An Insurance Policy’s “ Assault Or Battery ” Exclusion And The Meaning Of “ Physical Contact. ”

A nightclub dancer suffered severe injuries shortly after she completed her shift when a patron of the nightclub threw flammable liquid on her and then set her on fire. The man was convicted of aggravated mayhem and torture. In the underlying action, the woman sued her employer for inadequate security; it was resolved by a stipulated judgment in the amount of $10 million. While the underlying action was pending, the employer’s insurer brought another action, the instant one, for declaratory relief, alleging it had no duty under the policy to pay any damages. The insurer relies on the “Assault or Battery” exclusion in the liability policy issued to the employer. That endorsement excluded coverage for “all ‘bodily injury’ . . . arising out of ‘assault’ or ‘battery’ . . . including but not limited to ‘assault’ or ‘battery’ arising out of or caused in whole or in part by negligence . . . . [¶] ‘Battery’ means negligent or intentional wrongful physical contact with another without consent that results in physical or emotional injury.” The trial court granted summary judgment in favor of the insurer. In affirming, the appellate court rejected plaintiff’s argument that body-to-body contact was required and concluded a battery “includes a striking or touching as occurred in this case.” (Mount Vernon Fire Insurance Corporation v. Oxnard Hospitality Enterprise, Inc. (Cal. App. Second Dist., Div. 5; September 16, 2013) 219 Cal.App.4th 876.