Robinson v. Hudson Speciality Insurance Group et al

Filing 51

ORDER granting Hudson's 30 Motion for Summary Judgment; granting Colony's 38 Motion for Summary Judgment as set out. Signed by Judge Kristi K. DuBose on 10/22/2013. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARCUS JAMES ROBINSON,
Plaintiff,

)
)
)
)
)
)
)
)

v.
HUDSON SPECIALITY INSURANCE
GROUP, et al.,
Defendants.

CIVIL ACTION NO. 13-00114-KD-M

ORDER
This matter is before the Court on Defendant Hudson’s Motion for Summary Judgment
(Docs. 30-31), Plaintiff’s Response (Docs. 43-44), and Hudson’s Reply (Doc. 47); and
Defendant Colony’s Motion for Summary Judgment (Docs. 38-39), Plaintiff’s Response (Doc.
48), and Defendant’s Reply (Doc. 49).
I.

Findings of Fact1 & Procedural Background
On the evening of November 8, 2009, Plaintiff Marcus Robinson (“Robinson”) joined a

group of friends at a Mobile, Alabama nightclub called “Club Atlantis.” The night out, to
celebrate a friend’s birthday, proved nearly fatal.

While leaving Club Atlantis, two (2)

unknown men shot Robinson twice with a .25 caliber gun and three times with a .38 caliber gun.
Robinson survived, but was left with significant and permanent injuries to his abdomen, left
chest/lung, left flank, and left arm.

This case concerns the litigation which ensued.

Specifically, on October 19, 2011, Robinson filed suit in the Circuit Court of Mobile

1 At the summary judgment stage, the facts are taken in the light most favorable to the non-movant. Tipton
v. Bergrohr GMBH–Siegen, 965 F.2d 994, 998-999 (11th Cir. 1992). The “facts, as accepted at the summary
judgment stage of the proceedings, may not be the actual facts of the case.” Priester v.. City of Riviera Beach, 208
F.3d 919, 925 n. 3 (11th Cir. 2000).

1

County, Alabama against Crown Theater, Inc. (“Crown Theater”) (the entity which owns Club
Atlantis) and other defendants, asserting claims for negligence, wantonness, negligent/wanton
training, monitoring and supervision of employees, joint venture, breach of contract third-party
beneficiary, and for violating Alabama’s Dram Shop Act (CV 2011-902312).

(Doc. 39-1).

Crown Theater notified its insurers (Hudson Specialty Insurance Group, Inc. (“Hudson”) and
Colony Insurance Company, Inc. (“Colony”))2 and requested a defense and indemnity under its
insurance policies for any judgment that might be rendered against it.
coverage and refused to defend Crown Theater.

The insurers denied

On November 1, 2011, Hudson specifically

denied coverage on the basis of an absolute assault/battery exclusion in its liquor liability policy
with Crown Theater.

(Doc. 30-1).

The case was tried via bench trial and on September 18,

2012, judgment was rendered in favor of Crown Theater on Robinson’s claims for assault,
battery and wantonness; and in favor of Robinson and against Crown Theater, for negligence and
under the Alabama Dram Shop Act in the amount of $500,000. (Doc. 39-2).
On September 18, 2012, the underlying action for direct action/garnishment was initiated
by Robinson against Hudson, Colony, and other fictitious defendants, in the Circuit Court of
Mobile County, Alabama (CV-2013-900249).

(Doc. 1-1).

Filed pursuant to Ala. Code §

27-23-23 (1975), Robinson seeks garnishment and collection of the insurance money -- that he

2 Colony issued a general commercial liability policy to Crown Theater effective April 1, 2009-April 2,
2010, with $2,000,000 limits. Hudson issued a liquor liability policy (HSLL-06445) to Crown Theater effective
July 20, 2009-July 20, 2010 with $100,000 limits. (Doc. 1-7).
3 “Upon the recovery of a final judgment against any person, firm, or corporation by any person, including
administrators or executors, for loss or damage on account of bodily injury, or death or for loss or damage to
property, if the defendant in such action was insured against the loss or damage at the time when the right of action
arose, the judgment creditor shall be entitled to have the insurance money provided for in the contract of insurance
between the insurer and the defendant applied to the satisfaction of the judgment, and if the judgment is not satisfied
within 30 days after the date when it is entered, the judgment creditor may proceed against the defendant and the
insurer to reach and apply the insurance money to the satisfaction of the judgment.”

2

asserts is owed to him under the relevant insurance policies -- to satisfy the $500,000 judgment
rendered by the state court against Crown Theater in CV 2011-902312. (Id. at 4).

Robinson

contends that the claims upon which judgment was rendered (negligence and the Alabama Dram
Shop Act) are covered under the insurance policies issued to Crown Theater by Hudson and
Colony.

(Id. at 3).

Defendants Hudson and Colony removed the case to this Court on the basis of diversity.4
Presently, Hudson moves for summary judgment on the grounds that the assault and battery
exclusion, in the liquor liability insurance policy issued to Crown Theater, is absolute and bars
recovery by Robinson.

Colony moves for summary judgment on the basis that the assault and

battery, liquor, and weapons exclusions, in the general commercial liability policy it issued to
Crown Theater, present a complete bar to Robinson’s coverage claims.
II.

Conclusions of Law
“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
R. CIV. P. 56(a).

FED.

Rule 56(c) provides as follows:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.
4 In so doing, Hudson realigned Crown, the non-diverse defendant, as a plaintiff, due to its interests in this
action. (Doc. 1 at 2, 4-5). This Court found such realignment proper, after considering the merits of Plaintiff’s
motion to remand. (Docs. 23, 34).

3

(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party
may object that the material cited to support or dispute a fact cannot be presented
in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it
may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.
FED.R.CIV.P. Rule 56(c) (Dec. 2010).
The party seeking summary judgment bears “the initial burden to show the district court,
by reference to materials on file, that there are no genuine issues of material fact that should be
decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). The party
seeking summary judgment “always bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Clark, 929 F.2d at 608.
Once the moving party has satisfied its responsibility, the burden shifts to the nonmovant
to show the existence of a genuine issue of material fact. Id. “In reviewing whether the
nonmoving party has met its burden, the court must stop short of weighing the evidence and
making credibility determination of the truth of the matter. Instead, the evidence of the
nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v.
Bergrohr GMBH–Siegen, 965 F.2d 994, 999 (11th Cir. 1992) (citing Anderson v. Liberty Lobby,
477 U.S. 242, 255 (1986)); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–159 (1970).
However, “[a] moving party is entitled to summary judgment if the nonmoving party has ‘failed
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to make a sufficient showing on an essential element of her case with respect to which she has
the burden of proof.’” In re Walker, 48 F.3d 1161, 1163 (11th Cir. 1995).

Overall, the Court

must “resolve all issues of material fact in favor of the [non-movant], and then determine the
legal question of whether the [movant] is entitled to judgment as a matter of law under that
version of the facts.”

McDowell v. Brown, 392 F.3d 1283, 1288 (11th Cir. 2004).

The applicable Rule 56 standard is not affected by the filing of cross-motions for
summary judgment.

See, e.g., Am. Bankers Ins. Group v. United States, 408 F.3d 1328, 1331

(11th Cir. 2005); Gerling Global Reins. Corp. of Am. v. Gallagher, 267 F.3d 1228, 1233 (11th
Cir. 2001).

“Cross-motions for summary judgment will not, in themselves, warrant the court in

granting summary judgment unless one of the parties is entitled to judgment as a matter of law
on facts that are not genuinely disputed.”
Cir. 1984) (citation omitted).

United States v. Oakley, 744 F.2d 1553, 1555 (11th

The Court is mindful that “[w]hen both parties move for

summary judgment, the court must evaluate each motion on its own merits, resolving all
reasonable inferences against the party whose motion is under consideration.” Muzzy Prods.,
Corp. v. Sullivan Indus., Inc., 194 F.Supp.2d 1360, 1378 (N.D. Ga. 2002)).

The Court has

reviewed the facts submitted by each party and has made its own examination of the record.
A.

Robinson’s Claims

In Counts One and Two of Robinson’s state court action, Robinson asserts that Crown
Theater was negligent by allowing an unreasonably dangerous condition to exist and/or failing to
maintain the premises in a reasonably safe condition (by causing or allowing weapons to be
brought into the club and failing to warn of the foreseeable hazards and discover/ eliminate
hazardous and/or unsafe conditions).

Additionally, Robinson alleged that Crown Theater was
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negligent by allowing patrons to remain on the premises when their disorderly conduct had
become “so obstreperous and aggressive…that Defendants should have known that others were
likely in danger[]” yet failed to demand that they leave the premises.

In Counts Six and Seven,

Robinson asserted that Crown Theater negligently violated Alabama’s Dram Shop Act by giving
the patrons alcohol while knowing they were intoxicated and causing disturbances, as well as by
allowing them to be on the premises with weapons (and while serving them alcohol in an
intoxicated state).
As noted supra, Robinson filed the present action pursuant to Alabama’s direct-action
statute, Section 27-23-2, Ala. Code (1975).

Section 27-23-2 provides, in relevant part, that:

Upon the recovery of a final judgment against any person, firm, or corporation by any
person … for loss or damage on account of bodily injury … if the defendant in such
action was insured against the loss or damage at the time when the right of action arose,
the judgment creditor shall be entitled to have the insurance money provided for in the
contract of insurance between the insurer and the defendant applied to the satisfaction of
the judgment, and if the judgment is not satisfied within 30 days after the date when it is
entered, the judgment creditor may proceed against the defendant and the insurer to reach
and apply the insurance money to the satisfaction of the judgment.
In other words, for purposes of the present case, Robinson effectively stands in the shoes of the
insured (Crown Theater) subject to all coverage defenses that would be available to the insurer
(Colony) had the action been brought by the insured (Crown Theater).

See, e.g., Travelers

Indemnity Co. of Conn. v. Miller, 86 So.3d 338, 342 (Ala. 2011) (explaining the statute and that
the injured party’s rights under the tortfeasor’s insurance policy are derivative); Nationwide Mut.
Fire. Ins. Co. v. Estate of Files, 10 So.3d 533, 534-535 (Ala. 2008) (discussing the statute and
noting that the injured party acquires a vested interest as to the insured’s rights under the policy
such that the terms of the policy imposing obligations on the insured are effective as against the
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injured party).

Bearing this in mind, the Court turns to the applicable Alabama law and the

parties’ respective motions.
B.

Discussion5

In Alabama, “[g]eneral rules of contract law govern an insurance contract.”
Ins. Co. of Ala., Inc. v. Herrera, 912 So.2d 1140, 1143 (Ala. 2005).

Safeway

“In the absence of statutory

provisions to the contrary, insurance companies have the same right as individuals to limit their
liability, and to impose whatever conditions they please upon their obligations not inconsistent
with public policy; and the courts have no right to add anything to their contracts or to take
anything from them.”

Upton v. Miss. Valley Title Ins. Co., 469 So.2d 548, 554 (Ala. 1985)

(quoting Life & Cas. Ins. Co. v. Whitehurst, 148 So. 164 (1933) (internal quotations omitted)).
However, Alabama courts have held that an insurance policy “shall be construed liberally
in favor of the insured and strictly against the insurer. Exclusions are to be interpreted as
narrowly as possible, so as to provide maximum coverage for the insured, and are to be
construed most strongly against the insurance company, which drafted and issued the policy.”
Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379-380 (Ala. 1996) (internal citations omitted).
“To the extent the language of an insurance policy provision is ambiguous, all ambiguities must
be resolved against the insurance company.”

Safeway Ins. Co., 912 So.2d at 1143.

Nevertheless, “[i]nsurance companies are entitled to have their policy contracts enforced as
written, rather than risking their terms either to judicial interpretation or the use of straining
language, and the fact that different parties contend for different constructions does not mean
5 This Court has Section 1332 diversity jurisdiction over this case, and the substantive law of Alabama
applies to same because the parties do not dispute that the insurance contract was made in Alabama or that Alabama
was the site of the conduct giving rise to the assault/battery alleged. See, e.g., Colonial Life & Accident Ins. Co. v.
Hartford Fire Ins. Co., 358 F.3d 1306, 1308 (11th Cir. 2004); Cherry, Bekaert & Holland v. Brown, 582 So.2d 502,
506 (Ala. 1991); Cincinnati Ins. Co. v. Girod, 570 So.2d 595, 597 (Ala. 1990).

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that the disputed language is ambiguous.” Woodall v. Alfa Mut. Ins. Co., 658 So.2d 369 (Ala.
1995) (quoting Gregory v. Western World Ins. Co., 481 So.2d 878, 881 (Ala. 1985) (internal
citations and quotations omitted)).
“Whether a provision of an insurance policy is ambiguous is a question of law[,]”
Safeway Ins. Co., 912 So.2d at 1143, and “[t]he test to be applied by [a] court in determining
whether there is ambiguity is not what the insurer intended its words to mean, but what a
reasonably prudent person applying for insurance would have understood them to mean…In
determining whether an ambiguity exists, a court should apply the common interpretation of the
language alleged to be ambiguous….This means that the terms of an insurance policy should be
given a rational and practical construction.”

Porterfield v. Audubon Indem. Co., 856 So.2d

789, 799 (Ala. 2002) (internal citations and quotations omitted).

See also American Resources

Ins. Co. v. H&H Stephens Const., Inc., 939 So.2d 868, 873 (Ala. 2006) (discussing the
reasonably prudent person standard – i.e., that the terms of a policy should be given a rational
and practical construction).
“Under Alabama law, the insured bears the burden of establishing coverage by
demonstrating that a claim falls within the policy[.]” Auto–Owners Ins. Co. v. Toole, 947 F.
Supp. 1557, 1561 (M.D. Ala. 1996) (citing Colonial Life & Accident Ins. Co. v. Collins, 194
So.2d 532, 535 (Ala. 1967) and U.S. Fidelity & Guarantee Co. v. Armstrong, 479 So.2d 1164,
1168 (Ala. 1985)).

However, the burden shifts and the “insurer bears the burden of proving the

applicability of any policy exclusion.”
1.

Id.

Colony’s Motion for Summary Judgment

Colony moves for summary judgment on the basis that the general commercial liability
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policy it issued to Crown Theater excludes coverage for assault/battery, use of weapons, and
liquor liability, such that the policy bars Robinson’s Ala. Code § 27-23-2 claim for recovery of
the $500,000 state court judgment.
Construing the allegations in the light most favorable to Robinson, as this Court must do
on summary judgment, each of Robinson’s claims are based on bodily injuries arising out of an
assault/battery, use of guns (weapons), and/or liquor liability. Robinson, however, can only
recover against Colony if the insured, Crown Theater, was insured against the loss or damage at
the time when the right of action arose (i.e., at the time of the shooting).

This means that the

Colony policy must provide for coverage (and not exclude) the acts alleged by Robinson.
Despite the varied manner in which Robinson alleges his negligence and Alabama Dram Shop
Act claims (whether failure to warn, protect, supervise, prevent weapons from coming into the
club, failing to stop serving alcohol, etc.), a review of the Colony policy reveals clear and
unambiguous exclusions which apply to bar his Section 27-23-2 claim.
a.

Assault and Battery

Endorsement U006-0707 of the Colony Policy, the assault/battery exclusion, provides, in
relevant part, that Colony shall not be liable for damages or expenses due to:
…“bodily injury”… arising out of or resulting from: (1) “Assault”, “Battery” or “Assault
and Battery” committed by any person; (2) the failure to suppress or prevent “Assault”,
“Battery” or “Assault and Battery” by any person; (3) the failure to provide an
environment safe from “Assault”, “Battery” or “Assault and Battery;” (4) the failure to
warn of the dangers of the environment which could contribute to “Assault”, “Battery” or
“Assault and Battery”; [and] (5) “Assault”, “Battery” or “Assault and Battery” arising out
of the negligent hiring, supervision, or training of any person…
(Doc. 39-4 at 16).
There is no coverage under Ala. Code § 27-23-2 for Robinson’s allegations because they
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are clearly predicated on events to which the Colony assault and battery exclusion applies.

The

injury Robinson alleges arises out of or results from an assault/battery committed by two (2)
unknown individuals who are alleged by Robinson to have discharged two (2) firearms, shooting
him five (5) times.

In Colony Ins. Co. v. Griffin, 2007 WL 4181738, *7 (M.D. Ala. Nov. 26,

2007), a nearly identical assault and battery exclusion in a Colony insurance policy was found to
negate coverage for claims against an insured bar.

See also e.g., Southern Pioneer Prop. & Cas.

Ins. Co. v. Bennett, 2010 WL 2976555, *2-3 (M.D. Ala. Jul. 27, 2010) (finding a similar
unambiguous assault/battery exclusion to apply).

As such, Colony’s motion for summary

judgment is GRANTED as to the assault/battery exclusion.
b.

Use of Weapons

Endorsement U147-0702 of the Colony Policy, the weapons exclusion, provides that
“this insurance does not apply to ‘bodily injury,’ … arising out of or resulting from the
possession, ownership, maintenance, use of or threatened use of a lethal weapon, including but
not limited to firearms by any person.”

(Doc. 39-4 at 22).

Each and every bodily injury

alleged by Robinson stems from the fact that he was shot five (5) times with a weapon while at
Crown Theater’s club.

Robinson’s injuries fall squarely within the weapons exclusion of

Colony’s policy; thus, Robinson cannot recover from Colony under Ala. Code § 27-23-2.

As

such, Colony’s motion for summary judgment is GRANTED as to the weapons exclusion.
c.

Alabama Dram Shop Act

Endorsement U087-0702 of the Colony Policy, the total liquor liability exclusion,
provides that this insurance does not apply to: “‘Bodily injury’ … for which any insured may be
held liable by reason of: (1) Causing or contributing to the intoxication of any person; (2) The
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furnishing of alcoholic beverages to a person under the legal drinking age or under the influence
of alcohol; or (3) Any statute, ordinance or regulation relating to the sale, gift, distribution or use
of alcoholic beverages.”

(Doc. 39-4 at 21).

As alleged, the basis for Robinson’s Alabama

Dram Shop Act claim is that Crown Theater’s club unlawfully provided alcoholic beverages to
the shooters (people under the influence of alcohol).

Robinson’s negligence claims are

inextricably intertwined with his alcohol claims, which fall under what are clear and
unambiguous terms of the Colony liquor liability exclusion.

See, e.g., State Auto Mut. Ins. Co.

v. Lucchesi, 2012 WL 2009355, *5 (M.D. Pa. Jun. 5, 2012). As such, Colony’s motion for
summary judgment is GRANTED as to the liquor liability exclusion.
2.

Hudson’s Motion for Summary Judgment

Hudson concedes that the policy includes coverage for dram shop claims.
based on the facts of this case, recovery for Robinson’s injuries is excluded.

However,

Specifically,

Hudson’s contends that the assault and battery exclusion in its liquor liability policy is an
absolute exclusion barring any/all claims for assault/battery.

From this, Hudson asserts that

Matthews’ Ala. Code § 27-23-2 insurance garnishment claim, for recovery of the $500,000 state
court judgment, fails.
The Hudson policy assault/battery exclusion provides as follows:
Assault & Battery Exclusion -Absolute
This insurance does not apply to claims arising out of an assault and/or
battery, whether caused by or at the instigation of, or at the direction of, or
omission by, the insured, and/or his employees.
(Doc. 1-7 at 8).
At the outset, Hudson contends that the section heading’s inclusion of the word
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“Absolute” renders the assault/battery exclusion absolute in every manner.
and title sections within contracts do not control their interpretation.

However, headings

See, e.g., Wayne J. Griffin

Elec., Inc. v. Dunn Const. Co., 622 So.2d 314, 317 (Ala. 1993) (providing that “the designation
that a party gives to an instrument, i.e., the title of a document or the caption of a provision, does
not alter the meaning of the contents of the document-it does not control the interpretation or
construction of the document, the legal effect of the document, or the relationship of the parties;
and it does not determine the nature or character of the document[]”).

However, as written, the

exclusion bars claims arising out of an assault/battery -- caused by, at the instigation of, at the
direction of, or omission by -- the insured and/or his employees. The wording of this exclusion
is clear and unambiguous.

The exclusion applies in at least four (4) circumstances: 1)

assault/battery caused by the insured and/or his employees; 2) assault/battery at the instigation of
the insured and/or his employees; 3) assault/battery at the direction of the insured and/or his
employees; and 4) assault/battery due to an omission by the insured and/or his employees.
Hudson asserts that the use of the word “omission” in the exclusion means “in this
context is that the assault and/or battery was caused by something the insured or his employees
neglected or failed to do, which is significantly broader than merely saying the assault and/or
battery was actively done by the insured or his employees.”

(Doc. 47 at 4).

Hudson

references Seventh and Second Circuit case law as support for its claim that the exclusion applies
via use of the word “omission.” See generally United Nat. Ins. Co. v. Entertainment Group,
Inc., 945 F.2d 210, 212-215 (7th Cir. 1991) (holding that the exclusion in liability policy for any
claim asserting cause of action arising out of assault and/or battery if caused by omission by
insured and/or his employees precluded coverage in negligence action alleging that minor
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customer was sexually assaulted in insured theater's washroom due to theater's failure to take
certain precautions) and United Nat. Ins. Co. v. Waterfront New York Realty Corp., 994 F.2d
105, 109-110 (2nd Cir. 1993) (holding that a patron’s cause of action alleging negligent
maintenance of nightclub's bathrooms was excluded from coverage under nightclub's liability
policy by assault and battery exclusion -- the action was premised upon rape and sodomy of
patron caused by an “omission by” the nightclub).

Hudson is correct.

In his state court complaint, Robinson claims that even though security officers were
present and observed three (3) male patrons -- who appeared intoxicated, were harassing others,
were causing disturbances and were trying to start fights -- the men were allowed by Crown
Theater to remain on the club premises.
Robinson multiple times later that night.

(Doc. 1-6 at 6).

Two of these men ultimately shot

From this, Robinson alleges that Crown Theater failed

to warn him of the dangers with weapons at the club, failed to ensure no weapons would be
brought into the club, failed to exercise reasonable care in serving intoxicating liquors, failed to
maintain safety and order, and failed to protect him from assault/battery.

(Doc. 1-6).

Robinson then alleges numerous specific ways in which the Crown Theater was negligent, and
that this negligence resulted in the assault/battery (shooting) which proximately caused his
injuries.

(Doc. 1-6 at 8-17).

As alleged, Robinson’s negligence claim clearly “arises out of” the assault/battery caused
by omissions on the part of Crown Theater and/or its employees – i.e., the club’s failure to
maintain safety and order resulting in him being shot five (5) times.

In other words, but for the

assault/battery (the shooting), Robinson would have no negligence claim because he would have
had no injury.

Here, there is only one set of indivisible injuries suffered by Robinson, the
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victim of an assault/battery.

“Those injuries cannot be severed and allocated to different

causes, whether those ‘causes’ are separate legal theories or ‘claims’ relating to the same act or
are actually separate acts that combined to cause the injuries.” Admiral Ins. Co. v.
Price-Williams, 2013 WL 2149491, *10 (Ala. May 17, 2013).

As such, Robinson’s negligence

claim is inextricably tied with the fact of his assault/battery and the injuries which resulted.
Thus, the Hudson policy excludes coverage based on Crown Theater’s negligent omissions
which resulted in Robinson’s assault).

See e.g., United Nat. Ins. Co., 945 F.2d at 212-215;

Those Certain Underwriters at Lloyd’s London Who Subscribe to Policy No. TCN 002547 v.
Karma Korner, LLC, 2011 WL 1150466, *4 (M.D. Fla. Mar. 28, 2011) (holding that the
assault/battery exclusion applied to claims for negligence resulting in a shooting death).

In

sum, “liability-policy clauses that exclude losses arising from an assault and battery are effective
to bar payments for any such loss, even when the only improper conduct of the insured is a
purely negligent act or omission that simply made possible or facilitated the subsequent
intentional assault or battery[.]”

Price-Williams, 2013 WL 2149491 at *9-10 (referencing and

discussing the holdings of Auto–Owners Ins. Co. v. American Central Ins. Co., 739 So.2d 1078
(Ala. 1999), Horace Mann Ins. Co. v. D.A.C., 710 So.2d 1274 (Ala. Civ. App. 1998), and
Gregory v. Western World Ins. Co., Inc., 481 So.2d 878 (Ala. 1985)).
Further, Robinson’s argument -- that to not provide him with insurance coverage would
violate the law -- also fails.

Specifically, citing Section 20-X-5-.14(1) of the Alabama

Administrative Code, Robinson contends that it would violate law and public policy for the Court
to conclude that even though there has already been a judicial determination that Hudson’s
insured (Crown Theater) violated the Alabama Dram Shop Act, Hudson does not have to pay
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that judgment due to the assault/battery exclusion in its liquor liability policy.

(Doc. 43 at 13).

Whether Crown Theater violated the law by not having full liquor liability coverage for all
kinds/types of injuries is not the issue in this case.

Robinson has not cited any authority that

obligates Hudson to provide full coverage for dram shop claims.
applies to “[a]ll retail licensees of the ABC Board[.]”

Rather, that legal obligation

Ala. Adm. Code § 20-X-5-.14(1).

As

such, as the retail licensee of the ABC Board in this case, it is Crown Theater’s obligation to
obtain the necessary insurance required by law.
Based on the foregoing, the assault/battery exclusion in the Hudson liquor liability policy
issued to Crown Theater bars Robinson’s claim.

As such, Hudson’s motion for summary

judgment is GRANTED.
III.

Conclusion
Accordingly, it is ORDERED that Colony’s Motion for Summary Judgment (Docs.

38-39) is GRANTED; and Hudson’s Motion for Summary Judgment (Docs. 30-31), is
GRANTED.
A Final Judgment consistent with the terms of this Order shall be entered by separate
document as required by Rule 58 of the Federal Rules of Civil Procedure.

DONE and ORDERED this the 22nd day of October 2013.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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