Dennis Proshee v. Shree, Inc. D/B/A Southerner Motel

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-1145

DENNIS PROSHEE

VERSUS

SHREE, INC. d/b/a SOUTHERNER MOTEL

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 212,345
HONORABLE GEORGE C. METOYER, JR., DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Sylvia R. Cooks, Jimmie C. Peters, and J. David Painter, Judges.

AFFIRMED.

Jacques M. Roy
1100 M.L. King Drive
Alexandria, LA 71301
Counsel for Plaintiffs-Appellants,
DENNIS PROSHEE

Victor H. Sooter
Elizabeth Brown Hilburn
P.O. Box 1671
Alexandria, LA 71309
Counsel for Defendant-Appellant,
SHREE, INC. d/b/a SOUTHERNER MOTEL

Matthew J. Ungarino
David I. Bordelon
Suite 1280 Lakeway Two
3850 North Causeway Boulevard
Metairie, LA 70002
Counsel for Defendant-Appellee,
Century Surety Company

PAINTER, Judge.

Hotel patron who was allegedly beaten and robbed by unknown assailants in

the hotel parking lot brought suit against the hotel. The insurer of the hotel intervened

and filed a Motion for Summary Judgment based on the assault and battery exclusion

contained in its policy. The trial court granted summary judgment in favor of the

insurer and both plaintiff and the insured appealed. For the reasons that follow, we

affirm.

Facts and Procedural History

This is an insurance coverage issue arising out of the claims of Plaintiff, Dennis

Proshee, against Shree, Inc. d/b/a Southerner Motel with respect to injuries allegedly

sustained by Proshee as a result of an assault and battery upon Proshee by unknown

assailants that occurred outside of Proshee’s room in the parking lot at the Southerner

Motel on September 20, 2002. Proshee alleged the following acts of negligence by

Shree: (1) failure to provide adequate security; (2) failure to provide adequate lighting;

(3) failure to observe what a reasonably prudent business entity should have or could

have observed; (4) failure to notice dangerousness of premises; and (5) other acts of

negligence to be proven at trial.

At the time of this incident, Century Surety Company had in effect a policy of

insurance with the Southerner Motel as a named insured. Shree filed a Third-Party

Demand against Century seeking indemnity from Century should it be held liable for

damages to Proshee and to recover all attorney’s fees and defense costs incurred by

virtue of Century’s failure to defend Shree. Century answered and filed a Motion for

Summary Judgment based on an asserted lack of coverage by virtue of several policy

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exclusions, including one exclusion for failure to maintain secure or safe premises and

one exclusion for assault and battery.

The relevant exclusions read as follows:

SPECIAL EXCLUSIONS AND LIMITATIONS ENDORSEMENTS

9. Failure to Maintain Secure of Safe Premises

Claims arising out of, caused by, resulting from, or alleging, in whole or
in part, any insured’s failure to thwart, foil, avoid, hinder, stop, lessen or
prevent any attack, fight, assault, theft, or crime. The Company has no
obligation to defend or indemnify any such claims. This exclusion
applies to all individuals or entities qualifying as an insured under
Section II – Who Is An Insured, including any and all Additional
Insureds.”

EXCLUSION – ASSAULT AND BATTERY

1. This insurance does not apply to “bodily injury,” “property damage,”
“personal injury,” or “advertising injury” arising out of or resulting from:
a. any actual, threatened or alleged assault or battery;
b. the failure of any insured or anyone else for whom any insured is
or could be held legally liable to prevent or suppress any assault
or battery;
c. the failure of any insured or anyone else for whom any insured is
or could be held legally liable to render or secure medical
treatment necessitated by any assault or battery;
d.. the rendering of medical treatment by any insured or anyone else
for whom any insured is or could be held legally liable that was
necessitated by any assault or battery;
e. the negligent:
(i) employment;
(ii) investigation;
(iii) supervision;
(iv) training;
(v) retention;
of a person for whom any insured is or ever was legally
responsible and whose conduct would be excluded by 1.(a),(b),(c),
or (d) above;
(f) any other cause of action or claim arising out of or as a result of
1.(a),(b), (c), (d), or (e) above.

2. We shall have no duty to defend or indemnify any claim, demand, suit,
action, litigation, arbitration, alternative dispute resolution or other
judicial or administrative proceeding seeking damages, equitable relief,
injunctive relief, or administrative relief where:

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(a) any actual or alleged injury arises out of any combination of an
assault or battery-related cause and a non-assault or battery-related
cause.
(b) any actual or alleged injury arises out of a chain of events which
includes assault or battery, regardless of whether the assault or
battery is the initial precipitating event or a substantial cause of
injury.
(c) any actual or alleged injury arises out of assault or battery as a
concurrent cause of injury, regardless of whether the assault or
battery is the proximate cause of injury.

3. For the purposes of this endorsement the words assault and battery are
intended to include, but are not limited to, sexual assault.

Based on the finding that “[t]he specific exclusions as to assault and battery

were specifically spelled out and at this point not subject to any further interpretation

as to the exclusion that it would be covered or a lack thereof,” the trial judge granted

Century’s motion. This devolutive appeal by Shree and Proshee followed.

Discussion

Appellate courts review summary judgments de novo, under the same criteria

which govern the district court’s consideration of the appropriateness of summary

judgment. Potter v. First Fed. Sav. & Loan Ass’n of Scotlandville, 615 So.2d 318

(La.1993). In this case, the inquiry on de novo review involves three questions: (1)

whether the exclusion is clear and unambiguous; (2) whether the exclusion applies to

the facts of this case; and (3) whether there are any genuine issues of material fact

precluding summary judgment. The final issue involves the dismissal of Shree’s

claims against Century relative to the duty to defend.

Ambiguous terms in an insurance contract are construed liberally in favor of the

person claiming coverage. Westerfield v. LaFleur, 493 So.2d 600 (La.1986). An

ambiguity in an insurance policy is said to exist when the pertinent provision can be

reasonably construed in two different ways. McCarthy v. Berman, 95-1456 (La.

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02/28/96), 668 So.2d 721. The question is what would a reasonable person in the

position of the insured have understood them to mean. South Central Bell Telephone

Co. v. Ka-Jon Food Stores of Louisiana, Inc., 93-2926 (La. 05/24/94), 644 So.2d 357.

The interpretation of an insurance policy is usually a legal question that can be

properly resolved by a motion for summary judgment. Miller v. Superior Shipyard

and Fabrication, Inc., 01-2907, p. 4 (La. App. 1 Cir. 08/20/03), 859 So.2d 159, 162,

writ denied, 03-2643 (La. 12/12/03), 860 So.2d 1159. However, with respect to

summary judgments relating to coverage issues, the Louisiana Supreme Court has said

that summary judgment may not be rendered declaring lack of coverage unless there

is no reasonable interpretation of the policy, when applied to the undisputed material

facts shown by the evidence supporting the motion under which coverage could be

afforded. Westerfield, 493 So.2d at 605. Even though the Westerfield case was

decided before the changes to La.Code Civ.P. art. 966 made summary judgments

favored under the law, this particular holding has continued to be followed. See

Jessop v. City of Alexandria, 2003-1500 (La. App. 3 Cir. 03/31/04), 871 So.2d 1140

citing Miller, v. Superior Shipyard and Fabrication, Inc., 01-2907, p. 4 (La. App. 1

Cir. 08/20/03), 859 So.2d 159, 162.

In this case, the first issue is whether the assault and battery exclusion contained

in Century’s insurance policy is ambiguous. Shree and Proshee assert that the policy

language is ambiguous because it states only “any actual, threatened or alleged

assault or battery” and is silent as to whether the assault or battery must be committed

by the insured or any third party. Century, of course, maintains that its assault and

battery exclusion is clear and unambiguous.

In Alexander v. Barflies, Inc., 96-2177, p. 2 (La. App. 4 Cir. 01/15/97), 687

So.2d 603, 604, writ denied, 97-0387 (La. 03/21/97) 691 So.2d 95,the policy’s assault

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and battery exclusion read, in part, “assault and battery, whether caused by or at the

instruction of, or at the direction of or negligence of the insured, his employees,

patrons or any causes whatsoever, . . .” The trial court denied the insurer’s motion for

summary judgment based on its finding that had the exclusion intended to be

applicable to third party acts outside the care, custody, control and premises of

Parkway Tavern, it would have been specifically listed in the exclusion. The fourth

circuit, however, reversed, and stated as follows:

“Any causes whatsoever” is as clear and unambiguous as it is possible
to be. Its plain and literal meaning leads to no “absurd consequences.”
The same cannot be said of the interpretation urged by the plaintiff and
adopted in the reasoning of the trial court which leads to the illogical
result of a premises policy excluding coverage for premises assault and
battery, while simultaneously and incongruously providing coverage for
off premises assault and battery perpetrated by third parties having no
connection with Barflies and its patrons.

Id. at 605.

“Any actual, threatened or alleged assault or battery” as contained in the policy

under consideration in this case is as clear and unambiguous as it is possible to be for

the same reasons as “any causes whatsoever.” “Any actual, threatened or alleged

assault or battery” means just what it says – any assault or battery is excluded

regardless of who perpetrated it.

In Jackson v. Rogers, 95-0486 (La. App. 1 Cir. 11/09/95), 665 So.2d 440, the

exclusion read:

This insurance does not apply to:
a. “Bodily injury” or “property damage”:
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2. Arising out of assault or battery, or out of any act or omission in
connection with the prevention or suppression of an assault or
battery.

Id. at 443.

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Like the policy at issue herein, this provision did not make any mention of who

had to commit the assault or battery in order for it to be included within the exclusion.

The first circuit expressly found that the above-quoted assault and battery exclusion

was clear and unambiguous. While there was some question as to how Jackson’s

alleged injuries arose, the first xircuit found that this dispute was of no moment to the

coverage issue because whether it arose from the altercation with the business’

employee or from the attempted suppression of the battery by the business’ employee,

liability would be excluded by the clear provisions of the policy.

Having determined that the language of the exclusion is clear and unambiguous,

the second inquiry is whether the exclusion applies to the facts of this case. Shree

argues that the assault and battery exclusion is inapplicable because it contains the

ambiguities discussed herein above. However, Shree attempts to distinguish Jackson

on the grounds that the case involved acts by the named insured or persons for whom

the named insured was responsible. This ignores the fact that the plaintiff in Jackson

also filed suit against the unknown assailant. Here, the exclusion applies to the facts

of the case since Proshee alleges “bodily injury” and “personal injury” arising out of

“any actual, threatened or alleged assault or battery.”

The third inquiry is whether there are any genuine issues of material fact that

preclude the issuance of summary judgment in this case. As to this inquiry, Shree and

Proshee allege other grounds supporting denial of Century’s Motion for Summary

Judgment. Shree contends that one might reasonably infer from Proshee’s own

handwritten occupancy card that his allegations are not truthful with respect to his

ownership of the car and that his injuries did not even occur on the premises.

Although this is a disputed fact, it is not material to the determination of coverage

under the Century policy. The case at bar can be distinguished from Lawrence v.

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Security Professionals, 32,325 (La. App. 2 Cir. 08/18/99), 743 So.2d 247, writ denied

99-2727 (La. 11/24/99), 750 So.2d 991, where the Second Circuit upheld the trial

court’s denial of the insurer’s motion for summary based on the finding that there was

a genuine issue of material fact with respect to whether plaintiff’s injuries were caused

by an intentional battery or an accident. In that case, plaintiff was injured when a

fight broke out in the bar where she was. She alleged that she was injured by the

security guard attempting to break up the fight and that she was not involved in the

fight. The security guard denied that he hit the plaintiff at all and asserted his belief

that she was involved in the fight. Even accepting the insurer’s contention that the

policy exclusion would apply regardless of who committed the battery, the Court

found that the insurer was required to show the lack of a genuine factual dispute that

plaintiff’s injuries resulted from an intentional tort in order to establish its entitlement

to summary judgment. In that case, there was apparently no dispute that the plaintiff

was injured, only as to how she was injured and the Court noted that the case did not

involve an undisputed element of intentional conduct.

In the case at bar, while there may be some dispute as to whether or not the

plaintiff was even injured, there is no dispute that if he was injured, it was by an

intentional act and that this act is included within the assault and battery exclusion.

Proshee argues that he was robbed as well and that this is a separate damage

from the severe physical beating he suffered. Proshee also attempts to frame his case

as a premises defect case (i.e., the lack of security in an area with a history of criminal

activity) in an attempt to have the assault and battery exclusion deemed inapplicable.

The arguments by Proshee are disingenuous at best. The exclusion clearly

extends to “the failure of any insured or anyone else for whom any insured is or could

be held legally liable to prevent or suppress any assault or battery.” [See Section

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(1)(b).] And, even if one finds that the robbery or failure to prevent the assault or

battery is a non-assault or battery related cause, the policy exclusion clearly and

unambiguously states that Century shall have no duty to defend any claim where “any

actual or alleged injury arises out of any combination of an assault or battery-related

cause and a non-assault or battery-related cause.” [See Section (2)(a).] In such case,

Maise v. Cat’s Meow, Inc., 96-1998 (La. App. 4 Cir. 10/16/96), 683 So.2d 846, is

instructive. In that case, the Fourth Circuit held that irrespective of the fault alleged

by plaintiff (whether negligence, intentional act or otherwise), because their injuries

arose out of a battery, the policy provided no coverage because of its assault and

battery exclusion.

Furthermore, see Washington v. Spurlock, 97-2411 (La. App. 4 Cir. 12/17/97),

703 So.2d 1378, writ denied 98-0173 (La. 03/20/98), 715 So.2d 1214, where the

plaintiff was injured after being caught in the cross-fire between the bar owner and

unknown robbers. The insurer moved for summary judgment based on the assault or

battery exclusion in its policy. Plaintiff argued that her injuries arose out of a robbery

rather than an assault or battery. The trial court agreed and denied the insurer’s

motion. The fourth circuit, however, reversed and granted summary judgment in

favor of the insurer based on the finding that the plaintiff’s injuries constituted a

battery, even though committed in the course of a robbery.1 The fourth circuit

explained it by saying, “[s]imply put, the respondent was injured by a battery – no

battery, no injuries.”

1
The First Circuit has said that by definition a robbery necessarily encompasses either a
battery (force) or an assault (intimidation). See Law v. B.Z. Enterprise One, Inc., 96-0537 (La.
App. 1 Cir. 12/20/96), 684 So.2d 1121.

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The final issue in this case is whether Century has a duty to defend Shree. In

brief, counsel for Shree alleges that Century owes defense and indemnity to Shree.

However, this issue is not specifically briefed and is merely raised in a conclusory

statement in the “Issues on Appeal” section of Shree’s brief which states that if the

exclusions are inapplicable, then Century owes defense and indemnity.

Insofar as the judgment dismisses Shree’s claims against Century, this is

correct. Although the insurer’s duty to defend is broader than its liability for damages,

Century had no duty to defend in this case because of the Special Exclusions and

Limitations Endorsements section dealing with failure to maintain safe or secure

premises and Section 2 of the Assault and Battery Exclusion. In Guidry v. Deny, 95-

2115 (La. App. 4 Cir. 03/14/96), 671 So.2d 979, plaintiff sued the individual who

allegedly attacked him (Deny) and the property owner of the place where the attack

took place for failing to prevent the attack and for their lack of security. The fourth

circuit found that all of plaintiff’s injuries, according to his own petition, arose out of

Deny’s acts of assault and battery and that the assault and battery exclusion applied

such that there was no duty to defend. Such is the case here: all of the damages

claimed by plaintiff in his petition arise out of the alleged assault and battery and even

though he alleges he was robbed in the petition, he does not specify what property was

stolen and does not list anything with respect to the robbery in the paragraphs of the

petition concerning injuries and expenses incurred.

Decree

For the foregoing reasons, the judgment of the trial court granting summary

judgment to Century Surety Company is affirmed with all costs of this appeal to be

divided equally between both appellants.

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AFFIRMED.

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