United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE.
matter is before the Court on Plaintiff Catlin Specialty
Insurance Group's motion for summary judgment. For the
reasons set forth below, the Court grants the motion.
Jesse Bass alleges that on December 6, 2012, Cedrick Price, a
bouncer at a bar owned by Defendant Frank Clyburn and
Defendant RFB, Inc. (together, "Henry's"),
struck him with force sufficient to knock him unconscious and
to inflict serious brain injury. (Dkt. No. 1-1 ¶ 23.)
The bouncer was employed by Elite Security Services LLC, a
business that provides nightclub security services.
(Id. ¶ 14.) On June 15, 2015, Mr. Bass filed a
federal lawsuit against Henry's, Elite Security, and Mr.
Price. Bass v. RFB, Inc., Civ. No. 2:15-2410-RMG. In
that matter, claims against Elite Security have settled and
Mr. Price is in default. Regarding Henry's, Mr. Bass
asserts a claim of negligence, alleging Henry's breached
its duty to exercise reasonable car in the hiring,
supervision, and retention of Elite Security.
Catlin Specialty Insurance Group issued a commercial general
liability ("CGL") policy to Henry's that was in
effect at the time of the incident. (Dkt. No. 1-2.) Catlin is
defending Henry's in the underlying lawsuit, subject to a
reservation of rights. The policy limit is $1 million per
occurrence. (Id. at 8.) It, however, has an Assault
and Battery Endorsement that sets a sublimit of $25, 000 per
occurrence. (Id.) On September 16, 2016, Catlin
filed the present action seeking a declaration that the
Assault and Battery Endorsement applies to Mr. Bass's
claim against Henry's. (Dkt. No. 1.) The underlying
litigation has been stayed pending resolution of the present
judgment is appropriate if a party "shows that there is
no genuine dispute as to any material fact" and that the
movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). In other words, summary judgment should
be granted "only when it is clear that there is no
dispute concerning either the facts of the controversy or the
inferences to be drawn from those facts." Pulliam
Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir.
1987). "In determining whether a genuine issue has been
raised, the court must construe all inferences and
ambiguities in favor of the nonmoving party." Health
South Rehab. Hosp. v. Am. Nat'l Red Cross, 101 F.3d
1005, 1008 (4th Cir. 1996). The party seeking summary
judgment shoulders the initial burden of demonstrating to the
court that there is no genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
the moving party has made this threshold demonstration, the
non-moving party, to survive the motion for summary judgment,
may not rest on the allegations averred in his pleadings.
Id. at 324. Rather, the non-moving party must
demonstrate that specific, material facts exist that give
rise to a genuine issue. Id. Under this standard,
"[c]onclusory or speculative allegations do not suffice,
nor does a 'mere scintilla of evidence'" in
support of the non-moving party's case. Thompson v.
Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.
2002) (quoting Phillips v. CSX Transp., Inc., 190
F.3d 285, 287 (4th Cir. 1999)).
sole question before the Court is whether the CGL
policy's assault and battery sublimit applies to December
6, 2012 incident in which Mr. Bass was injured. The sublimit
applies to claims for bodily injury, personal injury,
advertising injury, or property damage
arising from an assault and battery or out of any act or
omission in connection with the prevention, suppression, or
failure to protect or suppress such acts including the
failure to warn, train, or supervise, whether caused by or at
the instigation or direction of the insured, his employees,
patrons, or other person.
(Dkt. No. 1-2 at 6.) In South Carolina, an assault is conduct
that places another "in reasonable fear of bodily harm,
" and a battery is "the actual infliction of any
unlawful, unauthorized violence on the person of
another." Mellen v. Lane, 659 S.E.2d 236, 244
(S.C. Ct. App. 2008). Mr. Bass alleges he was struck in the
head, knocking him unconscious by Mr. Price. (Dkt. No. 1-1
¶ 23.) Witnesses to the incident have averred likewise.
(Dkt. Nos. 31-2 & 31-3.) Mr. Bass has testified that he
was "attacked." (Dkt. No. 23-2 at 3.) There is no
genuine dispute that Mr. Bass's alleges his injuries
arise from an assault and battery that occurred on December
Bass indeed does not contest that Mr. Price battered Mr.
Bass, but he sue Henry's for negligence, not the
intentional torts of assault and battery. (Dkt. No. 1-1.)
That is a common pleading practice. Insurers who insure bars
are reluctant to insure the bar against liability for barroom
fights or for the actions of bouncers. In response,
plaintiffs often attempt to plead into coverage by asserting
negligence-attempts federal and state courts routinely
reject. See, e.g., Mount Vernon Fire Ins. Co. v.
Creative Hous. Ltd., 93 F.3d 63, 66 (2d Cir. 1996);
Scottsdale Ins. Co. v. Moonshine Saloon, LLC, No.
2:16-CV-0797-DCN, 2017 WL 68794, at *4 (D.S.C. Jan. 6, 2017);
Mt. Vernon Fire Ins. Co. v. Dobbs, 873 F.Supp.2d
762, 767 (N.D. W.Va. 2012); Versatility, Inc. v. Capitol
Indem. Corp., No. 2;10-942-JCM-PAL, 2011 WL 3444187, at
*3 (D. Nev. Aug. 5, 2011); Downtown Norfolk Entm 't,
Inc. v. Penn-Am. Ins. Co., 660 F.Supp.2d 669, 675 (E.D.
Va. 2008); St. Paul Reinsurance Co. v. Ollie 's
Seafood Grille & Bar, LLC, 242 F.R.D. 348, 351
(D.S.C. 2007), off d sub nom. St. Paul Reinsurance Co. v.
Riviello, 296 F.App'x 377 (4th Cir. 2008);
Kamaki Skiathos, Inc. v. Essex Ins. Co., 396
F.Supp.2d 624, 629 (D. Md. 2005); Capitol Indem. Corp. v.
Blazer, 51 F.Supp.2d 1080, 1088 (D. Nev. 1999);
Hermitage Ins. Co. v. Dahms, 842 F.Supp. 319, 326
(N.D. 111. 1994); Eady v. Capitol Indem. Corp., 502
S.E.2d 514, 516 (Ga.Ct.App. 1998); Essex Ins. Co. v.
Fieldhouse, Inc., 506 N.W.2d 772, 776 (Iowa 1993);
Capitol Indem. Corp. v. Callis, 963 S.W.2d 247, 250
(Mo.Ct.App. 1997); Berg v. Schultz, 526 N.W.2d 781,
783 (Wis. Ct. App. 1994).
cases express two principles that apply fully to the present
case. First, "[a]lthough the injuries may have been
caused by the negligent acts of the defendant, that does not
necessarily mean that they did not arise out of an assault
and/or battery." Callis, 963 S.W.2d at 250.
Second, plaintiffs "cannot mischaracterize intentional
acts as negligence claims in order to avoid the exclusions
contained within the insurance policy." Dobbs,
873 F.Supp.2d at 766. In this case, even if Henry's was
negligent, and even if that negligence proximately caused Mr.
Bass's injuries, Mr. Bass's injury nonetheless arises
out of an alleged battery. Mr. Bass cannot avoid a policy
sublimit by mischaracterizing Mr. Price's admittedly
intentional act as negligence. Simply put, if a sublimit ...