Bradley B. Womack and Elizabeth Cavalier Womack, Individually and on behalf of Mark Womack and Erroll E. Strahan and Tricia Strahan Scott, Individually and on behalf of Erroll Scott v. Mar Jay Productions, LLC d/b/a Shooter's Bar and Grill and First Financial Insurance Company

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CA 0712

BRADLEY B. WOMACK AND ELIZABETH CAVALIER WOMACK,
INDIVIDUALLY AND ON BEHALF OF MARK WOMACK, AND
ERROLL E. STRAHAN AND TRICIA SCOTT STRAHAN,
INDIVIDUALLY AND ON BEHALF OF ERROLL SCOTT

VERSUS

G MAR JAY PRODUCTIONS, L.L. C. d/ b/ a SHOOTER' S BAR & GRILL
1 AND FIRST FINANCIAL INSURANCE COMPANY

1 A-4 Judgment Rendered: FEB 2 12020

On Appeal from the
Twenty -Second Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Trial Court No. 2014- 12146

The Honorable William H. Burris, Judge Presiding

Patrick H. Hufft Attorneys for Plaintiffs/Appellants,
New Orleans, Louisiana Bradley B. Womack and Elizabeth
Arthur J. Brewster Cavalier Womack, individually and
Metairie, Louisiana on behalf of Mark Womack and Erroll
E. Strahan and Tricia Scott Strahan,
individually and on behalf of
Erroll Scott

R. Edward Blanchard Attorneys for Defendant/ Appellee,
John Futrell First Financial Insurance Company
Travis L. Bourgeois
New Orleans, Louisiana

Sidney W. Degan, III

BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ.

PENZATO, J.

Appellants, Bradley B. Womack and Elizabeth Cavalier Womack,

individually and on behalf of Mark Womack, and Erroll E. Strahan and Tricia

Scott Strahan, individually and on behalf of Erroll Scott, appeal a trial court

judgment granting appellee' s, First Financial Insurance Company, summary

judgment and dismissing all claims against it.' For the reasons that follow, we

affirm.

FACTS AND PROCEDURAL HISTORY

On December 25, 2013, Erroll Scott, son of Errol E. Strahan and Tricia Scott

Strahan, and Mark Womack, son of Bradley and Elizabeth Womack, were

attending a concert at Mar Jay Productions, L.L.C. d/b/ a Shooter' s Bar & Grill

Mar Jay). During the concert, at least two fights occurred on the premises owned

by Mar Jay. At approximately, 1: 15 a. m. on December 26, 2013, a third fight

began in the bar, but eventually spilled outside. One of the participants in the fight

pulled out a . 40 caliber handgun and randomly fired shots into the crowd, striking

eight people, including Erroll Scott and Mark Womack, who both died from their

injuries. Appellants filed suit against Mar Jay, claiming it was liable for the

injuries to Erroll Scott and Mark Womack and for the wrongful death damages to

Appellants. They allege Mar Jay committed various acts of negligence, including

failing to provide adequate security measures, failing to call the police, allowing an

unreasonably dangerous condition to exist on the premises, and other acts of

negligence. Appellants also filed suit against First Financial Insurance Company

1 Appellants also list Jayme Lynn Womack as an appellant. However, we note that Jayme Lynn
Womack has never been named as a plaintiff and is not a party to these proceedings.
2

First Financial), alleging that it provided a policy of insurance to Mar Jay

covering the risks sued upon herein.2

First Financial issued commercial general liability policy number

612F000907 ( the Policy) in which Mar Jay is listed as the named insured. First

Financial filed a motion for summary judgment on October 24, 2014, claiming that

every claim asserted against it was precluded from coverage by the assault and

battery exclusion contained in the policy. The policy was attached to the motion

for summary judgment. Due to ongoing discovery, the hearing on the motion for

summary judgment was continued until April 23, 2015. On that date, the hearing

on the motion for summary judgment was continued without date. On October 15,

2018, noting that La. C. C.P. art. 966 had been amended, First Financial filed a

supplemental memorandum in support of its motion for summary judgment,

attaching an affidavit signed by Mitchell H. Jacobs, Appellants' petitions, and First

Financial' s answers.

Appellants opposed the motion for summary judgment, attaching excerpts of

the depositions of Jessica Saybe, an employee of Mar Jay, and Gerald P. Hellmers,

a security guard of Mar Jay and witness to the shooting, a surveillance video, an

affidavit of Nicholas Lea, a witness to the shooting, and one page of the Policy

containing the assault and battery exclusion. Appellants asserted that the facts of

the case did not fall within the assault and battery exclusion as claimed by First

Financial.

First Financial filed an objection to the surveillance video being admitted,

since it was not properly authenticated or enumerated in the categories of exhibits

that may be considered for summary judgment purposes under La. C. C. P. art

2 Appellants filed a First Amending and Supplemental Petition correcting the name of Tricia
Strahan Scott to Tricia Scott Strahan in the original petition and the caption. Appellants also

filed a Second Supplemental and Amending Petition, naming new defendants alleged to be the
owners and managers of Mar Jay and Jamieon Chatman, the gunman on the night of the incident.
3

966( A)(4). The trial court held a hearing on December 19, 2018, and sustained the

objection to the surveillance video, thereby not considering it for summary

judgment purposes. The trial court further granted First Financial' s motion for

summary judgment, finding there was no duty to defend or indemnify, and

dismissed all Appellants' claims against First Financial. A judgment was signed in

accordance therewith on January 9, 2019. It is from this judgment that Appellants

appeal.

ASSIGNMENT OF ERROR

Appellants' only assignment of error is that the trial court erred in granting

First Financial' s motion for summary judgment since there are issues of fact as to

the liability of First Financial notwithstanding the purported policy exclusion.

SUMMARY JUDGMENT

We first recognize that First Financial filed its motion for summary

judgment on October 24, 2014. Louisiana Code of Civil Procedure article 966 was

amended by 2015 La. Acts, No. 422, § 1, effective January 1, 2016. Section 2

provides, "
The provisions of this Act shall not apply to any motion for summary

judgment pending adjudication or appeal on the effective date of this Act." As the

motion for summary judgment at issue in this matter was pending as of October 24,

2014, we apply the prior version of Article 966.

Louisiana Code of Civil Procedure article 966( B)( 2) ( prior to amendment by

2015 La. Acts, No. 422) provides that summary judgment " shall be rendered

forthwith" when " there is no genuine issue as to material facts, and that mover is

entitled to judgment as a matter of law."' After adequate discovery, a motion for

summary judgment is properly granted if the pleadings, depositions, answers to

interrogatories, and admissions, together with affidavits, if any, admitted for

3 Now La. C. C. P. art. 966( A)(3).

4

purposes of the motion, show that there is no genuine issue as to material fact and

that the mover is entitled to judgment as a matter of law. La. C. C. P. arts.

966( B)( 2) & ( C)( 1) ( prior to amendment by 2015 La. Acts, No. 422). 4 The

summary judgment procedure is expressly favored in the law and is designed to

secure the just, speedy, and inexpensive determination of non-domestic civil

actions. See La. C. C. P. art. 966( A)(2).

The mover bears the burden of proving that he is entitled to summary

judgment. However, if the mover will not bear the burden of proof at trial on the

subject matter of the motion, he need only demonstrate the absence of factual

support for one or more essential elements of his opponent' s claim, action, or

defense. La. C. C. P. art. 966( C)( 2) ( prior to amendment by 2015 La. Acts, No.

422). 5 If the moving party points out that there is an absence of factual support for

one or more elements essential to the adverse party' s claim, action, or defense,

then the nonmoving party must produce factual support sufficient to satisfy his

evidentiary burden at trial. La. C. C. P. art. 966( C)( 2) ( prior to amendment by 2015

La. Acts, No. 422). If the nonmoving party fails to make this requisite showing,

there is no genuine issue of material fact, and summary judgment should be

granted. See La. C. C. P. art. 966( C)( 2) ( prior to amendment by 2015 La. Acts, No.

422). If, however, the mover fails in his burden to show an absence of factual

support for one or more of the elements of the adverse party' s claim, the burden

never shifts to the adverse party, and the mover is not entitled to summary

judgment. LeBlanc v. Bouchereau Oil Co., Inc., 2008- 2064 ( La. App. 1 st Cir.

5/ 8/ 09), 15 So. 3d 152, 155, writ denied, 2009- 1624 ( La. 10/ 16/ 09), 19 So. 3d 481.

4 Now La. C. C. P. art. 966( A)( 3).

5 Now La. C. C. P. art. 966( D)( 1).

5

In ruling on a motion for summary judgment, the trial court' s role is not to

evaluate the weight of the evidence or to determine the truth of the matter, but

instead to determine whether there is a genuine issue of triable fact. Hines v.

Garrett, 2004- 0806 ( La. 6/ 25/ 04), 876 So. 2d 764, 765 ( per curiam). Factual

inferences reasonably drawn from the evidence must be construed in favor of the

party opposing the motion, and all doubt must be resolved in the opponent' s favor.

Willis v. Medders, 2000- 2507 ( La. 12/ 8/ 00), 775 So. 2d 1049, 1050 ( per curiam).

In reviewing the trial court' s decision on a motion for summary judgment,

this court applies a de novo standard of review using the same criteria applied by

the trial courts to determine whether summary judgment is appropriate. Jackson v.

Wise, 2017- 1062 ( La. App. 1st Cir. 4/ 13/ 18), 249 So. 3d 845, 850, writ denied,

2018- 0785 ( La. 9/ 21/ 18), 252 So. 3d 914.

LAW AND DISCUSSION

Interpretation of an insurance policy usually involves a legal question that

can be resolved properly in the framework of a motion for summary judgment. An

insurance policy is a contract between the parties and should be construed using

the general rules of interpretation of contracts set forth in the Civil Code.

Interpretation of a contract is the determination of the common intent of the

parties. La. C. C. art. 2045. When the words of a contract are clear and explicit

and lead to no absurd consequences, no further interpretation may be made in

search of the parties' intent. La. C. C. art. 2046. Prejean v. McMillan, 2018- 0919

La. App. 1st Cir. 2/ 28/ 19), 274 So. 3d 575, 578.

When determining whether a policy affords coverage for an incident, the

insured bears the burden of proving the incident falls within the policy' s terms.

Miller v. Superior Shipyard and Fabrication, Inc., 2001- 2683 ( La. App. 1 st Cir.

11/ 8/ 02), 836 So. 2d 200, 203. However, an insurer has the burden of proving that

0

a loss falls within a policy exclusion. Additionally, in determining whether an

exclusion applies to preclude coverage, courts are guided by the well-recognized

rule that an exclusionary clause in an insurance policy must be strictly construed.

Nonetheless, an insurance policy, including its exclusions, should not be

interpreted in an unreasonable or strained manner so as to enlarge or to restrict its

provisions beyond what is reasonably contemplated by its terms or so as to achieve

an absurd conclusion. Fouquet v. Daiquiris & Creams of Mandeville, L.L.C.,

2010- 0233 ( La. App. 1st Cir. 9/ 13/ 10), 49 So. 3d 44, 47 ( citing Sensebe v. Canal

Indemnity Co., 2009- 1325 ( La. App. 1st Cir. 2/ 24/ 10), 35 So. 3d 1122, 1125- 26,

writ granted, 2010- 0703 ( La. 6/ 25/ 10), 38 So. 3d 358.

An insurance policy is an agreement between the parties and should be

construed according to general rules of contract interpretation. Edwards v.

Daugherty, 2003- 2103 ( La. 10/ 1/ 04), 883 So. 2d 932, 940. The judiciary' s role in

interpreting insurance contracts is to determine the common intent of the parties to

the contract. Edwards, 883 So. 2d at 940. Unless the words of the policy have

acquired a technical meaning, they are to be construed using their plain, ordinary,

and generally prevailing meaning. See La. C. C. art. 2047; Cadwallader v. Allstate

Ins. Co., 2002- 1637 ( La. 6/ 27/ 03), 848 So. 2d 577, 580. The agreement must be

enforced as written if the policy wording at issue is clear and expresses the intent

of the parties. Edwards, 883 So. 2d at 941. An insurance company may limit

coverage in any manner, as long as the limitations do not conflict with statutory

provisions or public policy. Edwards, 883 So. 2d at 947. The exclusionary

provisions of an insurance contract are strictly construed against the insurer, and

any ambiguity in the exclusion is construed in favor of the insured. Ledbetter v.

Concord General Corp., 95- 0809 ( La. 1/ 6/ 96), 665 So. 2d 1166, 1169. The rules

of construction, however, do not authorize a perversion of the words or the

7

exercise of inventive powers to create an ambiguity where none exists or the

making of a new contract when the terms express with sufficient clarity the parties'

intent. Edwards, 883 So. 2d at 941. Using these principles, we now address the

pertinent policy language.

The First Financial liability policy contains an exclusion, which provides:

D. This insurance does not apply to:

a.
Assault, Battery or other Physical Altercation

Bodily injury" or " property damage":

1) Expected or intended from the standpoint of
any insured.

2) Arising in whole or in part out of any " assault"
or " battery"
committed or attempted by any
person.

3) Arising in whole or in part out of any act or
omission in connection with avoiding,
preventing, suppressing or halting any actual or
threatened " assault" or " battery."

4) Arising in whole or in party out of any actual or
threatened verbal or physical confrontation or
altercation committed or act or omission in
connection with avoiding, preventing,
suppressing or halting any actual or threatened
verbal or physical confrontation or altercation.

G. The exclusions added in paragraphs D, E and F of this

endorsement apply to all acts or omissions, including any act or
omission in responding to or failing to respond or render aid,
medical or otherwise, to any victim of the " assault" or " battery"
or physical confrontation or altercation, and all theories of

liability ( direct or vicarious) asserted against any insured,
including but not limited to all theories of negligence, gross
negligence, recklessness or intentional tort and shall not be
subject to any severability or separation of insureds provision in
the policy.

H. The following are added to the Definitions Section of this
policy:

0

Assault" means any attempt or threat to inflict
injury upon the person of another, or any display
of forces such as would give a person reason to
fear or expect immediate bodily harm.

Battery" means physical contact with a person

without his or her consent that entails some injury
or offensive touching.

Appellants assert that there are material issues of fact as to: ( 1) whether the

assault and battery exclusion applied to the incident in this matter; ( 2) whether the

actions of the tortfeasor amounted to intentional conduct or gross negligence; ( 3)

whether the trial court' s interpretation of the assault and battery exclusion was

overly broad and/ or against public policy; and ( 4) whether the term " physical

contact"
as defined in the Policy encompasses the negligent discharge of a firearm

that unintentionally strikes random victims.' Appellants argue issues one, three,

and four together, and we will treat them accordingly.

Assault and Battery Exclusion, Physical Contact, and Public Policy

Appellants argue that the assault and battery exclusion is inapplicable to the

present case since there was no physical contact between the gunman and the two

victims.
Lea testified by affidavit that the victims were at least 100 feet away from

the gunman when they were struck by gunfire and that there was no physical

contact between the gunman and any of the shooting victims. Hellmers testified by

deposition that the victims were not involved in the altercation prior to the

shooting, and there was no physical contact between the victims and the gunman.

6 With regard to at least two of these arguments, Appellants refer to a surveillance video, which
was attached to their opposition memorandum. The trial court struck the surveillance video as
being inappropriate summary judgment evidence. The Appellants did not assign as error the trial
court' s ruling on the exclusion of the surveillance video. Matters neither assigned as error nor
argued, or, matters assigned as error but not argued may be considered abandoned. See Uniform
Rules -Courts of Appeal 2- 12. 4; Ranson v. Cooper, 2016- 0029 ( La. App. 1st Cir. 9/ 19/ 16), 228
So. 3d 1254, 1257 n. 3. Therefore, we disregard any arguments pertaining to the surveillance

video, which was not considered by the trial court.

Q,

Appellants claim that First Financial' s definition of battery required physical

contact, thereby creating an ambiguity which should be resolved in their favor.

Initially, we note that assault and battery exclusions are routinely enforced

by our courts. See Hickey v. Centenary Oyster House, 97- 1074 ( La. 10/ 20/ 98), 719

So. 2d 421, 423; Ledbetter, 665 So. 2d at 1169- 70; Guste v. Lirette, 2017- 1248

La. App. 1st Cir. 6/ 4/ 18), 251 So. 3d 1126, 1133. As the Second Circuit has

noted:

Our review of the jurisprudence reveals that the policy provisions in
assault and battery exclusion] cases are sometimes similar but
infrequently identical. However, the conclusion we draw from the
overwhelming majority of cases is that insurers that have assault and
battery exclusions in their policies are generally dismissed from suits
against their insureds arising from injuries or deaths following an
assault or battery. This is true regardless of the theory of recovery put
forth by the plaintiff w - hether it be negligence, intentional tort,
nuisance, premises defect, or the like.

Hudson v. Jager Bomb LLC, 47, 501 ( La. App. 2nd Cir. 11/ 14/ 12), 107 So. 3d 712,

717. A general liability insurance policy is not intended to cover injuries arising

from intentional acts. Hickey, 719 So. 2d at 423. However, some policies contain

an express exclusion for assault and battery, which has been held effective

regardless of whether the insured was a participant in the altercation. Hickey, 719

So. 2d at 423. Accordingly, unless it is ambiguous, the assault and battery

exclusion is to be enforced as written. See, e.g., Howell v. American Cas. Co. of

Reading, PA, 96- 0694 ( La. App. 4th Cir. 3/ 19/ 97), 691 So. 2d 715, 726, writs

denied, 97- 1329, 97- 1379, and 97- 1426 ( La. 9/ 5/ 97), 700 So. 2d 512, 515, and 518

if the exclusion unambiguously excludes coverage, then we must enforce that

contractual language").

In Bennett v. Ragon, 2004- 0706 ( La. App. 1st Cir. 3/ 24/ 05), 907 So. 2d 116,

the defendant attempted to prevent his truck from being stolen. In doing so, he

testified that he fired a warning shot and then attempted to shoot out the tires of the

10

vehicle.
Instead, the defendant accidently shot the driver of the truck. The insurer

of the defendant asserted that the assault and battery exclusion applied and sought

dismissal from the suit, which was granted after the trial. Bennett, 907 So. 2d at

119. Applying the manifest error standard, this court agreed with the trial court

that the actions of the defendant constituted an assault and battery, relying on

either the civil or criminal definitions of assault and battery since the policy

contained no specific definitions. Bennett, 907 So. 2d at 121. We noted that the

defendant intended some offensive contact when he fired the shotgun. Thus, the

pertinent inquiry was not whether the defendant intended to shoot the driver of the

truck, but whether he intended to inflict a harmful or offensive contact. Bennett,

907 So. 2d at 121.

The plaintiff in Fournette v. Tran, 2000- 0805 ( La. App. 4th Cir. 7/ 11/ 01),

792 So. 2d 870, 873, writ denied, 2001- 2731 ( La. 1/ 4/ 02), 805 So. 2d 211, also

argued that there was a question of fact as to whether an assault and/ or battery

occurred triggering the policy' s assault and battery exclusion. A store employee

attempted to block a shoplifter' s path while pointing a gun at the ground. He did

not point the gun at anyone and did not threaten to shoot anyone. The shoplifter

pushed the employee out of the way while leaving the store, causing the gun to

accidentally discharge. The plaintiff, an innocent bystander, was accidentally shot

as he was entering the store. The Fourth Circuit held that the assault and battery

exclusion was unambiguous and that the insurer would not be liable for any

injuries resulting from an assault and/ or battery. Fournette, 792 So. 2d at 873- 74.

The plaintiff argued that the intent of the gunman was a genuine issue of material

fact. Fournette, 792 So. 2d at 874. The employee' s own deposition testimony

determined that he intended to commit an aggravated assault against the shoplifter.

Fournette, 792 So. 2d at 873- 74.

11

The evidence submitted by First Financial to support the motion for

summary judgment was the Policy and the pleadings. The petition alleges that the

gunman "
pulled out a . 40 caliber handgun and began firing shots into the crowd."

We agree with the trial court that the act of firing a . 40 caliber handgun into a

crowd falls within the definition of the assault and battery exclusion of the Policy.
Although the evidence in the present case does not include the deposition of the

gunman, it is alleged that the gunman fired a gun into a crowd, striking eight and

killing two individuals. Therefore, it is evident that the gunman intended to

commit an assault against the persons present, even if the intended target was

different from the individuals struck by his gunfire.

In Nastasia v. Sylvan Inc., 617 So. 2d 128, 129 ( La. App. 5th Cir. 1993), a

First Financial assault and battery exclusion ( similar to Subsection ( 3) of the

assault and battery exclusion at issue in the present case) was at issue, which at the

time provided:

It is agreed and understood that this Insurance does not apply to
bodily injury or property damage arising out of assault and battery or
out of any act or omission in connection with the prevention or
suppression of such acts, whether caused by or at the instigation or
direction of the Insured, his employees, patrons or any other person.

A fight broke out at a night club among patrons. The plaintiff was struck in the

face with a glass beer bottle, even though he alleged he was not involved in the

altercation.
At the time, the policy did not contain definitions of either assault or

battery. However, the court found these terms to be unambiguous. Nastasia, 617

So. 2d at 129. The court also noted that even though the plaintiff was an innocent

bystander, there was no requirement that an assault and battery be directed at a

specific person. Nastasia, 617 So. 2d at 130. Therefore, summary judgment in

favor of the insurer was affirmed.

12

The Louisiana Supreme Court addressed the issues before this court in Jones

v. Estate of Santiago, 2003- 1424 ( La. 4/ 14/ 04), 870 So. 2d 1002, 1010, and set

forth the following principles:

An insured party who shoots someone, generally, is not entitled
to insurance protection because a shooting is ordinarily considered an
intentional act intended or expected to cause bodily injury. This
principle is explained in 15 WILLIAM SHELBY MCKENZIE & H.
ALSTON JOHNSON, Louisiana Civil Law Treatise: Insurance Law
and Practice § 164 at 344 ( 2d ed. 1996), as follows: " Insureds who
pull loaded guns and shoot other persons have not found the courts
receptive to their exculpatory explanations, even in defense of the
insurer' s motion for summary judgment."

Furthermore, in Cavin v. Elliot, 597 So. 2d 1255, 1257 ( La. App. 3rd Cir. 1992),

the court observed:

Louisiana courts have consistently held that the aggressive act
of pulling a loaded gun and firing it at a third party, in and of itself,
supports the conclusion that the defendant/insured intended the
resulting injuries because such consequences are almost certain to
occur as a result of such actions.

The only counter evidence in the present case is the testimony of Lea, who

stated that the victims were at least 100 feet away from the gunman when they

were struck by gunfire and that there was no physical contact between the victims

and the gunman, and the testimony of Hellmers, who stated that the victims were

not involved in the altercation prior to the shooting and that there was no physical

contact between the victims and the gunman. We do not find that the testimony of

either Lea or Hellmers supports the conclusion that the actions of the gunman fall

outside the definition of the assault and battery exclusion of the Policy.

We note that the assault and battery exclusion in the Policy does not require

both an assault and a battery. It specifically applies to " any ` assault' or `battery'

committed or attempted by any person." Without even determining if there was a

battery in this instance, the facts are sufficient to indicate there was an assault as

defined by the Policy. The act of pulling out a loaded gun and firing into a crowd

13

would give a person reason to fear or expect immediate bodily harm" as contained

in the definition of "assault" in the Policy.

We also believe that Appellants' reading of the Policy definition of "battery"

is too narrow. The definition requires " physical contact" but is not limited to

person- to- person contact. The United States Fifth Circuit Court of Appeal has

observed, " In Louisiana, `[ b] attery does not require direct bodily contact between

the actor and the victim."' Swope v. Columbian Chemicals Co., 281 F. 3d 185, 196

5th Cir. 2002) ( quoting Frank L. Maraist & Thomas C. Galligan, Louisiana Tort

Law § 2- 6( a), at 28 ( 1996)). " The contact may be with an inanimate object

controlled or precipitated by the actor, such as the surgeon' s scalpel, a bullet or

even a thrown hamburger. The victim need not be aware of the contact when it

occurs." Swope, 281 F. 3d at 196 ( quoting Maraist & Galligan, Louisiana Tort Law

2- 6( a), at 28, citing Saucier v. Belgard, 445 So. 2d 191 ( La. App. 3rd Cir. 1984);

England v. S & MFoods, Inc., 511 So. 2d 1313 ( La. App. 2nd Cir. 1987)).

Appellants also assert that there is a genuine issue of material fact as to

whether Mar Jay committed other acts of negligence. Therefore, they allege that

the assault and battery exclusion does not preclude coverage for all the claims of

negligence asserted. Fouquet, 49 So. 3d at 48, also involved the interpretation of

an assault and battery exclusion and multiple claims of negligence. The assault

and battery exclusion in Fouquet stated that the insurance did not apply due to

bodily injury" arising from an ( 1) " assault", " battery" or " assault and battery"

committed by any person; ( 2) the failure to suppress or prevent an " assault",

battery" or " assault and battery"; ( 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"; ( 5) " assault", " battery" or " assault and battery" arising out of

14

the negligent hiring, supervision, or training of any person; and ( 6) the use of any

force to protect persons or property whether or not the " bodily injury" or " property

damage" or " personal and advertising injury" was intended from the standpoint of

the insured or committed by or at the direction of the insured. Fouquet, 49 So. 3d

at 47- 48. A bar patron was stabbed several times by another patron. The plaintiff

argued that the assault and battery exclusion did not apply to all his claims, such as

preventing criminal acts, acting as a reasonable person would under similar

circumstances, and failing to assist the plaintiff. Fouquet, 49 So. 3d at 48. This

court disagreed finding that the plaintiff read the exclusionary language too

narrowly and that there were no " separate injuries," only those that stemmed from

the stabbing. Fouquet, 49 So. 3d at 48- 49.

Appellants in this matter also argue that the assault and battery exclusion

does not apply to Mar Jay' s negligence for allowing the participants in two

previous altercations to remain inside the bar; for failing to hire a police security

detail; and for failing to intervene in the two previous altercations. We find these

arguments to be similar to those in Fouquet. The assault and battery exclusion in

the Policy at issue specifically states that it does not apply to bodily injury:

3) Arising in whole or in part out of any act or
omission in connection with avoiding,
preventing, suppressing or halting any actual or
threatened " assault" or " battery."

4) Arising in whole or in part out of any actual or
threatened verbal or physical confrontation or

altercation committed or act or omission in
connection with avoiding, preventing,
suppressing or halting any actual or threatened
verbal or physical confrontation or altercation.

R. 100).

Although the assault and battery in the present case is not identical to the one

involved in Fouquet, we find that the language of the assault and battery exclusion

applies to the other negligence claims made by Appellants.
15

Appellants also aver that it is against public policy to exclude conduct that is

negligent from coverage. Appellants rely on Young v. Brown, 27, 018 ( La. App.

2nd Cir. 6/ 21/ 95), 658 So. 2d 750, 751, writ denied, 95- 1811 ( La. 10/ 27/ 95), 662

So. 2d 1, wherein a tortfeasor accidentally shot the plaintiff as he fell into the

plaintiff.
The Second Circuit reversed the summary judgment in favor of the

insurer. However, the exclusion at issue in Young excluded " intentional or

criminal acts."
Young, 658 So. 2d at 752. The court found the use of the term

criminal acts"
to be ambiguous and susceptible to more than one meaning, since

criminal acts" could be intentional or negligent. Young, 658 So. 2d at 754. The

court held that an exclusion of liability insurance coverage for non -intentional,

inadvertent acts of criminal negligence violates Louisiana' s public policy

established for the protection of innocent injury victims. Young, 658 So. 2d at 754.

We find Young to be distinguishable from the facts of the present case. The

policy exclusion at issue is not one for " criminal acts" but specifically for a defined

assault or battery. Furthermore, the action in Young was a non -intentional,

inadvertent act. In the present case, although the gunman may not have intended to

shoot the ultimate victims, it cannot be disputed that the act of firing a . 40 caliber

handgun into a crowd as alleged by Appellants is at a minimum an assault on those

present and a battery on those individuals struck by the bullets. Therefore, we find

that the assault and battery exclusion is applicable and excluded coverage for the

claims of the Appellants.

Negligent Homicide or Gross Negligence

Appellants also argue that the actions of the gunman amount to negligent

homicide, rather than an intentional tort. They assert that the gunman' s actions in

shooting into a crowd was gross negligence. Appellants relied upon the

surveillance video, which was deemed inadmissible, and the affidavit of Lea to

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support its argument. Lea testified that he saw Errol Scott at least 100 feet away

from the gunman and that there was no physical contact between the gunman and

Errol Scott or any other shooting victims, including Mark Womack. Lea also

discussed what he saw on the video, which is also inadmissible. Relying on these

statements, the Appellants argue that the gunman, " who was involved in the

altercations, began firing his gun once they were outside,
apparently not

specifically or intentionally aiming at any person in particular, but simply firing his

gun in a reckless manner. In doing so, he accidentally shot and killed [Errol] Scott

and Womack." The affidavit of Lea does not support the Appellants' argument

that the gunman accidentally shot the victims. The argument of counsel, no matter

how artful, is not evidence. Pamplemoussier, L.L. C. v. Poche, 2012- 1829 ( La.

App. 1st Cir. 9/ 13/ 13), 187 So. 3d 480, 482.

Furthermore, we find the cases relied upon by Appellant to be

distinguishable. In State v. McFerson, 583 So. 2d 516, 519 ( La. App. 3rd Cir.),

writ denied, 588 So. 2d 113 ( La. 1991), a defendant was convicted of negligent

homicide in violation of La. R.S. 14: 32, when he brought a friend' s loaded gun

into a crowded bar and it discharged, killing an innocent victim, when he pulled

the gun out of his pants pocket. In State v. Barberousse, 458 So. 2d 569, 571 ( La.

App. 3rd Cir. 1984), writ granted, 468 So. 2d 565 ( La. 1985), aff'd, 480 So. 2d 273

La. 1985), a defendant was found criminally negligent when he fatally shot his

sister after pulling out a loaded gun, cocking it, and pointing it at another person.

According to the defendant, he was lowering the gun and attempting to uncock it

when it discharged. The single bullet entered his sister' s chest causing her death

only moments later. In State v. Parker, 431 So. 2d 114, 115 ( La. App. 1st Cir.),

writ denied, 435 So. 2d 433 ( La. 1983), a defendant was found criminally negligent

after shooting through a door without looking believing that there was an

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attempted entry into his home. The bullet struck an innocent person returning from

running errands.

We find nothing in the record to establish that there was an accidental

discharge of the gun in this matter. We find the actions of the gunman fall within

the definition of an assault and/ or battery as defined by the Policy. Therefore,

there are no issues of fact to be resolved at trial, and the trial court did not err in

granting First Financial' s motion for summary judgment.

CONCLUSION

For the above and foregoing reasons, we affirm the trial court' s January 9,

2019 judgment granting summary judgment in favor of First Financial Insurance

Company and dismissing all claims of Bradley B. Womack and Elizabeth Cavalier

Womack, individually and on behalf of Mark Womack, and Erroll E. Strahan and

Tricia Scott Strahan, individually and on behalf of Erroll Scott, against First

Financial Insurance Company. All costs of this appeal are assessed to Bradley B.

Womack, Elizabeth Cavalier Womack, Erroll E. Strahan, and Tricia Scott Strahan.

AFFIRMED.

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