A company that insured a westside Indianapolis strip club has no coverage duty for a patron who was shot in the face after an altercation outside the club three years ago, a federal judge has ruled.
Andre Holt was shot at point blank range by another patron of the Sunset Strip nightclub in the 2300 block of West 16th Street, but Holt survived the April 2012 shooting in the club’s parking lot. No charges were filed in the shooting, according to the Marion County prosecutor’s office.
In April 2014, Holt sued the nightclub in Marion Superior Court, alleging negligence and failure to provide adequate security. That case, Andre Holt v. Sunset Strip Inc., 49D01-1404-CT-13582, remains pending.
But Magistrate Judge Mark J. Dinsmore on Tuesday granted summary judgment in favor of the insurer, who sued Sunset Strip and Holt in the U.S. District Court for the Southern District of Indiana.
In his 31-page order in , 1:14-cv-01273, Dinsmore concluded that the clear and unambiguous terms of Sunset’s policy barred coverage for claims arising from assault and battery.
Dinsmore rejected Sunset’s arguments that it had a reasonable expectation that the club’s insurance policy would cover Holt’s claims, and that coverage exclusions in its policy were so restrictive as to make coverage illusory under Indiana law.
“(T)he Nautilus policy is not illusory, and any factual dispute about Sunset’s reasonable expectations is accordingly irrelevant,” Dinsmore wrote in granting Nautilus’ motion for summary judgment. Dinsmore also issued a declaratory judgment that Nautilus owed no coverage under its policy for any claims arising from Holt’s state court suit.
The parties disputed representations of insurance coverage. Sunset’s insurance agent, Chris Dant, and club owner, John Logan, agreed that the club had opted against liquor liability coverage despite a record showing the club derived about 93 percent of its revenue from alcohol sales.
“Mr. Dant also testified that Sunset decided to forgo ‘assault and battery’ coverage because this coverage was also considered too expensive,” Dinsmore wrote. “Mr. Logan, however, disagreed: he testified that he could not recall discussing ‘assault and battery coverage’ coverage with Mr. Dant,” and Logan believed he had purchased insurance with that coverage.
However, the policy clearly includes an assault and battery exclusion, Dinsmore wrote.
The state court suit that gave rise to the federal insurance claim alleges Holt suffered extreme physical pain and suffering after he was shot, that his activities were limited and that he has voluminous past medical bills and will have future expenses due to his injuries.
Holt claims in his suit against the club that employees of Sunset Strip witnessed the escalating altercation between Holt and the other man but did nothing. The club, in reply, acknowledges employees witnessed the altercation, but denies workers did nothing.
The suit claims Sunset Strip had a duty to take affirmative action to control the wrongful acts of third parties because the club “had reasonable cause to anticipate such acts and the high probability of injury resulting therefrom.”
Holt’s suit also alleges the club hired security, so it knew of the risks of wrongful acts, yet the club “negligently performed the duty of providing security and keeping its property reasonably safe for its customers. … Sunset Strip, Inc., owed invitee Andre Holt a duty of reasonable care, and failed in that duty.”
The club, in reply, denies Holt’s arguments and states affirmative defenses. No hearing dates have been set in the state court case.