Summary Judgment Granted in Favor of Insurer on Assault & Battery Exclusion in Declaratory Relief/Bad Faith Action

June 3, 2010

Jean M. Lawler, German A. Marcucci and Bryan M. Weiss won summary judgment for their client, Essex Insurance Company, in an insurance coverage declaratory relief action in which the insured had cross-complained for breach of contract, bad faith, violation of the business and professions code §17200 and declaratory relief action.  The case was venued in the San Francisco Superior Court – Civic Center Courthouse and the motion was heard by the honorable Peter J. Busch. 

The insureds were owners of a property leased to a nightclub operator and were sued when one nightclub patron was struck by the stray bullet fired by another patron.  The insured was sued based on allegations of intentional tort, premises liability and negligent failure to provide adequate security and tendered the defense of the case to Essex.  Essex denied coverage based on, among other things, the assault and/or battery exclusion endorsement contained in their policy.  A declaratory relief action was filed by Essex regarding the coverage issues, and the insured cross-complained.  A successful Demurrer was filed on behalf of the insurer in response to the insured's causes action for bad faith and violation of business and professions code §17200.  Essex then filed a motion for summary judgment on the applicability of the policy's assault and battery exclusion to preclude coverage for the claim.  The Court granted Essex’s motion for summary judgment on the grounds that the assault and battery exclusion applied to the allegations in the underlying action, finding the denial of coverage to have been proper.