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U.S. Underwriters Insurance Company v. Val-Blue Corp.

Court of Appeals of the State of New York
Feb 9, 1995
85 N.Y.2d 821 (N.Y. 1995)

Summary

holding that “[t]he plethora of claims surrounding [the underlying plaintiff's] injury ... are all ‘based on’ [the excluded assault and battery] without which [the underlying plaintiff] would have no cause of action”

Summary of this case from Gen. Star Indem. Co. v. Driven Sports, Inc.

Opinion

Argued January 4, 1995

Decided February 9, 1995

Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, William Davis, J.

Thurm Heller, New York City (Michael A. Miranda of counsel), for appellant.

James E. Neuman, New York City, and Warren S. Goodman for Val-Blue Corp., respondent.

Lysaght, Lysaght Kramer, P.C., Lake Success (Raymond E. Kerno of counsel), for John J. Hanley, respondent.


MEMORANDUM.

The order of the Appellate Division should be reversed, with costs, and a judgment entered declaring that appellant is not obligated to indemnify or defend respondent Val-Blue Corporation in the lawsuit brought against it by John Hanley.

Val-Blue employed Eugene DiSilvo, a retired New York City police officer, as a security guard in its nightclub. In the early morning hours of February 3, 1990, Hanley, an off-duty police officer, apprehended a suspect outside the nightclub and, with gun drawn, brought the suspect into the club in order to use the telephone. DiSilvo, in his capacity as the club's security guard, told Hanley to drop the gun and when Hanley did not do so, DiSilvo shot him twice. Hanley claims that he identified himself as a police officer prior to the shooting, but DiSilvo claims Hanley did so only after he was shot. In his suit for damages against Val-Blue and DiSilvo, Hanley alleged that DiSilvo "negligently, carelessly and recklessly" shot him. Hanley's complaint further charged respondeat superior, negligence in the hiring, supervision and training of employee DiSilvo, statutory violations and other claims.

Val-Blue forwarded the complaint to appellant, its liability insurance carrier, seeking defense and indemnification under its coverage for accidental bodily injury. Attached to the policy is an "Assault and Battery Exclusion Endorsement" which states:

"It is agreed that no coverage shall apply under this policy for any claim, demand or suit based on Assault and Battery and Assault and Battery shall not be deemed an accident, whether or not committed by or at the direction of the insured."

Appellant sought a declaratory judgment that it was not obligated to defend or indemnify Val-Blue because the suit was based on assault and battery. In denying appellant's motion for summary judgment and dismissing the action, the trial court held that the clear language of the exclusion did not apply to the claim of negligent hiring and supervision as that claim was grounded in negligence and not based on assault and battery, and the Appellate Division affirmed. We now reverse.

We agree with the Appellate Division that the language of the exclusion for suits "based on Assault and Battery" is unambiguous. Although respondents acknowledge the intentional nature of assault and battery under New York law, they claim the act of shooting Hanley — twice — was merely negligent, careless or reckless because there was no intention to shoot a police officer. The lack of DiSilvo's intent to cause the actual harm that resulted, however, is irrelevant in determining the intentional nature of his act (Technicon Elecs. Corp. v American Home Assur. Co., 74 N.Y.2d 66, 74-75 [lack of intent to harm environment did not avoid policy exclusion for intentional discharge of pollutants]). The injury being sued upon here is an assault and battery. The plethora of claims surrounding that injury, including those for "negligent shooting" and "negligent hiring and supervision" are all "based on" that assault and battery without which Hanley would have no cause of action.

Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.

Order reversed, with costs, and judgment granted in accordance with the memorandum herein.


Summaries of

U.S. Underwriters Insurance Company v. Val-Blue Corp.

Court of Appeals of the State of New York
Feb 9, 1995
85 N.Y.2d 821 (N.Y. 1995)

holding that “[t]he plethora of claims surrounding [the underlying plaintiff's] injury ... are all ‘based on’ [the excluded assault and battery] without which [the underlying plaintiff] would have no cause of action”

Summary of this case from Gen. Star Indem. Co. v. Driven Sports, Inc.

holding no coverage for employer based on negligent supervision claim when employee security guard shot a person who entered the nightclub

Summary of this case from Talley v. Mustafa

holding no coverage for plaintiff's claim alleging negligent supervision against nightclub for injuries caused when nightclub's security guard shot plaintiff

Summary of this case from Talley v. Mustafa

In Val-Blue, an off-duty police officer was shot by a security guard at a nightclub and brought a claim against the nightclub alleging, among other things, negligence in hiring, supervision and training.

Summary of this case from Mount Vernon Fire Ins. Co. v. Creative Housing

In U.S. Underwrites Ins. Co. v. Val-Blue Corp., 85 N.Y.2d 821, 823 (1995), the New York Court of Appeals held that an assault and battery exclusion applied to claims for negligence arising out of facts constituting an assault and battery -- namely, a shooting by an employee of the insured.

Summary of this case from Century Sur. Co. v. Whispers Inn Lounge, Inc.

In Val-Blue we held an exclusion clause containing language identical to the language found in this policy was unambiguous and precluded coverage of negligence claims.

Summary of this case from Mount Vernon Fire Insurance v. Creative Housing Ltd.

In United States Underwriters Ins. Co. v. Val-Blue Corp., 85 N.Y.2d 821, 623 N.Y.S.2d 834, 647 N.E.2d 1342 (N.Y. 1995), an off-duty police officer apprehended a suspect outside the insured's nightclub and escorted him into the club at gunpoint.

Summary of this case from McAllister v. Agora Syndicate, Inc.
Case details for

U.S. Underwriters Insurance Company v. Val-Blue Corp.

Case Details

Full title:U.S. UNDERWRITERS INSURANCE COMPANY, Appellant, v. VAL-BLUE CORP., Doing…

Court:Court of Appeals of the State of New York

Date published: Feb 9, 1995

Citations

85 N.Y.2d 821 (N.Y. 1995)
623 N.Y.S.2d 834
647 N.E.2d 1342

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