ABSTRACT: In a premises liability case involving allegations of negligence and assault and battery, an insurance company whose policy has an assault and battery exception need not defend an insured, so long as the assault and battery is within a narrow scope of foreseeable harms arising from the negligence.

Insurance policies often contain exclusionary clauses that limit the scope of coverage arising from certain types of incidents. In some cases, the “concurrent-proximate-cause” rule applies, which states that “an insurance policy will be construed to provide coverage where an injury was proximately caused by two events—even if one of these events was subject to an exclusion clause—if the differing allegations of causation are independent and distinct.” Taylor v. Bar Plan Mut. Ins. Co., 457 S.W.3d 340, 347 (Mo. banc 2015). However, Missouri courts have favored a narrow application of this rule, holding that a covered cause must be “wholly separate” from the excluded cause for the rule to apply, even going so far as to note an example where negligent hiring of a maniac who commits arson may not be foreseeable, but negligent hiring of a pyromaniac would be. See Great Lakes Ins. SE v. Andrews, 33 F.4th 1005, 1008 (8th Cir. 2022).

In Scaglione v. Acceptance Indem. Ins. Co.,the Eighth Circuit considered whether an insurance company’s decision to not defend its insured against a claim of negligence arising out of injuries sustained in a shooting fell within this rule.On June 16, 2019, Sominkcole Conner was a patron at Voce Bar in downtown St. Louis, which was owned by Steven Scaglione. A dispute broke out between two other patrons, and Conner, an innocent bystander, was struck by a stray bullet. Scaglione’s insurance carrier, Acceptance Indemnity Company, refused to provide him with a defense. Accordingly, Conner and Scaglione agreed to arbitration, and Conner obtained a $2.5 million arbitration award, which was later confirmed by the Circuit Court of the City of St. Louis.

Conner filed an equitable-garnishment action against Acceptance. Scaglione filed a cross claim, alleging Acceptance had, in bad faith, refused to settle Conner’s claim, failed to defend or indemnify him, and breached its fiduciary duty. Acceptance filed motions to dismiss both Conner’s and Scaglione’s claims based on the assault-and-battery exclusion in the contract, which excluded, “[a]ny claims arising out of Assault and/or Battery.” The district court granted the motions, finding the assault-and-battery exclusion in Scaglione’s policy barred coverage. Scaglione and Conner appealed to the Eighth Circuit.

On appeal, Scaglione and Conner argued that: (1) the assault-and-battery exclusion only applied to assault or battery committed by the insured or the insured’s employees, not other patrons; (2) the exclusion only applied to claims of the intended victim of the assault and battery, not innocent bystanders; and (3) the concurrent-proximate cause rule applied because Connor’s injury arose from Scaglione’s negligence, which did not depend on the assault and battery.

The Eighth Circuit affirmed the decision below, finding the policy exclusion for “[a]ny claims arising out of Assault and/or Battery” was plain and unambiguous. The exclusion contained no words suggesting a limitation regarding the perpetrator of the assault or battery, and likewise contained no limiting language suggesting that injuries to innocent bystanders did not fall within the exclusion.

The Eighth Circuit also rejected the appellants’ argument under the concurrent-proximate-cause rule, finding that Scaglione’s negligence was not “independent and distinct from the excluded assault and battery.” The Court focused on whether Conner’s injury was within the scope of foreseeable harms from Scaglione’s negligence. Here, because the underlying petition alleged that Scaglione was aware that bar patrons were often armed with dangerous weapons, and that Scaglione failed to provide adequate security measures, Conner’s assault and battery was within the risk of foreseeable harms flowing from Scaglione’s negligence. Because the injury was foreseeable, the concurrent-proximate-cause rule did not apply, and, therefore, the exclusion barred coverage.

Key Takeaways

The court’s opinion illustrates several key points for consideration by insurance companies and legal practitioners alike:

  • Assault and battery exclusions in insurance contracts are valid regardless of whether the intended target of the assault and battery is the injured person, assuming policy language similar to the exclusion before the Eighth Circuit is used.
  • Insurance companies and their counsel must be sure to assert, and prove, an assault and battery occurred in any responsive pleadings to the court.
  • Insurance companies must ensure all exclusions in a policy remove any ambiguity in order to be enforceable in Missouri.
  • For the concurrent-proximate cause-doctrine to avoid the application of an exclusion, the non-excluded cause must be truly independent and distinct, with a focus on foreseeability.
* Andrew Snively, Law Clerk, assisted in the research and drafting of this post. Snively is a 3L student at Pepperdine Caruso School of Law.