Appellate Court Confirms that “Assault or Battery” Exclusion Did Not Require Direct “Body-to-Body” Contact

September 30, 2013 | Insurance Coverage

A California appellate court has ruled that the term “physical contact” in an insurance liability policy’s “Assault or Battery” exclusion did not require direct “body-to-body” contact.  

The Case 

A nightclub dancer was injured when a patron threw flammable liquid on her and then set her on fire. She sued the club. 

The club’s insurance carrier sought a declaratory judgment that it had no duty to indemnify the club for any claim arising from the incident, relying on the “Assault or Battery” exclusion in the liability policy it had issued to the club. 

In response, the dancer argued that the exclusion’s definition of battery required actual “body-to-body” physical contact, which had not occurred here. 

The trial court agreed with the insurer and granted its summary judgment motion. The dancer appealed. 

The Appellate Court’s Decision 

The appellate court affirmed, finding that the”Assault or Battery” exclusion barred coverage. 

It found “no question” that the policy’s definition of battery extended to the intentional attack made on the dancer. In the appellate court’s view, the exclusion’s definition of battery as “physical contact with another” did not distinguish between directly striking an individual and striking an individual through an intermediary object. 

Accordingly, it concluded, the club’s insurance policy did not provide coverage for the dancer’s damages despite her attempt to argue that “physical contact,” as provided in the exclusion, required direct body-to-body contact. 

The case is Mount Vernon Fire Ins. Co. v. Busby, No. B244569 (Cal. Ct. App. Sept. 16, 2013).

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