United States District Court, N.D. Georgia, Atlanta Division
December 12, 2014
FIRST MERCURY INSURANCE COMPANY, Plaintiff,
EMILY SUDDERTH, Defendant
For First Mercury Insurance Company, Plaintiff, Counter Defendant: Christopher Cody Meeks, Seth M. Friedman, LEAD ATTORNEYS, Weissman Nowack Curry & Wilco, P.C., Atlanta, GA.
For Emily Sudderth, Defendant: Ariel Ephraim Shapiro, Magill Atkinson Dermer LLP - Atl, Atlanta, GA; Steven Andrew Suna, Davis Zipperman Kirschenbaum & Lotito, Atlanta, GA; David Marlow Atkinson, Magill Atkinson Dermer, LLP, Atlanta, GA.
For Emily Sudderth, Counter Claimant: Ariel Ephraim Shapiro, Magill Atkinson Dermer LLP - Atl, Atlanta, GA; David Marlow Atkinson, Magill Atkinson Dermer, LLP, Atlanta, GA.
OPINION AND ORDER
THOMAS W. THRASH, JR., United States District Judge.
This is a declaratory judgment action regarding an insurance coverage dispute. It is before the Court on the Plaintiff's Motion for Summary Judgment [Doc. 27] and the Defendant's Motion for Summary Judgment [Doc. 28]. For the reasons stated below, the Plaintiff's Motion for Summary Judgment is GRANTED and the Defendant's Motion for Summary Judgment is DENIED.
On the evening of May 15, 2010, the Defendant Emily Sudderth and her friends went to Soho Grand, a bar in McDonough, Georgia, for drinks. Ms. Sudderth and her friends remained at the bar for about two hours. Around 12:30 or 12:40 A.M., on May 16, Ms. Sudderth went to pay her tab at the bar. While there, Ms. Sudderth heard a commotion behind her and turned around to see a man with a chair. The man threw the chair, hitting Ms. Sudderth in the foot. This caused Ms. Sudderth excruciating pain.
Ms. Sudderth's friends were standing nearby during this incident. Two friends, Cara Campbell and Erika Johnson, testified that they saw a security officer pulling a man out of the bar. Ms. Campbell explained that the security officer had his arms around the man. Ms. Johnson further testified that she saw the security
officer kick, throw, push, or knock the chair that hit Ms. Sudderth.
On April 13, 2012, Ms. Sudderth filed a lawsuit in the State Court of Henry County, Georgia (the " Underlying Lawsuit" ), seeking to recover for personal injuries sustained as a result of this incident. The Underlying Lawsuit seeks to hold Soho Grand and several others jointly and severally liable for Ms. Sudderth's injuries. The Plaintiff First Mercury Insurance Company (" FMIC" ) issued a commercial liability policy to Soho Grand, which was in effect at all relevant times. FMIC defended Soho Grand and its employees in the Underlying Lawsuit pursuant to a reservation of rights under the policy. The policy limits coverage to $100,000 for claims in any way connected to an assault or battery, as defined by the policy. The parties have reached a confidential settlement in the Underlying Lawsuit -- the only remaining issue is whether the insurance policy's assault and battery endorsement applies. Both parties now move for summary judgment on that issue. The Plaintiff contends that the endorsement applies; the Defendant contends that it does not.
II. Legal Standard
Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. The court should view the evidence and any inferences that may be drawn in the light most favorable to the nonmovant. The party seeking summary judgment must first identify grounds to show the absence of a genuine issue of material fact. The burden then shifts to the nonmovant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. " A mere 'scintilla' of evidence supporting the opposing party's position will not suffice; there must be a sufficient showing that the jury could reasonably find for that party." 
FMIC moves for summary judgment, claiming that this incident falls under the assault and battery endorsement, thereby limiting its liability under the policy to $100,000. Ms. Sudderth also moves for summary judgment, claiming that the endorsement does not apply. The party seeking a coverage exclusion bears the burden of proving that the facts warrant application of that exclusion. Exclusions will be construed narrowly and in favor of coverage.
The policy here contains an " Assault and Battery Endorsement," which provides a coverage limitation of $100,000 for any claims or suits for bodily injury or property damage " based upon, related to, arising out of, directly or indirectly resulting from, in consequence of, in any way connected to, or in the sequence of events involving any actual or alleged 'assault' and/or 'battery.'"  The policy defines assault as " the apprehension of harmful or offensive contact by a person or thing, or the apprehension of harmful or offensive contact between or among two or more persons, by threats through words or deeds."  It further defines battery as " a harmful or offensive contact by a person or thing, or a harmful or offensive contact between or among two or more persons." 
Here, Ms. Sudderth testified at her deposition that she was injured when a chair was thrown at her. Although Ms. Sudderth attempts to piece together a different story from other depositions, her own testimony controls. Ms. Johnson's testimony also indicates that the chair was kicked, thrown, pushed, or knocked into Ms. Sudderth. Under either Ms. Sudderth's or Ms. Johnson's version of events, contact with the chair was " a harmful or offensive contact by a person or thing." The contact with the chair therefore qualifies as a battery under the policy definition. Additionally, it is undisputed that Ms. Sudderth was injured while a security guard forcibly removed a man from the bar. That exchange would also constitute a battery under the policy. Under the plain language of the policy, therefore, the $100,000 limit applies.
Ms. Sudderth argues that the assault and battery endorsement renders coverage under the policy illusory and that the Court should therefore disregard it or apply a different definition of battery. Ms. Sudderth is correct that under Georgia law, an insurance policy endorsement may not completely nullify the coverage provided in the main policy. This argument that coverage is illusory here fails for two reasons. First, the endorsement is not a true exclusion from coverage, but rather simply imposes a lower policy limit. Second, because the endorsement would not apply to all scenarios, for example in the case of a slip-and-fall, it would not render coverage illusory even if it were a true exclusion. Additionally, even if this Court were to apply a more narrow definition of battery, the Plaintiff admits that she was injured when a man threw a chair at her. The facts here would trigger the endorsement under any definition of battery. The assault and battery endorsement therefore applies here, limiting FMIC's liability to $100,000. The Plaintiff's motion for summary judgment should be granted. The Defendant's motion should be denied.
For the reasons stated above, the Plaintiff's Motion for Summary Judgment [Doc. 27] is GRANTED. The Defendant's Motion
for Summary Judgment [Doc. 28] is DENIED.