Canadian Underwriter

Why this insurer doesn’t have to defend an injured bar patron’s lawsuit

November 13, 2023   by Alyssa DiSabatino

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An Ontario insurer is not required to defend a Woodstock, Ont., sports bar against a “mixed” claim from a patron who said he sustained injuries after he was over-served and then forcibly removed from the bar, the Ontario Superior Court of Justice has found.  

Although the court found the patron was injured partly due to falling off a barstool, and partly from being ejected from the bar, the court found the insurer’s policy exclusion was worded so broadly, the patron couldn’t sue for the barstool injuries because they couldn’t be detached from the injuries allegedly sustained from “assault and battery” while being ejected from the bar.

“This decision appears to depart somewhat from the general tendency in the jurisprudence to construe insurance policies – and particularly exclusions – in favour of an insured,” CanLii Connect authors Aidan Fishman and Laura M. Day wrote in a commentary on the case.  

In Jack-O’s [Sports] Bar v. US Liability Insurance Co, a bar patron alleged he suffered bodily injuries when he was over-served by the bar employees and fell from a bar stool. He was then forcibly removed by the bar proprietor who the patron said injured him further. He sought damages from the bar for his injuries. 

The sports bar brought a third-party claim against their brokerage, BrokerLink, and insurer, United States Liability Insurance Company, after the insurer denied them commercial general liability (CGL) coverage for the incident.  

Essentially, the insurer held that its policy language excluded assault or battery, and therefore, they had no duty to defend their insured.

“It is undisputed that the [bar’s] claim falls within primary grants of coverage within the policy for claims for ‘compensatory damages’ because of ‘bodily injury,’” Justice Tranquilli wrote in her court analysis. “However, the insurer relies upon broadly worded exclusions that deny a duty to defend where the action is in consequence of or ‘in any way involving’ assault or battery, including whether it is caused in whole or in party by ‘negligence’ and any ‘acts or omissions’ of any insured or its employees.” 

In his statement of claim, the patron alleged his injuries were a “direct result” of the “negligence” of the sports bar. 

Jack-O’s called for contribution and indemnity from their insurer and brokerage who placed the insurance coverage. But the insurer said the policy exclusions applied. 

Ultimately, the court found the terms of the policy expressly defeated the sports bar’s claim. 

The CGL policy provides coverage for bodily injury or property damages. But it includes an assault or battery exclusion for:  

  • “Any ‘actions,’, claim or demand based upon any actual or alleged ‘assault’ or ‘battery,’ or out of any act of omission in connection with the prevention or suppression of any ‘assault’ or ‘battery,’ including the use of reasonable force to protect persons or property… 
  • Further, no coverage is provided for any claim, demand or ‘actions’ in which the underlying operative facts constitute ‘assault’ or ‘battery.” 
  • This exclusion applies to all “bodily injury”… sustained by any person, including emotional distress and mental anguish, arising out of, directly or indirectly result from, in consequence of, or in any way involving ‘assault’ or ‘battery’… arising out of or caused in whole or in part by negligence or other wrongdoing… 

The judge noted the policy even went so far as to define the terms “assault” and “battery” beyond the understood legal definition.  

Essentially, the court found that the policy language was worded so broadly that the patron’s alleged injuries from the barstool fall could not be separated from the entirety of the claim against the bar. 

“The exclusionary language is drafted in the broadest terms such that the defined terms of ‘assault’ or ‘battery’ need only be part of the chain of events leading to the claimant’s injuries,” the decision reads. 

The third-party claim against insurer and the brokerags was ultimately dismissed. The sports bar is obligated to pay the costs of the motion, $12,500, to the insurer. 

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