White v. National Specialty Insurance Company
Filing
32
MEMORANDUM & ORDER: Defendant's 16 motion for summary judgment is granted. Forwarded for judgment. Ordered by Judge Raymond J. Dearie on 8/6/2014. (Chee, Alvin)
UNITED STATES DISTRJCT COURT
EASTERN DISTRlCT OF NEW YORK
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LORENZO WHITE,
MEMORANDUM & ORDER
Plaintiff,
13 CV 2319 (RJD) (MDG)
- against NATIONAL SPECIALTY INSURANCE
COMPANY,
Defendant.
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DEARIE, District Judge
On March 18, 2007, at the Pier 2110 nightclub in Harlem, plaintiff Lorenzo White was
knocked unconscious by an unidentified assailant who hit him in the head with a bottle of
champagne. White secured a $300,000 default judgment in state court against Pier 2110. At a
brief inquest, the state court found the nightclub negligent for not controlling its premises. In
this insurance dispute, he seeks to compel payment from Pier 211 O's insurer, defendant National
Specialty Insurance Company ("NSIC"). NSIC moves for summary judgment on the basis that
the insurance policies at issue specifically e:x:cluded injuries stemming from assault, battery, or
similar acts of violence. For the reasons set forth below, the motion for summary judgment is
granted.
NSIC issued two insurance policies to Pier 2110, both of which contain assault and
battery e:x:clusions that preclude coverage for injuries or damages "arising out of any assault,
battery, fight, altercation, misconduct or similar incident or act ofviolence." 1 At his deposition,
White said that he "know[s] for a fact" that the champagne bottle that struck him in the head was
The contents of the assault and battery e:x:clusions are not in dispute, and though White
argues otherwise, the copies of the e:x:clusions signed by Pier 2110 are legible.
in the hand of an unknown perpetrator (as opposed to thrown across the room). He also
acknowledged that "getting hit with a bottle is violent." His state court complaint alleges that he
was "caused to be negligently, intentionally, wrongfully, willfully, maliciously, and with gross
negligence, physically detained, assaulted, beaten, battered and falsely arrested by" Pier 2110.
At the state court inquest, his attorney described the incident as a "violent and unprovoked
attack." And the surrounding circumstances reinforce the point: the incident triggered a brawl,
six other patrons were hospitalized, and shots were fired outside the nightclub. Despite White's
protestations to the contrary, the broad and unambiguous language of the assault and battery
exclusions covers the incident at Pier 2110. 2
White argues that his claim is not precluded by the assault and battery exclusions because.
his state court judgment is based on negligence rather than an intentional tort. The assault and
battery exclusions, however, specifically provide that "no coverage is provided under this policy
if the underlying facts constitute an assault and/or battery irrespective of whether the claim
alleges negligent hiring, training, supervision and/or retention against the insured, or for any
other negligent actions of the insured." Because White's negligence claim against Pier 2110
would not exist "but for" the violent attack, it is not covered. The Court of Appeals has
repeatedly interpreted similar assault and battery exclusions in this manner. See Mount Vernon
Fire Ins. Co. v. Creative Hous. Ltd., 88 N.Y.2d 347, 352-53 (1996); U.S. Underwriters Ins. Co.
v. Val-Blue Coro., 85 N.Y.2d 821, 823 (1995).
2
Because White's injuries stemmed from an intentional violent act, the cases that he cites
are not applicable here. See, e.g., 20-35 86th St. Realty v. Tower Ins. Co., 106 A.D.3d 478, 47980 (1st Dep't 2013) (question of fact existed as to arsonist's knowledge that the building he
burned was occupied, and thus whether he intended to harm the occupants); Anastasis v. Am.
Safety Indem. Co., 12 A.D.3d 628, 630 (2d Dep't 2004) (bouncer negligently injured plaintiff);
Essex Ins. Co. v. T-Birds Nightclub & Rest., Inc., 229 A.D.2d 919, 920 (4th Dep't 1996) (same).
2
White also contends that NSIC is estopped from disclaiming coverage by New York
Insurance Law § 3420(d)(2) because it-acting through its managing general agent and thirdparty administrator RCA Insurance Group ("RCA")-failed to provide Pier 2110 with "written
notice as soon as [was] reasonably possible" of its denial ofcoverage. 3 This argument is
premised on two factual inferences that White contends should be drawn in his favor. Neither
inference is availing.
First, White argues that there is a disputed question of fact as to the date upon which
RCA (and thus NSIC) was alerted to his claim. According to NSIC, it learned of the potential
claim on October 19, 2007, when Pier 21 lO's insurance broker faxed it a letter from White's
lawyer. This date is corroborated by documentary evidence of the October 19 fax. White, on the
other hand, argues that RCA 's failure to invoke "late notice" from Pier 2110 as a reason for
disclaiming coverage suggests that it was notified of the potential claim well prior to the October
19 fax. This farfetched theory-which would require the factfinder to (1) make a series of
unsupported assumptions about Pier 21 lO's actions and RCA's policies and practices and (2)
disregard the sworn affidavits and deposition testimony of RCA employees----
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