In general, those seeking a defense for injury allegedly caused in a physical altercation have an uphill battle.  First, the policy may have an assault and battery exclusion.  And even if not, courts routinely conclude that allegations of assault and battery are not an “occurrence” (accident) or the expected or intended exclusion applies.  I rarely report on these types of cases in Coverage Opinions because they are routine and predictable. 

But there is nothing routine nor predictable about the court’s decision in Nationwide Gen. Ins. Co. v. Staples, No. 21-401 (E.D. Va. Sept. 7, 2022).  In fact, the court seems to have handed policyholders a nifty way to secure a defense for assault and battery claims.

Noman Stevens filed a complaint against Brian Staples alleging that Staples physically attacked and injured him at AJ Gators Sports Bar and Grill.  Staples sought coverage from Nationwide under a homeowner’s and umbrella policy.  The insurer undertook Staples’s defense under a reservation of rights and filed a coverage action seeking a determination of no duty to defend or indemnify.  At issue before the court was Nationwide’s motion for judgment on the pleadings.

While not relevant to the discussion here, first the court took on a notice issue, concluding that no coverage was owed under the primary policy because of late notice.  However, this was not a basis for a disclaimer under the umbrella policy.  Thus, the court moved to address coverage for a defense for Staples under the umbrella policy.

As you would expect, the court addressed whether Mr. Staples’s actions qualified as an “occurrence” and concluded that they did not:

“In applying the Eight Corners Rule, the Court finds that Mr. Staples’ actions, as alleged in the Stevens complaint, do not qualify as an ‘occurrence.’ Mr. Stevens alleged that Mr. Staples ‘came at Stevens in a threatening manner’ and ‘unlawfully and wantonly without justification, excuse or caveat, attacked Stevens.’  Mr. Stevens further alleged that Mr. Staples, ‘without being provoked in any way by Stevens, viciously attacked Stevens, wrapping his arm around Stevens’ neck in a choke hold and slamming Stevens [sic] head into the table and concrete patio.’ Additionally, Mr. Stevens alleged that ‘Defendant [Staples] purposefully and intentionally attacked and injured Stevens.’ The underlying complaint alleged actions that are intentional on their face, and Mr. Stevens’ injuries are the natural and probable consequence of the alleged intentional act. An intentional act is not an accident and thus does not qualify as an ‘occurrence.’”

This should have ended the story.  No “occurrence” means that the insuring agreement has not been satisfied.  End of discussion.  Do not pass go.  Do not collect $200.  Nationwide saw it as I did and made the same argument.

But the court continued on, addressing whether the “expected or intended” exclusion applied.  More to the point, whether the exception to the “expected or intended” exclusion – “bodily injury resulting from the use of reasonable force by an insured to protect persons or property” – applied.  This is usually known as the “self-defense” exception to the “expected or intended” exclusion.  The court here called it the “reasonable force” exception.           
 
Despite the argument that a finding of no “occurrence” should have ended things, the court concluded that it must construe the contract as a whole, seeking to give effect to every provision, and avoid any interpretation that renders a provision superfluous or meaningless.          

As the court saw it, under Nationwide’s rationale, “this interpretation of the contract would mean that a court could rarely, if ever, reach the question of whether the exclusion for intended bodily injury or the exception for use of reasonable force applied because, by definition, an intentional act is not an ‘occurrence’ under the general policy. In other words, Nationwide Mutual’s interpretation of the Umbrella Policy would render the reasonable force exception meaningless, whereas this Court is required to avoid, where possible, interpreting a contract to render particular provisions meaningless.”

Facing this, Nationwide made the point that no extrinsic materials demonstrated that Mr. Staples acted in self-defense.  However, this was not a consideration by the court, as it was bound to use the eight corners rule to determine if there is a duty to defend.  So, whether Mr. Staples used reasonable force to protect persons or property was a question for the factfinder in the underlying action.

Under this flawed rationale, an insured can get a defense for what is clearly intentionally caused injury.  It won’t be an “occurrence,” but that won’t be the end of it – as it should be -- as the court will then turn to the applicability of the “expected or intended” exclusion.  It will apply for such intentionally caused injury.  But that also won’t be the end of it, as the court will then move on to the possible applicability of the self-defense exception.

There will be nothing in the complaint saying that the insured acted in self-defense.  Of course not.  No plaintiff would ever plead that the defendant acted in self-defense, as it would be an admission that the plaintiff was an aggressor.  So, under the four corners/eight corners rule, whichever your preference, because the applicability of the self-defense exception cannot be ruled out – and must await the facts developed in the underlying action – a defense is owed.  This court seems to have created a road map for an insured getting a defense for what is clearly intentionally caused injury.