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Insurer’s exclusion stands after bar fight

September 11, 2013

A woman’s own description of a barroom brawl that left her with a broken arm was used against her in allowing an insurance company to deny coverage.

Kari Everhart was standing at the bar of Club Coyote in west Terre Haute when a patron was shoved and fell onto her. When she tried to catch herself, she broke her arm in several places.  

Club Coyote had liability coverage for bodily injury and property damage with Founders Insurance Co. However, the policy included an exclusion for bodily injury caused by assault and /or battery.

After Everhart filed a complaint for damages, Founders pointed to this exclusion and asserted it had no duty to defend or indemnify either party. The insurance company argued Everhart’s admissions show her injury was the result of battery.

In her interrogatory, Everhart said the incident began when the bartender grabbed the patron and bounced his head off the bar about three or four times before shoving him into a small crowd. The patron was shoved again and fell violently, grabbing Everhart and causing her to fall.

Everhart disputed Founders’ reasoning, maintaining the exclusion covers intentional acts. She argued she never contended any employee or patron of the bar did anything intentionally.

The Indiana Court of Appeals affirmed the trial court’s grant of summary judgment in favor of Founders in Kari Everhart v. Founders Insurance Company, 84A01-1303-PL-128.

The COA found Everhart’s description fits the definition of battery as set forth in Singh v. Lyday, 8890 N.E.2d 342 (Ind. Ct. App. 2008). It also pointed out there is not dispute that the patron was intentionally pushed and that Everhart suffered injuries as a result which makes her the victim of battery.


 

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