Essex Insurance Company v. Wake Up Too

Filing 36

MEMORANDUM DECISION: Essex's Motion for Summary Judgment 26 is granted. The assault and battery exclusion contained in the Essex Insurance Policy bars coverage for all of the negligence claims in Mr. Rigby's Second Amended Complaint, fil ed in the underlying action. This action is therefore dismissed with prejudice and the case is now closed. NOTE: The CONTENT of this Memorandum Decision as originally entered on 2/12/09, entry 35 remains unchanged, however the first line on page 16 was corrected so the entire text could be viewed. Signed by Judge Dale A. Kimball on 2/12/09. (ce)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION

ESSEX INSURANCE CO., Plaintiff, v. WAKE UP TOO, INC. dba LIQUID JOE'S, and WESLEY RIGBY, Defendants. MEMORANDUM DECISION AND ORDER

Case No. 2:07CV312 DAK

T h is matter is before the court on Essex Insurance Company's ("Essex") Motion f o r Summary Judgment. A hearing on the motion was held on December 3, 2008. At th e hearing, Essex was represented by Gary L. Johnson. Defendants Wake Up Too, Inc. d b a Liquid Joe's ("Liquid Joe's") and Wesley Rigby ("Mr. Rigby") (collectively referred to as "Defendants") were represented by Charles A. Gruber. Before the hearing, the c o u rt carefully considered the memoranda and other materials submitted by the parties. Since taking the motion under advisement, the court has further considered the law and f a cts relating to the motion. Now being fully advised, the court renders the following M em o ran d u m Decision and Order. I. INTRODUCTION T h is is a declaratory judgment action in which Essex seeks a determination

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c o n c ern in g its obligations and duties under a commercial general liability insurance c o n tra c t issued to Liquid Joe's. Mr. Rigby claims that he suffered significant bodily in ju rie s as a result of an encounter with certain security guards at Liquid Joe's in the early m o rn in g hours of February 29, 2004. Mr. Rigby filed a lawsuit against Liquid Joe's in the Third Judicial District Court, State of Utah (the "Underlying Lawsuit"). Liquid Joe's te n d e re d the defense of the Underlying Lawsuit to Essex. Essex evaluated the potential fo r coverage, issued a reservation of rights letter, commenced defense of Liquid Joe's u n d e r the reservation of rights, and filed this declaratory judgment action. As described b e lo w , Essex has demonstrated that summary judgment should be granted in its favor b a s e d on the assault and battery exclusion in the policy. I I . BACKGROUND FACTS 1 A. The Events of February 28, 2004 A t approximately 10:00 p.m. on the evening of February 28, 2004, Mr. Rigby went to the private club, Liquid Joe's. When he arrived at Liquid Joe's, he discovered that he h a d forgotten his wallet and traveled back to his home to retrieve the wallet. While at h o m e , he consumed one shot of some kind of liquor. After Mr. Rigby retrieved his

While the parties have different perceptions of what happened on the evening on F e b ru a ry 28, 2004, these discrepancies do not preclude the court, in this case, from m a k in g a determination as a matter of law regarding the applicability of the insurance p o l i c y. 2

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w a llet, he traveled back to Liquid Joe's and arrived at approximately 11:00 p.m. Shortly a f te r he entered Liquid Joe's, Mr. Rigby was asked by Liquid Joe's security to leave the p r e m is e s . A f te r Mr. Rigby was escorted out of Liquid Joe's, he went to the van of his friend, E ric Freed, which was located in the parking lot of Liquid Joe's. He waited outside L iq u id Joe's for approximately two to two-and-a-half hours before his friends came out. The first of his friends to exit Liquid Joe's was Mike Cummings, who, when he came out o f Liquid Joe's, was angry that Mr. Rigby had been kicked out. When Mr. Cummings exited Liquid Joe's, he yelled at the Liquid Joe's security guards. When he saw this, Mr. Rigby asked his friend, Mr. Freed, to take Mr. Cummings to the ca r to avoid an altercation between Mr. Cummings and the security guards. Mr. C u m m in g s' car was parked in the Harmon's grocery store parking lot. L iq u id Joe's security personnel recall the next series of events somewhat d if f e re n tly than Mr. Rigby. Ryan Smith, an employee of Liquid Joe's, testified at his d e p o sitio n : Q A. . . . . Just give us a narrative of what happened next. They started to walk in an easterly fashion. As we were f o llo w in g them, they came back in kind of a confrontational manner, still a rg u in g . And it was just kind of an escort. No confrontation or no contact w ith any of them had taken place at that time. We got them to the east ­ M ik e [Cummings] and April [Rigby] were ahead of Wes [Rigby]. Wes kept tu rn in g around arguing and then he would walk a little bit further, turn 3

a ro u n d , argue, walk a bit farther. As soon as we got to the edge of that p ro p e rty line is when we said, "Have a nice night." At that particular time, M r. Rigby turned around and came at me with a gesture with closed fists in a manner that I felt was aggressive. *** Q. And as best you recall, step-by-step what happened after he tu rn e d and had his clenched fist, as you recall? As he turned with his fists clenched, I perceived that as a threat and figured h e was going to either strike me or take me down to the ground, so I didn't w a n t that to happen. So that's when I, with one closed fist with the right h a n d , hit Mr. Rigby in the face as to alleviate him coming after me to hit m e. Do you remember where you hit him in the face? Directly, I believe, in the nose. And what happened when you hit Wes in the nose with your fist? Wes and I started to kind of become entangled. He grabbed onto my shirt a n d I had a hold of his shirt. It seemed like he was still trying to get at me. As that happened, Jeff Vincent came in and tried to pull Wes from me. And I think we both kind of slipped down to our knees. Now, do you recall how many times you hit Wes? I think it was two to three times with a closed fist on the right side of the f a ce .

A.

Q. A. Q. A.

Q. A.

M r. Rigby, however, recalls that he, Mr. Cummings, and Mr. Rigby's sister, April, were w a lk in g away from Liquid Joe's with their backs to the security guards. According to M r. Rigby, his sister asked the Liquid Joe's security guards who were following them to le a v e them alone. Then, one of Liquid Joe's security guards charged in her direction.

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W h e n the Liquid Joe's security guard charged at Mr. Rigby and his sister, they were right o n the line between Liquid Joe's and the Harmon's grocery parking lot. Mr. Rigby p u lled his sister behind him and turned to look back at the security guard. According to M r. Rigby, he was grabbed by two Liquid Joe's security guards, pushed to the ground, a n d punched and kicked. Mr. Rigby testified: Q. A. So you had two guards push you down. You are not sure who they were? No, I never got turned around to look at their faces. I never saw their faces u n til I was like being pushed to the ground, just thrown to the ground. Q. A. Q. A. Q. A. Okay. What happened next? When I went down, they just started punching and kicking me. You hadn't thrown a punch? No, I had not raised my hand. You hadn't grabbed anyone? No, on the way down, I went and I was ­ there's a curb ­ if you ever go to L iq u id Joe's, there's a curb where it goes from there to Harmon's. They p u sh ed me and I tripped ­ they were pushing me down. I fell down and I'm a lm o s t going to hit my head and I grabbed ­ I reached up to grab something s o I wouldn't smash my head into the pavement and they just began kicking a n d punching me, I believe it was the guy. ***

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Q. A. Q. A.

Had you been punched at that point? One of the guys got me, put me in a headlock almost immediately. Before you went down? Like immediately when I'm down. One came around, got me in a headlock w h ile two were on the front of me. And at that time I was being punched in th e face. I had been punched right here and my lip was bleeding and my n o s e was bleeding (indicating). So I got punched at least three times in the f a ce .

Q. A.

Who was punching you in the face? One of the two that pushed me down. Before I even hit the ground I was a lre a d y getting punches. And then I turned in kind of a defending mode to try to not get hit in the face and I got put in a headlock and one of ­ I b e lie v e it was Ryan, my sister was right there, she saw everything, and she w a s sober and she was just ­ she told me it was Ryan ­ they all had name b a d g e s on ­ he was the one that gave me head trauma because he was p u n c h in g me. I was in a headlock and he was punching me with full force, lif tin g his fist up as high as he could and coming down hitting my head so h a rd that my sister said it sounded like a brick wall was being ­ was being punched.

Q.

Did he hit you in the nose?

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A.

In the same spot over and over and over.

W h e n Mr. Rigby was pushed down, it was on the Harmon's side of the property lin e. Mr. Rigby recalls that while he was being punched and kicked by the Liquid Joe's s e c u rity guards, he was going in and out of consciousness. When he regained c o n sc io u s n e ss while he was being held by the Liquid Joe's security guards, he saw a light fro m a police car. After he saw the police lights, he remembered the Liquid Joe's s e c u rity guards letting him go and that he dropped to the ground. He was bleeding from h is nose and his mouth. The Salt Lake City Police Department investigated the fight b e tw e e n Mr. Rigby and the security guards at Liquid Joe's, but no charges were filed by th e Salt Lake City Police Department against any Liquid Joe's employees because of the f ig h t. With respect to the conditions of the Liquid Joe's parking lot and the conditions of th e area where the altercation took place between Mr. Rigby and the Liquid Joe's security p e rso n n e l, Ryan Smith, testified as follows: Q. In some of the statements I see some descriptions of six inches of snow. I c a n 't remember whose statement it was. What do you recall the amount of s n o w that was out there in the area where the altercation occurred? A. That was their parking lot, the one shared with Harmon's and Einstein B ro th e rs and I believe there's a Blockbuster Video there as well. The night w a s clear when we started working. During the night there was a heavy,

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h e a v y snowstorm. Q. Did anybody go out into the parking lot of Liquid Joe's and shovel the snow th a t night, that you recall? A. One of our staff members had actually shoveled the sidewalks that lead to th e front door. I'm not sure who it is that does it, but there was a small p ic k u p truck with a plow that had come through and had removed some of th e snow in the area. Q. A. Do you remember what time of night that was? No. We had shoveled periodically throughout the night and gone out and s a lte d the sidewalk. That was our staff that had done that. I can't recollect th e time of the plow. *** Q. And when you and [Mr. Rigby] went down to your knees, do you recall s lip p in g when you went down to your knees? A. No, I think just the force of that, he had a hold of my shirt and then Jeff c o m i n g over to try to pull him from us, I think it was just the weight m o m e n tu m rather than slipping. Q. Do you recall ­ I can't remember which one, but one of the statements talk a b o u t that they didn't think [Mr. Rigby] had been hurt in the fall because th e re was six inches of snow that would have broken his fall or words to

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th a t effect. Do you recall that much snow being on the ground? A. There was quite a bit. It was padded. I remember being on my knees and g o in g down with force, but not coming up ­ coming up unscathed. I didn't h a v e any pain in my knee. There was no damage to the outer garments of m y clothing. B. The Underlying Lawsuit In November of 2004, Mr. Rigby filed the Underlying Lawsuit against Liquid J o e 's . In October of 2006, Mr. Rigby filed his Second Amended Complaint ("SAC"). The Second Amended Complaint alleges that Mr. Rigby was at Liquid Joe's with his s is te r and some friends and later in the evening, Mr. Rigby was dancing and "was n e g lig e n tly physically bumped and hit by a patron on the dance floor. . ." Security p e rs o n n e l, apparently mistakenly believing that Mr. Rigby had caused the problem, asked h im to leave which he did peacefully. Mr. Rigby remained outside of Liquid Joe's while his friends remained inside " d r in k in g alcohol supplied by the Defendants." As the establishment began to close d o w n , one of Mr. Rigby's friends, who was intoxicated, became involved in a verbal a rg u m e n t with one of the Liquid Joe's security personnel. Mr. Rigby's version of events in the SAC are that members of Mr. Rigby's party were trying to escort their friend off the premises when the Liquid Joe's "security persons continued in a negligent manner to a tte m p t to restrain and remove the intoxicated persons." A c c o rd in g to Mr. Rigby's SAC, the Liquid Joe's security employees, because of

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th e ir lack of training in restraining and removing intoxicated persons, negligently a tte m p te d to restrain or remove all of plaintiff's party, including plaintiff. As a result of D e f e n d a n t's negligence, Mr. Rigby was knocked semi-conscious and physically injured. Mr. Rigby has settled his dram-shop type claims with another insurance carrier, a n d the parties agree that only the First and Fifth Cause of Action are at issue in the in s ta n t lawsuit. These two claims pertain to premises liability (First Cause of Action) and n e g lig e n t infliction of emotional distress (Fifth Cause of Action). Specifically, the First Claim for Relief in the SAC is titled "Negligence and P r e m is e s Liability ­ Against All Defendants." This claim pertains to Defendants serving p e o p l e alcohol who were already intoxicated (which is no longer relevant), and it also a lleg e s that: ¶ 43. O n or about February 29, 2004, the Defendants were or reasonably should h a v e been aware that they had failed to employ, train and supervise their s e c u rity employees to provide safe and adequate security on the premises in c lu d in g , removing and/or restraining intoxicated and boisterous persons o r any person in a safe manner thereby creating a dangerous condition. ¶ 44. O n or about February 29, 2004, the Defendants were or reasonably should h a v e been aware that snow and ice were building up in the parking lot and th a t the snow and ice had not been removed during the evening thereby c re a tin g a dangerous condition for the patrons of the Defendants including th e Plaintiff.

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¶ 45. The Defendants and each of them breached their duties that they o w e d to Mr. Rigby by, including, but not limited to, negligently maintaining th e premises so as to create a dangerous and unsafe condition, failing to rem ed y the dangerous condition in a prompt manner, failing to warn Mr. R ig b y and others concerning the unsafe and dangerous conditions; failing to a d e q u a t e ly train its employees on how to safely maintain the premises; f a ilin g to provide security and crowd control to the patrons on the premises; a n d failing to properly supervise its security employees to ensure that those e m p l o ye e s maintain the premises in a safe condition including restraining a n d /o r removing persons from the premises in a safe manner that did not e n d a n g er other patrons on the premises and not harming patrons on the p r e m is e s . T h e Fifth Claim for Relief is for negligent infliction of emotional distress. T h is claim relates to the alleged poor training and negligent supervision of the security g u ard s and that this alleged poor training and negligent supervision led the Liquid Joe's s e c u rity guards to a negligent choice of the use of certain security techniques that caused R ig b y physical injury. C. The Essex Contract of Insurance E s s e x issued a commercial general liability insurance contract, Policy Number 3 C M 0 5 3 4 , to Liquid Joe's with a policy period from 12/09/2003 to 12/09/2004. The P o lic y is an occurrence-based policy with a $2 million general aggregate limit and a $1

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m illio n each occurrence limit which contract of insurance contains a standard ISO C o m m e rc ia l General Liability Coverage Form ("CG 00 01 01 96, hereinafter "CGL C o v e ra g e Form"). The Insuring Agreement in the Policy provides that Essex will pay th o s e sums that Liquid Joe's becomes legally obligated to pay as damages because of " b o d ily injury" or "property damage" to "which this insurance applies." Essex has "the rig h t and duty to defend the insured against any `suit' seeking those damages." T h e insurance applies to "bodily injury" only if the "bodily injury" is c a u se d by an "occurrence" that takes place in the coverage territory and occurs during the p o lic y period. Id. "Occurrence" is defined as an "accident, including continuous or re p e ate d exposure to substantially the same general harmful conditions." The CGL Coverage Form contains a number of exclusions. Exclusion "a" is e n title d : "Expected or Intended Injury." This exclusion states that the insurance does not a p p ly to "bodily injury" or "property damage" that is "expected or intended from the s ta n d p o in t of the insured. This exclusion does not apply to `bodily injury' resulting from th e use of reasonable force to protect persons or property." Importantly, this second s e n te n c e of Exclusion "a" in the CGL Coverage Form has been deleted by two different e n d o rs e m e n ts to the Policy.2 T h e Policy also contains Endorsement M/E/024(N/00), an "assault and/or battery" e x c l u s io n . This endorsement provides as follows:

2

Essex does not rely on the "Expected or Intended Injury" exclusion in this

m o tio n . 12

T h e coverage under this policy does not apply to any claim, s u it, cost or expense arising out of assault and/or battery, or o u t of any act or omission in connection with the prevention o r suppression of such acts, whether caused by or at the in s tig a t io n or direction of any Insured, Insured's employees, p a tro n s or any other person. Nor does this insurance apply w ith respect to any charges of allegations of negligent hiring, tra in in g , placement or supervision. Furthermore, assault a n d /o r battery includes "bodily injury" resulting from the use o f reasonable force to protect persons or property. The s e n te n c e "this exclusion does not apply to `bodily injury' re su ltin g from the use of reasonable force to protect persons o r property" is deleted from the Commercial General Liability C o v e ra g e Form Section I, Item No. 2, Exclusions a. I I I . DISCUSSION A. W a s There an "Occurrence" Under the Policy? E s s e x contends that the insurance policy doesn't apply because there was no " o c cu rre n c e" ­ defined as an "accident"­ at issue here. Essex argues that in N.M., ex

r e l. Caleb v. Daniel E., 175 P.3d 566 (Utah 2008), the Utah Supreme court clarified how to analyze an "accidental" event. In Caleb, the Utah Court determined that there are two in d e p e n d en t methods by which bodily injury or property damage may be deemed " n o n a c c id e n tal" in Utah, only one of which is relevant in this case. Essex claims that, u n d er Caleb, the harm or damage is not accidental if it is the natural and probable c o n se q u e n ce of the insured's act or should have been expected by the insured. It further c o n ten d s that this court may decide as a matter of law what the average individual would e x p e c t to happen under the circumstances. Id. at 569-70. In the instant case, Essex argues that the court should look to whether Mr. Rigby's in ju rie s­ ra th e r than the actions of the security guards­were accidental. Then, according 13

to Essex, the court should evaluate whether the injures suffered by Mr. Rigby were d is p ro p o rtio n a te to the injury intended or what should have been reasonably expected, f ro m the standpoint of the security guards. Only if the injury is completely d isp ro p o rtio n a te to the injury reasonably expected should the court consider the event to b e accidental in nature. Essex then argues that regardless of whether the court credits the story of Mr. R ig b y and his friends­or the story told by Ryan Smith, the Liquid Joe's security g u a rd ­ th e injuries were proportionate to the injury that the security guards should have re a so n a b ly expected. Even Ryan Smith's account establishes that he struck Mr. Rigby in th e fact at least three times. According to Essex, no reasonable person could find that the lo n g -te rm injuries (closed head trauma) resulting from such blows ­ particularly when the in d iv id u a l does not have their hands up to impede the blow ­ are disproportionate to the in j u rie s that were reasonably foreseeable by the security guard. Thus, Essex contends, D e f en d a n ts have not established that the injuries resulted from an "accident," and the p o lic y does not apply. T h e court disagrees with Essex on this point, and finds that the court cannot, as a m a tter of law, conclude that the injuries were proportionate to the injury that the security g u a rd s should have reasonably intended or expected. In other words, the court cannot, on a motion for summary judgment, conclude that there was no "occurrence" covered by the p o lic y. Thus, the court must next determine whether any of the exclusions preclude c o v e ra g e .

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B.

Does the Assault and Battery Exclusion Bar Coverage? Essex next contends that if the court determined that Rigby's claims against Liquid

J o e 's are caused by "an occurrence," then there are exclusions in the policy that bar co v era g e for Rigby's claims. Essex argues that in analyzing the application of Essex's a ss a u lt and battery exclusion to the claims brought by Rigby, it is important to focus on f o u r factors: 1. The exclusion provides that coverage under the Essex policy does not apply to any claim or suit "arising out of" assault and/or battery, or any act or o m is s io n in connection with the prevention or suppression of such acts. 2. The exclusion bars coverage for assault and/or battery or the prevention or s u p p re ss io n of such acts, whether caused by or at the instigation or direction o f any of the Liquid Joe's employees, the patrons (that would be Rigby, his f rie n d s and family) or any other person. 3. The policy specifically bars coverage concerning any charges or allegations " o f negligent hiring, training, placement or supervision." 4. The exclusion applies to bodily injury that results from the use "of re a s o n a b le force to protect persons or property." U ta h courts have specifically provided a framework for interpreting the phrase " a ris in g out of" as used in liability insurance contracts. In Meadow Valley Contractors, In c . v. Transcontinental Ins. Co., 27 P.3d 594 (Utah Ct. App. 2001), the Utah Court of A p p e a ls analyzed the meaning of the phrase, "arising out of" under Utah law:

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T h e term `arising out of' is ordinarily understood to mean originating from, in c id e n t to, or in connection with the item in question."

". . . As used in a liability insurance policy, the words `arising out of' are v e ry broad, general and comprehensive. They are commonly understood to m e a n originating from, growing out of or flowing from, and require only th a t there be some causal relationship between injury and the risk for which c o v e ra g e is provided." 2 7 P.3d at 597 (quoting Viking Ins. Co. of Wis. v. Coleman, 927 P.2d 661, 663 (Utah Ct. A p p . 1996) (quoting National Farmers Union Prop. & Cas. Co. v. Western Cas. & Sur. Co., 577 P.2d 961, 963 (Utah 1978)). The Utah Court of Appeals went on to state that th e phrase "arising out of" is equated with origination, growth or flow from the event, and h a s much broader significance than "caused by." Id. T h e re f o re , if a claim against Liquid Joe's "arises out of" violent actions by Liquid Jo e 's employees, Liquid Joe's customers, or even bystanders, and whether the claim a rise s out of an affirmative assault or acts which are done in self-defense (as the Liquid J o e 's employees claim), then coverage for any such claim is barred. Mr. Rigby, through, argues that he did not use the term "assault and battery" in the C o m p lain t, he does not assert a claim for "assault and battery," and his claims are all n e g lig e n c e -b a s e d . Thus, he contends that this exclusion does not apply. Courts, however, have routinely applied and upheld the assault and battery e x c lu s io n , even when the words "assault" and/or "battery" were not used in the C o m p la in t and the plaintiff framed his claims in terms of negligence. See, e.g., Gilmore v . Beach House, Inc., 174 P.3d 439 (Kan. 2008) (under Kansas law, "[a]n assault and

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b a tte ry exclusion clause is intended to exclude all claims arising out of an assault and b a ttery," even negligence claims); Trainwreck West, Inc. v. Burlington Ins. Co., 235 S .W .3 d 33 (Mo. Ct. App. 2007) (assault and battery exclusion of nightclub's commercial g e n e ra l liability policy barred coverage for patron's personal injury lawsuit); Kamaki S k ia th o s ,In c . v. Essex Ins. Co., 396 F. Supp. 2d 624 (D. Md. 2005) (dismissing multiple la w s u its and concluding that the allegations described the use of physical force by b o u n c e rs against the plaintiffs, thus invoking the assault and battery exclusion, even th o u g h claims were couched as negligence claims); Capital Indemn., Inc. v. Brown, 581 S .E .2 d 339 (Ga. Ct. App. 2003) ("but for" the assault, the plaintiff would not have a cause o f action and thus his claims fall within the exclusion); Capitol Indemn. Corp. v. Blazer, 5 1 F. Supp. 2d 1080, 1086-88 (D. Nev. 1999) (none of plaintiffs' claims ­ including n eg lig en ce ­ could have arisen absent the commission of the tortious assault and battery a n d exclusion applied to bar coverage); Mt. Vernon Fire Ins. Co. v. Creative Housing, L td ., 93 F.3d 63, 66 (2 n d Cir. 1996) (because the plaintiff would be unable to maintain c la im s for negligence "but for" the assault upon her, under New York law, her claims w e re based on assault and battery and were therefore excluded from coverage under the in su ra n c e policy); United Nat. Ins. Co. v. Entertainment Group, Inc., 945 F.2d 210 (7th C ir. 1991) (coverage precluded for suit by customer sexually assaulted in theater even th o u g h complaint stated claims sounding in negligence for insured's alleged failures in su p erv isin g and providing security; claims "arose out of" assault and battery); S tin g lic h v. Tracks, D.C., Inc., 721 F. Supp. 1386 (D.D.C. 1989) (insurance policy did not

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a p p ly regardless of negligence allegations, the original cause of harm arose from an a lle g e d assault and battery). In this case, the testimony of Mr. Rigby, his sister, and his friends all describe a s e v e re pummeling of Mr. Rigby by Liquid Joe's security personnel. The testimony of the s e c u rity personnel is that they thought they were suppressing or preventing the occurrence o f an attack on them and, as Ryan Smith testified, he punched Mr. Rigby three times in th e face to keep such an attack from occurring. Regardless of why the altercation o c c u rre d or who was at fault, Mr. Rigby's claims­although styled as "negligence" c la im s ­ n e c es s a rily arise out of an assault or battery. Under either version of the facts at is s u e , Mr. RIgby would not have a cause of action but for the alleged assault and battery, a n d therefore, his claims are excluded by the Essex insurance policy. Defendants contend, however, that Essex is attempting to have this federal court ig n o re the Utah Supreme Court's decision in Benjamin v. Amica Mutual Insurance Co., 1 4 0 P.2d 1210 (Utah 2006). According to Defendants, the Utah Supreme Court ruled in B e n ja m in that "where there is a claim for negligence that is based on some intentional c o n d u c t that might otherwise be excluded, then the insurance carrier has a duty to defend a n d to indemnify the negligent infliction of emotional distress claim. The court finds, h o w e v e r, that Benjamin does not stand for the proposition that an insurer has a duty to d e f en d and indemnify a negligent infliction of emotional distress claim that arises from an e x c lu d e d assault and battery. To the extent Mr. Rigby claims that the conditions of the parking lot contributed to

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o r caused his injury, there is no testimony whatsoever of any injury from a "slip and fall" s u f f ere d by Mr. Rigby that does not arise out of the alleged assault and battery. Indeed, th e re is no evidence of any "slip and fall" injury whatsoever. Rather, there is merely an a lle g a tio n made in the Second Amended Complaint. No sworn testimony has been m a rs h a le d that could create a disputed fact on this point. There is nothing in the police re p o rt reflecting any statements by Mr. Rigby that he slipped and fell in the parking lot. None of his deposition testimony indicates that he slipped and fell because of snowy or ic y conditions in the parking lot or walkways of Liquid Joe's. No witness testified that M r. Rigby slipped and fell on the walkways at Liquid Joe's or in the parking lot of Liquid J o e 's as a result of any accumulation of ice or snow on the night of this incident. Moreover, the cumulative testimony of the eyewitnesses is that the incident itself took p lac e in the Harmon's parking lot, adjacent to Liquid Joe's. Liquid Joe's has no duty in a n y event to maintain the parking lot of Harmon's. T h u s , the court finds that the assault and battery exclusion in the Essex insurance p o lic y precludes coverage for the injuries suffered by Mr. Rigby on the night in question, r e g a rd l e ss of the characterization of Mr. Rigby's claims. Mr. Rigby's claims all arise f ro m the alleged assault and battery and would not exist "but for" the alleged assault and b a tte ry. Accordingly, Essex has no duty to defend or indemnify Liquid Joe's in the U n d e rlyin g Lawsuit. IV. CONCLUSION A cc o rd in g ly, IT IS HEREBY ORDERED that Essex's Motion for Summary

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Ju d g m e n t [Docket # 26] is GRANTED. The assault and battery exclusion contained in the Essex Insurance Policy bars coverage for all of the negligence claims in Mr. Rigby's S ec o n d Amended Complaint, filed in the Underlying Action. This action is therefore D IS M IS S E D with prejudice, and the case is now closed. DATED this 12 th day of February, 2009.

B Y THE COURT:

DALE A. KIMBALL U n ite d States District Judge

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