On February 19, 2019, Judge William Young of the United States District Court sitting in Boston entered summary judgment against a dance club’s bouncer’s suit against Navigators Specialty Insurance Company (“Navigators”). The bouncer’s suit sought a ruling that Navigators had a duty to defend and indemnify him under his employer’s liability policy in two civil suits arising out of alleged assault and batteries involving an altercation with two patrons of his employer’s club.
The decision, David Cohne v. Navigators Specialty Insurance Company, turned on the definition of an “Insured” vs. a “Named Insured” and a conflict between an endorsement and an exception to the expected or intended injury exclusion for “‘bodily injury’ resulting from the use of reasonable force to protect persons or property.”
Attempt to get back into the Club leads to an altercation
On August 19, 2014, David Cohne (“Mr. Cohne”) was employed as a bouncer/doorman at an establishment known as the “Royale Night Club” on Tremont Street in Boston (“Club”). At approximately 11:00 p.m. that evening Kenneth Yianacopolus (“Mr. Yianacopolus”) with his friends arrived at the Club. He consumed alcohol while in the Club and “around closing time,” left the Club and went out onto the sidewalk outside the Club.
While standing outside, Mr. Yianacopolus noticed a female patron with whom he had spoken earlier in the evening still inside the Club. When Mr. Yianacopolus attempted to re-enter the Club to speak with her, Mr. Yianacopolus claimed that Mr. Cohne “suddenly,” “without any warning,” and “without provocation” committed an assault and battery against him.
“A short time later,” Mr. Yianacopolus alleged, Mr. Cohne followed him “out onto the street and committed” a second assault and battery against him, “using a baton as a weapon.” Mr. Yianacopolus alleged that Mr. Cohne was “at all times. .. acting within the scope of his employment duties” and “under the direction and control” of his employer.
For Mr. Cohne’s part, he claimed that the incident began by him verbally telling Mr. Yianacopolus not to enter, but Mr. Yianacopolus “proceeded to throw his shoulder into [him] while making threatening remarks.” Mr. Cohne claimed that he then “made physical contact” with Mr. Yianacopolus in a continued effort to prevent him from going inside, after which “Mr. Yianacopolus subsequently threw a punch at [him].” Mr. Cohne stated that at that point he “feared for [his] own personal safety,” so he again “made physical contact with [Mr. Yianacopolus].”
The lawsuits against Mr. Cohne and the Club
In November 2016, Mr. Yianacopolus sued Mr. Cohne for negligence and assault and battery claim and the Club for its legal responsibility for Mr. Cohne’s alleged actions.
In his negligence claim, Yianacopolus alleged that Mr. Cohne’s breach of his duty to use reasonable care as a doorman in failing to take steps that a reasonable doorman/bouncer would have taken to prevent Mr. Yianacopolus from re-entering the bar, such as providing a verbal warning; and using excessive force in preventing him from re-entering the bar.
In July 2017, another patron who was an acquaintance of Mr. Yianacopolus and present with Mr. Yianacopolus on August 19, 2014, at the Club filed suit against Mr. Cohne and the Club. He alleged that Mr. Cohne while acting as a bouncer of the Club “in the due course of his employment…without provocation, right, or reason, struck and beat [him] with a metal baton and caused [him] severe physical injuries.” The complaint against Mr. Cohne includes one count of “Negligent and Excessive Force,” which alleged that Mr. Cohne “negligently caused and did cause (sic) a harmful contact with [his] person.”
Mr. Cohne through counsel tendered the defense and indemnity of Mr. Yianacopolus lawsuit and the other patron’s lawsuit to Navigators in April and August of 2017, respectively. Navigators denied Mr. Cohne any defense or indemnity under the Club’s liability policy.
In response, Mr. Cohne filed a declaratory judgment against Navigators in the Massachusetts Superior Court. He alleged Navigators had failed to defend him and thereby breached its insurance contract, breached its covenant of good faith and fair dealing, and violated the unfair claim practice act, M.G.L. c. 93A and M.G.L. c. 176D.
Navigators removed the state court suit to the federal district court in Boston under that court’s diversity jurisdiction for suits between residents of different states. In this case, Mr. Cohne being a resident of Massachusetts and Navigators being a New York corporation.
Summary judgment for Navigators
After a motion for judgment on the pleadings the district court denied without prejudice and some discovery, Mr. Cohne moved for summary judgment alleging there were no disputed issues of material facts and that he was entitled to summary judgment as a matter of law.
Navigators opposed the motion but did not file a cross-motion for summary judgment. The Judge agreed with Mr. Cohne’s motion that there were no issues of material facts, but he ruled that Navigator’s and not Mr. Cohne was the part entitled to summary judgment.
Court first rules assault was within the scope of employment and for the benefit of the Club
While Navigator’s policy provided for the Club’s employees as insureds, it provided coverage to the employees “only for acts within the scope of [their] employment by [the Club] or while performing duties related to the conduct of [the Club].”
Navigators argued to the Court that Mr. Cohne’s assault and battery could not be related to the Club’s business, and therefore, Mr. Cohne was not an insured.
The Court in response to this argument noted that under Massachusetts law, an employee’s conduct falls within the scope of his employment if it: (1) “is of the kind he is employed to perform”; (2) “occurs substantially within the authorized time and space limits”; and (3) “is motivated, at least in part, by a purpose to serve the employer.”
The Court addressed each of the elements, in turn, concerning whether the assault was within the scope of Mr. Cohne’s employment concluding:
- The alleged assault was committed when Mr. Cohne was performing his duty as a bouncer at the Club’s door to protect the safety of its patrons, and thus his conduct met the first test. He was doing the work he was employed to perform.
- The second condition was satisfied because the alleged assault occurred at the Club where he was employed and during his work shift.
- The third condition also applied because the alleged assault occurred when Mr. Yianacopolus demanding entry into the Club interfered with Mr. Cohne’s ability to perform his duty to protect the Club and prevent unauthorized access. Mr. Cohne’s action was in direct response to this interference.
As a result, the Court found that Mr. Cohne acted within the scope of his employment when committing the alleged assault and was “an ‘insured’ under the policy because he acted within the scope of his employment when committing the first alleged assault.”
The Court finds any coverage for Mr. Cohne excluded by an assault and battery endorsement
The Club’s policy had the standard insuring agreement with a nonstandard exception to the expected or intended injury exclusion.
The insuring agreement provided:
We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages. However, we will have no duty to defend the insured against any “suit” seeking damages for “bodily injury” or “property damage” to which this insurance does not apply…”
The first policy exclusion applied to expected or intended injuries and provided the coverage did not apply to:
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“Bodily injury” or “property damage” expected or intended from the standpoint of the insured.
Ordinarily, the first sentence would operate as a possible bar to an intentional act such as Mr. Cohne’s assault. However, the exclusion had a second sentence which had an exception that stated:
“This exclusion does not apply to ‘bodily injury’ resulting from the use of reasonable force to protect persons or property.”
If the policy had no additional endorsements, Mr. Cohne would seemingly have had at least defense coverage.
However, the policy also had a broad endorsement excluding “bodily injury” or “personal injury” arising from:
- A. assault and/or battery committed or alleged to have been committed by any person; or
* * *
any act or omission connected directly or indirectly with the prevention or suppression of any act indicated in [item A] …including the protection of persons or property, whether caused by or at the instigation or direction of any insured, an insured’s employee, an insured’s patrons or guests, or volunteers working for or on behalf of an insured, or any other person.
While this endorsement seemed to provide a blanket exclusion for assault and battery, the second part of the endorsement provided a sublimit for just such claims stating:
- II. Notwithstanding the foregoing, we shall pay up to the following amounts you become obligated to pay for all damages and claim expenses which result from claims or “suits” based on allegations of any of the acts or omissions in item I above.
$250,000 any one claim or suit.
$250,000 aggregate for the policy period.
Mr. Cohne not being a Named Insured sinks his coverage claim
Mr. Cohne argued that: (1) he was an “an insured” under the policy; (2) the two underlying complaints state negligence claims covered by the policy; and that (3) he qualified as a “Named Insured,” so even if the policy would not ordinarily cover the assault allegations in the lawsuits against him, they are covered, at least up to $250,000 by the second part of the assault and battery endorsement.
The Judge ruled based on this endorsement’s terms that the policy excluded from coverage “bodily injury” arising from “assault and/or battery committed or alleged to have been committed by any person.”
The Court found this exclusion unambiguously applied, as its terms included any assault and battery claims “regardless of the legal theory or basis upon which the insured is alleged to be legally liable or responsible, in whole or in part, for any Damages arising out of assault [or] battery,. .. including but not limited to assertions of improper or negligent hiring, employment or supervision, failure to protect the other party, [or] failure to prevent the assault [or] battery.”
As to the second part of the endorsement, which provided that Navigators:
shall pay up to the following amounts you become obligated to pay for all damages and claim expenses which result from claims or ‘suits’ based on allegation of any of the acts or omissions” [of assault and battery].” (Emphasis added).
The Court found that this exception to the exclusion turned on the meaning of the term, “You.”
The Judge ruled that the policy’s definition applied which stated:
Throughout this policy the words “you” and “your” refer to the Named Insured shown in the Declarations, and any other person or organization qualifying as a Named Insured under this policy.”
The Judge ruled that although Mr. Cohne qualified as an “insured” under the policy, and not a Named Insured.
To the Court, the second part of the endorsement was unambiguous. The Club—the Named Insured under the policy—would have coverage found at the second part of the endorsement, up to the aggregate sublimit of $250,000, if it were found vicariously liable in a lawsuit based on allegations of assault and battery.
However, the Judge found that Mr. Cohne, who was not a Named Insured since he was not a “you” as that is defined in the policy—could not avail himself of the limited coverage provided by the second section of the endorsement. Without that designation of Mr. Cohne as a Named Insured, the first part of the endorsement, in the Judge’s opinion, operated as a complete exclusion for the assault and battery suits for which Mr. Cohne was seeking coverage.
Court enters judgment declaring Navigators has no duty to defend or indemnify
The Court ended its decision with the ruling in favor of Navigators stating:
“For the foregoing reasons, this Court DENIES Cohne’s motion for summary judgment… and declares that Navigators has no duty to defend Cohen in either the Mr. Yianacopolus or the [other] action. (Emphasis in original).
