Alea London, Ltd. v. Richard Nagy, Jr., and Christopher Buckler

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res
FILED
Jul 06 2012, 9:26 am
judicata, collateral estoppel, or the law
of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEES:
STEVEN D. GROTH ADAM J. SEDIA
BRIAN H. BABB Rubino Ruman Crosmer & Polen
Bose McKinney & Evans, LLP Dyer, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ALEA LONDON, LTD., )
)
Appellant-Defendant, )
)
vs. ) No. 45A05-1202-CT-83
)
RICHARD NAGY, JR., and, )
CHRISTOPHER BUCKLER, )
)
Appellees-Plaintiffs. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable William E. Davis, Judge
Cause No. 45D05-0412-CT-310
July 6, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Alea London, LTD, (“Alea”) appeals the trial court’s entry of summary judgment
in favor of Richard Nagy, Jr., and Christopher Bucker (collectively “the Plaintiffs”)
allowing them to use proceedings supplemental to enforce a judgment against Alea as the
insurer of Copper Entertainment, Inc., d/b/a The Copper Penny Sports Bar and Grill
(“The Copper Penny”). We reverse and remand.
Issue
Alea raises two issues, which we consolidate and restate as whether the trial court
properly granted the Plaintiffs’ motion for summary judgment and denied Alea’s motion
for summary judgment.
Facts
On April 30, 2004, Nagy and Buckler were at The Copper Penny in Hammond.
Buckler accidently bumped into another patron causing her to spill her drink on herself.
When she threw the remainder of her drink on Buckler, Buckler backed away with his
hands in the air, and a “verbal exchange” took place. App. p. 63. In response, Anthony
Aponte struck Buckler on the head with a bottle. When Nagy saw that Buckler, his
friend, had been injured and that Aponte and Brandon Odonovich were leaving, Nagy
followed the two men outside. As he exited The Copper Penny, Nagy was struck in the
head with an object by Aponte and/or Odonovich and was rendered unconscious.
Nagy and Buckler filed a complaint against The Copper Penny, Aponte, and
Odonovich alleging that the Plaintiffs were attacked by Aponte and Odonovich and that
The Copper Penny failed to provide proper security. During the course of the
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proceedings, Odonovich was never served with process and default judgment was entered
against Aponte. In 2007, following a bench trial, the trial court found in part:1
7. Further, around 9:00 p.m. . . . an altercation took place
between Christopher Buckler and an unknown female patron,
who was also visibly intoxicated.
8. That Christopher Buckler accidentally bumped said
female patron and she spilled a drink on herself and then
threw the remainder of her drink on Christopher Buckler
resulting in an altercation.
9. At said time and place Christopher Buckler backed
away from the said female patron with his hands in the air
and a verbal exchange took place between Mr. Buckler and
the female patron.
10. Further, the Defendant Anthony Aponte apparently
acting in defense of the unknown female patron struck
Christopher Buckler in the head with a bottle causing injuries
to Mr. Buckler.
11. The Court further finds that at the time of said
altercation, the Plaintiff Richard Nagy, Jr. was seated at the
bar and did not see the altercation between Christopher
Buckler who was his friend and Anthony Aponte. However,
he did see that his friend Mr. Buckler had been injured and
saw the two individuals who were later identified as Anthony
Aponte and Brandon Odonovich leaving [The Copper
Penny’s] premises. Mr. Nagy then followed Mr. Aponte and
Mr. Odonovich outside [The Copper Penny] to try to
determine what had taken place.
12. Further, as Mr. Nagy exited [The Coppery Penny], he
was stuck in the head by an object by one or both of said
individuals and was rendered unconscious.
1
On appeal, the parties appear to agree that the absolute waiver of policy defenses is not an issue and that
the trial court’s findings and conclusions conclusively establish the facts surrounding the incident.
Although we agree that the trial court’s findings and conclusions are binding, we do not agree with the
Plaintiffs’ assertion that the findings and conclusions establish that their injuries were incurred in defense
of others.
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Id. at 62-63. The trial court entered judgment for Buckler and against The Copper Penny
and Aponte in the amount of $25,000 and for Nagy and against The Copper Penny and
Aponte in the amount of $45,000.
In 2009, the Plaintiffs filed a motion to enforce the judgment by proceedings
supplemental against Alea as The Copper Penny’s insurer under a commercial general
liability coverage policy (the “Policy”). On July 14, 2011, the Plaintiffs moved for
summary judgment against Alea. On August 25, 2011, Alea responded to the Plaintiffs’
motion for summary judgment and filed a cross-motion for summary judgment. After the
Plaintiffs replied, the trial court entered summary judgment in their favor and denied
Alea’s motion for summary judgment. Alea now appeals.
Analysis
Alea argues that the trial court improperly granted summary judgment in favor of
the Plaintiffs and denied its motion for summary judgment. We review a trial court’s
ruling on a motion for summary judgment using the same standard applicable to the trial
court. Perdue v. Gargano, 964 N.E.2d 825, 831 (Ind. 2012). “Summary judgment is
appropriate only if the designated evidence reveals ‘no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.’” Id. (quoting
Ind. Trial Rule 56(C)). All facts and reasonable inferences drawn from the evidence
designated by the parties are construed in the light most favorable to the non-moving
party. Id. “We do not defer to the trial court’s determination of the law.” Id.“Insurance policies are governed by the same rules of construction as other
contracts, and their interpretation is a question of law.” Masten v. AMCO Ins. Co., 953
4
N.E.2d 566, 569 (Ind. Ct. App. 2011), trans. denied. When interpreting an insurance
policy, our goal is to ascertain and enforce the parties’ intent as manifested in the policy,
and we construe the policy as a whole and consider all of the provisions of the policy and
not just the individual words, phrases or paragraphs. Id. “Because we construe insurance
policies as a whole in each case, prior cases that focus upon similar or identical clauses or
exclusions are not necessarily determinative of later cases because the insurance policies
as a whole may differ.” Id.Further, where, as here, we interpret an endorsement to an insurance policy, the
endorsement “‘must be read together, construed, and reconciled with the policy to give
effect to the whole.’” Id. (quoting Stevenson v. Hamilton Mut. Ins. Co., 672 N.E.2d 467,
473 (Ind. Ct. App. 1996), trans. denied). We construe the policy and relevant
endorsements from the perspective of an ordinary policyholder of average intelligence.
Id. Further, we will accept an interpretation of the contract language that harmonizes the
provisions rather than one that supports a conflicting version of the provisions. Id.If the language is clear and unambiguous, we give it its plain and ordinary
meaning. Id. An ambiguity exists where a provision is susceptible to more than one
interpretation and reasonable persons would differ as to its meaning; an ambiguity does
not exist merely because the parties proffer differing interpretations of the policy
language. Id. at 569-70. “Ambiguities are strictly construed against the insurer,
particularly where an exclusion of coverage is concerned.” Id. at 570.
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The Plaintiffs argue that summary judgment in their favor was proper because the
incident was an “occurrence”2 as defined by the Policy and because none of the Policy’s
exclusions apply. Relying on an endorsement containing an exclusion for assault and
battery, Alea asserts that the Policy excludes coverage for the Plaintiffs’ claims.
The Assault and Battery Exclusion provides:
This insurance does not apply to any claim arising out of:
A. Assault and/or Battery committed by any person
whosoever, regardless of degree of culpability or intent and
whether the acts are alleged to have been committed by the
insured or any officer, agent, servant or employee of the
insured or by another person; or
B. Any actual or alleged negligent act or omission in the:
1. Employment;
2. Investigation;
3. Supervision;
4. Reporting to the proper authorities or failure to
so report; or
5. Retention;
of a person for whom any insured is or ever was legally
responsible, which results in Assault and/or Battery; or
C. Any actual or alleged negligent act or omission in the
prevention or suppression of any act of Assault and/or
Battery.
App. p. 30.
The Plaintiffs assert, “the Policy language excludes from coverage injuries
resulting from battery, but provides coverage via an exception for injuries incurred to
2
The Policy applies to bodily injury caused by an “occurrence,” which the Policy defines as “an
accident, including continuous or repeated exposure to substantially the same general harmful
conditions.” App. pp. 34, 43. The parties dispute whether the incident was an occurrence. However,
because we conclude that the Assault and Battery Exclusion applies, it is not necessary to determine
whether the incident was an “occurrence.”
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protect persons or property.” Appellees’ Br. p. 17. This argument for coverage is based
on the Policy’s Expected or Intended Injury Exclusion, which provides:
2. Exclusions.
This insurance does not apply to:
a. Expected or Intended injury
“Bodily injury” or “property damage” expected
or intended from the standpoint of the insured.
This exclusion does not apply to “bodily injury”
resulting from the use of reasonable force to
protect persons or property.
App. p. 34. According to the Plaintiffs, “a harmonized reading of the policy language as
a whole establishes that ‘use of reasonable force to protect persons or property’ is not an
‘assault’ or ‘battery’ and thus falls within the scope of coverage.” Appellees’ Br. p. 17.
This argument would require us to write the exception to the Expected or Intended
Injury Exclusion into the Assault and Battery Exclusion, and we decline to do so. Our
supreme court recognized “that each exclusion is meant to be read with the insuring
agreement, independently of every other exclusion. If any one exclusion applies there
should be no coverage, regardless of the inferences that might be argued on the basis of
exceptions or qualifications contained in other exclusions.” Indiana Ins. Co. v. DeZutti,
408 N.E.2d 1275, 1278 (Ind. 1980) (citing Weedo v. Stone-E-Brick, Inc., 405 A.2d 788,
795 (N.J. 1979)). The Assault and Battery Exclusion does not include an exception for
the protection of persons or property, and we decline to write the exception to the
Expected or Intended Injury Exclusion into the Assault and Battery Exclusion.3
3
Even if we were to conclude that the Assault and Battery Exclusion excepted “‘bodily injury’ resulting
from the use of reasonable force to protect persons or property[,]” we do not believe this exception is
7
To the extent the Plaintiffs argue that Aponte’s and Odonovich’s actions do not
fall within the Assault and Battery Exclusion’s meaning of “battery” because they were
justified, we are not persuaded. Although the policy does not define “battery,” in
interpreting an assault and battery exclusion of a policy that did not define battery, we
have defined battery as “‘the act of battering, beating, or pounding . . . [the] illegal
beating or touching of another person.’” Smock v. American Equity Ins. Co., 748 N.E.2d
432, 435 (Ind. Ct. App. 2001) (quoting Webster’s New World Dictionary 118 (3rd college
ed. 1988)) (alteration in original), trans. denied.
The Plaintiffs seem to suggest that Aponte’s and Odonovich’s actions did not
constitute as batteries because they were privileged—undertaken with authorization or
justification. See, e.g., City of South Bend v. Fleming, 397 N.E.2d 1075, 1077 (Ind. Ct.
App. 1979) (“A police officer in the lawful discharge of his duties is privileged to use
only that force which is reasonable and necessary to effect an arrest. . . . If he uses
unnecessary force his conduct is no longer privileged and he is answerable for an assault
and battery.”); Ind. Code § 35-41-3-2(c) (“A person is justified in using reasonable force
against any other person to protect the person or a third person from what the person
reasonably believes to be the imminent use of unlawful force.”). According to the trial
court’s findings, Aponte struck Buckler in the head with a bottle as Buckler backed away
from another patron with his hands in the air after accidently bumping into the patron and
applicable to these facts. Regardless of the fact that Aponte was “apparently acting in defense” of another
patron, Buckler was backing away from the other patron with his hands in the air after accidently
bumping into her when Aponte struck him in the head with a bottle. App. p. 63. Aponte’s use of force
was not reasonable. Further, Nagy was struck on the head when he followed Aponte and Odonovich
outside The Copper Penny. Because Aponte and Odonovich were leaving, we are not convinced that
Nagy’s injuries were the result of Nagy protecting Buckler.
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causing her to spill her drink. Nagy was struck on the head with an object when he
followed Aponte and Odonovich outside the bar to try to determine what had taken place.
Although Aponte was “apparently acting in defense” of another patron when he
struck Buckler and Nagy was injured when he tried to investigate the incident, nothing in
the trial court’s order suggests that the striking of Buckler and Nagy was justified. App.
p. 63. As Alea points out, if the force used against Nagy and Buckler had been justified,
there would have been no underlying liability on the part of the assailants. We fail to see
how these facts, which gave rise to Aponte’s and The Coppery Penny’s liability in the
first place, support the Plaintiffs’ theory that the striking was justified and not within the
meaning of the term “battery” under the Assault and Battery Exclusion. Because
Aponte’s and Odonovich’s actions were batteries, the Assault and Battery Exclusion
applies, and there is no coverage under the Policy for the Plaintiffs’ claims.4 Thus, the
trial court should have granted Alea’s motion for summary judgment and denied the
Plaintiffs’ motion for summary judgment.
Conclusion
Because the Policy’s Assault and Battery Exclusion applies and precludes
coverage for the Plaintiffs’ claims, the trial court improperly granted the Plaintiffs’
motion for summary judgment and improperly denied Alea’s motion for summary
judgment. We reverse and remand for the entry of summary judgment in favor of Alea.
4
Because we conclude that subsection A of the Assault and Battery Exclusion applies and excludes
coverage for the Plaintiffs’ claims, we need not address the parties’ arguments regarding subsection C.
9
Reversed and remanded.
FRIEDLANDER, J., and MAY, J., concur.
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