Sphere Drake Insurance P.L.C. v. D'Errico , 4 F. App'x 660 ( 2001 )

                                                                        F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 16 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
SPHERE DRAKE INSURANCE
P.L.C.,
Plaintiff-Appellee,
No. 00-5109
v.                                           (D.C. No. 97-CV-857-K)
(N.D. Okla.)
MORGAN D’ERRICO, individually
and as the person authorized by statue
to present the wrongful death claims
of heirs of Robert D’Errico, deceased;
BICENTENNIAL INC., d/b/a Lady
Godiva’s,
Defendants-Appellants,
and
DANIEL PATRICK HARRIS; CHAD
WAYNE HILLMAN; TRAVIS LEE
SHANNON,
Defendants.
ORDER AND JUDGMENT        *
Before BRORBY , PORFILIO , and BALDOCK Circuit Judges.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
In this declaratory judgment action based on diversity, defendants appeal
the district court’s grant of summary judgment in favor of plaintiff, Sphere Drake
Insurance Company. Sphere Drake brought the action against Bicentennial, Inc.,
a corporation that owns and operates a nude-dancing club called Lady Godiva’s,
and the representative of the estate of Robert D’Errico, a patron of Lady Godiva’s
who died during an altercation with bouncers at the club. Sphere Drake sought a
declaration from the district court as to its duty under a liability insurance policy
to defend or indemnify defendant Lady Godiva’s in a wrongful death and
negligence action brought by the estate of Robert D’Errico.
The district court held that Sphere Drake had no duty to defend of
indemnify Lady Godiva’s under the liability insurance policy. The court based its
holding on two different provisions in the policy: one that excludes coverage for
claims arising out of an assault and battery, and another that limits coverage to
injuries that are caused by an occurrence, which is defined as an accident.
We review the district court’s order granting summary judgment       de novo ,
applying the same legal standard used by that court.   Kaul v. Stephan , 83 F.3d
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1208, 1212 (10th Cir. 1996). The standard requires us to affirm if our review of
the record shows that there is no dispute as to any material fact and that Sphere
Drake is entitled to judgment as a matter of law.       See id. Having reached both of
these conclusions, we affirm.
The insurance policy in this case excludes coverage for any claim arising
out of assault and battery. “Assault and battery” is not defined in the policy.
Defendants assert that the phrase is susceptible to two distinct meanings: in the
criminal context under Oklahoma law it requires a willful and unlawful use of
force, and in the civil tort context it requires only that harmful or offensive
contact be intended. They argue, therefore, that the exclusion is ambiguous and
that they are entitled to interpretation in their favor. Interpreting such an
ambiguity in their favor would mean attributing the criminal definition to “assault
and battery,” which would, in turn, result in coverage. This is so, they argue,
because even if the bouncer’s use of force was willful, it was not unlawful, as he
had the legal right to use force to eject someone from the club.
We begin our analysis with the underlying principle that “[t]he terms of the
parties’ contract, if unambiguous, clear, and consistent, are accepted in their plain
and ordinary sense, and the contract will be enforced to carry out the intention of
the parties as it existed at the time the contract was negotiated.”    Dodson v. St.
Paul Ins. Co. , 

812 P.2d 372

, 376 (Okla. 1991). “The construction of an insurance
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policy should be a natural and reasonable one []. . . [that] effectuate[s] its
purpose.” Wynn v. Avemco Ins. Co. , 

963 P.2d 572

, 575 (Okla. 1998) (quotation
omitted). The determination of whether the “assault and battery” exclusion
creates an ambiguity is a question of law, and “neither forced nor strained
construction will be indulged, nor will any provision be taken out of context and
narrowly focused upon to create and then construe an ambiguity so as to import a
[more] favorable consideration to either party than that expressed in the contract.”
Dodson , 812 P.2d at 376.
Guided by these standards, we find no ambiguity created by the “assault
and battery” exclusion. This is a contract drafted in a civil context whose purpose
is to insure against civil liability, and the terms “assault” and “battery” should be
attributed their common and ordinary meaning in the civil context. An actor is
liable for battery if he acts intending to cause offensive contact and a harmful
contact results. Restatement (Second) of Torts § 13 (1964-65);     see also Brown v.
Ford , 

905 P.2d 223

, 229-30 & n.34 (Okla. 1995) (stating that the common law of
Oklahoma with respect to the torts of assault and battery reflects the definitions in
the Restatement). There is no question in this case that the bouncer intended to
cause an offensive contact and that the result was a harmful contact. His conduct
comes within the unambiguous “assault and battery” exclusion, and, therefore, the
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district court was correct in determining that Sphere Drake was not obligated to
defend or indemnify Lady Godiva’s under the insurance policy.
In addition, yet another policy provision dictates that Sphere Drake has no
duty under the policy to defend or indemnify the club in the wrongful death
action. The policy states that the insurance applies to bodily injury only if it is
caused by an occurrence. An occurrence is defined as “an accident.” App. at
286. Although Mr. D’Errico’s death may not have been intended, his death was,
nonetheless, caused by acts that were intended to cause offensive contact. Acts
that are intended to and do, in fact, cause offensive contact constitute the
intentional tort of battery and are not “an accident.”      See Farmers Alliance Mut.
Ins. Co. v. Salazar , 

77 F.3d 1291

, 1297 (10th Cir. 1996) (applying Oklahoma law
in discussing what constitutes an “accident” and holding that murder, in light of
intentional nature of crime, was not an accident);       Penley v. Gulf Ins. Co. , 

414 P.2d 305

, 308 (Okla. 1996) (“an intentional or willful tort would negative the
existence of an accident” (quotation omitted)). Consequently, Mr. D’Errico’s
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death was not caused by an occurrence, and the district court was correct in
holding that Sphere Drake had no duty to defend or indemnify on that basis, as
well.
AFFIRMED.
Entered for the Court
Wade Brorby
Circuit Judge
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