
FC&S Department
Phone: 800-543-0874
Fax: 859-692-2246
Email: eAlerts@nuco.com |
| |
|
