Colony Insurance Co. v. George Barnes, Sr.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 06-10599 ELEVENTH CIRCUIT
JULY 18, 2006
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 05-00135-CV-5-RH-WCS
COLONY INSURANCE CO.,
Plaintiff-Appellant,
versus
GEORGE BARNES, SR.,
individually, d.b.a. Dreamland Inn,
FRANK BROWN, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(July 18, 2006)
Before BLACK, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Colony Insurance Co. (Colony) appeals the district court’s grant of partial
summary judgment to George Barnes, Sr., in which the district court concluded
Colony has a duty to defend Barnes in a wrongful death lawsuit. The district court
did not err, and we affirm.
I. BACKGROUND
Barnes is the owner and operator of Dreamland Inn, a nightclub located in
Greenwood, Florida. On or about May 29, 2004, Faheem Brown was on the
premises of Dreamland Inn when other patrons of the nightclub began firing guns
in the parking lot area. Faheem Brown was hit in the chest by a stray bullet and
died.
Frank Brown and Dora Witherspoon were appointed as co-personal
representatives of the estate of Faheem Brown, and filed a wrongful death action
against Barnes in Florida state court. The complaint alleges Barnes negligently
failed to:
a. suppress or prevent his patrons from recklessly shooting firearms on
the premises;
b. provide an environment safe from firearm usage by patrons in and
around the premises of DREAMLAND INN;
c. hire, supervise, or train security or off-duty law enforcement to patrol
the premises of DREAMLAND INN; and
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d. warn patron FAHEEN S. BROWN of a known likelihood of firearm
usage on the premises of DREAMLAND INN, an ultra-hazardous
activity that has routinely and repeatedly occurred on the premises
over the course of a number of years.
The complaint alleges the insured’s “careless, reckless, and negligent” operation
of the nightclub caused this “ultra hazardous environment.”
Barnes and Dreamland Inn are insured with Colony. The Colony insurance
policy provides for coverage of any lawsuit seeking damages for bodily injury,
including death, arising from an occurrence, which is defined as “an accident,
including continuous or repeated exposure to substantially the same general
harmful conditions.” The Colony policy further contains an assault and battery
exclusion. The exclusion applies to lawsuits seeking damages arising out of or
resulting from:
(1) Assault and Battery committed by any person;
(2) The failure to suppress or prevent assault and battery by any person;
(3) The failure to provide an environment safe from assault and battery or
failure to warn of the dangers of the environment which could
contribute to assault and battery;
(4) The negligent hiring, supervision, or training of any person;
(5) The use of an force to protect persons or property whether or not the
“bodily injury” or “property damage” was intended from the
standpoint of the insured or committed by or at the direction of the
insured.
3
In Colony’s summary judgment motion, Colony asserted the shooting was
excluded from coverage by the assault and battery exclusion. Specifically, the
district court disagreed because the complaint in the wrongful death action alleged
an action that was not an assault and battery. The district court held that assault
and battery under Florida law requires intent, and the complaint alleges a gun was
fired but does not specify whether the shooter did or did not threaten or intend to
hit anyone. The shooting thus did not fit into the assault and battery exclusion for
duty to defend purposes.
Colony appeals, asserting the shooting was excepted by the assault and
battery exclusion, and, therefore, the district court erred in determining Colony
owed Barnes a duty to defend the wrongful death case.
II. DISCUSSION
“In determining whether a duty to defend exists, the trial court is confined to
the allegations in the complaint.” State Farm Fire and Cas. Co. v. Tippett, 864
So. 2d 31, 33 (Fla. 4th DCA 2003).1 “The trial court is restricted to the allegations
set forth in the complaint, regardless of what the insured or others say actually
happened.” Id.1
The parties do not dispute that Florida law applies to this case.
4
Assault and battery are not defined in the policy, but are defined under
Florida law. “An assault is any intentional, unlawful offer of corporeal injury to
another by force, or force unlawfully directed toward the person of another, under
such circumstances as to create a well-founded fear of imminent peril, coupled
with the apparent present ability to effectuate the attempt if not prevented.” Winn
& Lovett Grocery Co. v. Archer, 171 So. 214, 217 (Fla. 1936) (emphasis added).
“A battery consists of the infliction of a harmful or offensive contact upon another
with the intent to cause such contact or the apprehension that such contact is
imminent.” Paul v. Holbrook, 696 So. 2d 1311, 1312 (Fla. 5th DCA 1997)
(emphasis added).
We conclude the district court did not err in determining the complaint
alleged an action that was not an assault and battery. The wrongful death
complaint does not allege the shooter intended to create a well-founded fear of
imminent peril, or that anyone had a well-founded fear of imminent peril.
Similarly, the wrongful death complaint does not allege the shooter intended to hit
Faheem Brown or anyone else. From the allegations in the complaint, the shooter
may have discharged the gun intending not to make anyone apprehensive and
intending not to hit anyone.
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Colony relies on Florida cases in which courts have found the insurer has no
duty to defend the insured. These cases can be distinguished from the present
case. In Miami Beach Entm’t, Inc. v. First Oak Brook Corp. Syndicate, 682 So. 2d
161, 162 (Fla. 3d DCA 1996), the assault and battery exclusion precluded
coverage for harmful or offensive contact between two or more persons regardless
of intent. There is no such language in Colony’s policy. In Britamco
Underwriter’s, Inc. v. Zuma Corp., 576 So. 2d 965, 965 (Fla. 5th DCA 1991), the
plaintiff’s claim of negligence in failing to provide adequate security at a bar arose
from a beating inflicted by other bar patrons–clearly an intentional act. Similarly,
in Perrine Food Retailers, Inc. v. Odyssey Re (London) Ltd., 721 So. 2d 402, 403
n.1 (Fla. 3d DCA 1998), also involving a clearly intentional act, the complaint
alleged the plaintiff was attacked, assaulted and robbed by assailants, one of whom
slashed the plaintiff’s face with a knife.
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We conclude the complaint does not allege any intent; thus, the assault and
battery exclusion does not apply, and Colony has a duty to defend Barnes.2
AFFIRMED.
2
Additionally, we reject Colony’s other arguments on appeal. First, Colony asserts the
shooter’s intent was transferred from another victim to Faheem Brown. The complaint alleges no
intent, thus intent could not have been transferred. Second, Colony asserts coverage only exists
for accidents, and the shooting could not have been an accident. We disagree. The wrongful
death complaint does not allege an intentional act, and an accidental shooting would qualify as an
occurrence under the policy.
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