A business liability insurer will not need to provide coverage to a convenience store faced with claims of negligent supervision arising from a physical altercation between the store’s security guard and a customer.
According to records from the Wisconsin Supreme Court, the incident happened in 2009 at a convenience store when the customer visited the store to buy beer and that while he was inside the store, the security guard punched him in the face twice. Customer/ plaintiff left the store, called police to report an assault and was transported to the hospital where he received treatment for a broken jaw.
As our personal injury attorneys in Orlando can explain, actions for intentional tort can be difficult because many insurers will allege they do not cover intentional acts. However, there may be negligence claims that are applicable for which insurers are liable.
Plaintiff filed a personal injury lawsuit against the store owner, the security guard and the store’s insurer. He alleged the store had a duty to properly train and supervise employees, owing the highest degree of care for the safety of customers. The store’s liability insurer hired an attorney to represent him, but did so under “reservation of rights,” meaning that decision alone did not mean it would provide coverage for the end verdict. The insurer sought to bifurcate issues of coverage and liability and put the proceedings on the latter issue on hold until the issue of coverage could be decided, a motion the court granted. The store owner hired his own attorney to represent him on the issue of coverage.
The insurer argued there was no coverage for this incident because firstly, the security guard was not an employee and therefore not an insured, but even despite a factual dispute about the guard’s employment status, the incident involved an intentional assault and the policy excluded coverage for intentional acts. Finally, the insurer argued that claims of negligent supervision weren’t covered because the guard was not an employee.
The trial court agreed with the insurer, finding there was no coverage for an intentional act. The court ruled plaintiff attorneys attempting to obtain coverage for an intentional act will “try to shoehorn in a negligence claim,” to make an intentional act an “occurrence” under the policy, but this was strictly an intentional tort case. On the issue of negligent supervision, the court held that punching someone in the face is not an act of negligence.
The court of appeals reversed, and the insurer petitioned the state supreme court for review, which was granted. Insurer argued the plaintiff was attempting to “bootstrap” a claim of negligence into one that was in reality one of intentional tort, and therefore a claim of negligent training and supervision should be rejected. Plaintiff insisted his negligent supervision cause of action against the store owner was a separate act of negligence that was covered under the liability insurer’s policy.
The state insurance alliance submitted an amicus brief arguing commercial liability policies don’t typically cover intentional acts of assault and battery, and injured parties can’t obtain coverage by “creatively pleading a cause of action for negligent supervision” against an employer who is insured.
It was an issue of first impression for the court, which noted other jurisdictions weighed similar claims, with courts in New York and West Virginia holding no coverage exists for employers when employees commit intentional violations of criminal law, such as sexual assault or homicide.
The state supreme court reversed the appellate court, finding the policy is applicable only to bodily injury caused by an “occurrence” which is defined as an “accident.” Intentionally punching someone twice in the face is not an “accident” the court ruled. That would mean the negligent supervision claim would stand only if facts exist that would show the store owner’s own conduct accidentally caused the injury, but there were none to support that, the court ruled.
That does not mean plaintiff cannot still pursue his case against the store or the security guard and seek damages from their business or store assets. It does, however, mean there will be no insurance coverage to pay those damages.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.
Talley v. Mustafa, May 11, 2018, Wisconsin Supreme Court
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