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Barnies Bar & Grill, Inc. v. United States Liability Insurance Co.

Supreme Court of Maine

December 20, 2016

BARNIES BAR & GRILL, INC.
v.
UNITED STATES LIABILITY INSURANCE COMPANY

          Argued: November 9, 2016

         Reporter of Decisions

          Marc N. Frenette, Esq. (orally), Trafton, Matzen, Belleau & Frenette, LLP, Auburn, for appellant Barnie's Bar and Grill, Inc.

          Robert C. Hatch, Esq., and Hillary J. Bouchard, Esq. (orally), Thompson, Bowie & Hatch, LLC, Portland, for appellee United States Liability Insurance Company

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN. JABAR, HJELM, and HUMPHREY, JJ.

          GORMAN, J.

         [¶l] Barnie's Bar & Grill, Inc., appeals from the entry of a summary judgment in the Superior Court (Androscoggin County, MG Kennedy, J.) in favor of United States Liability Insurance Company ("USLIC") on a complaint by Barnie's Bar seeking declaratory relief and damages for a breach of contract. The Superior Court concluded that USLIC had no duty to defend Barnie's Bar in an underlying negligence action because policy exclusions for assault and battery applied. We affirm the judgment.

         I. BACKGROUND

         [¶2] The facts in this case are undisputed. On July 14, 2014, Maurice Beaulieu filed a civil lawsuit in the Superior Court seeking compensatory damages, interest, and costs from Barnie's Bar in Lewiston for its alleged negligence. In his complaint, Beaulieu alleged that he "was violently attacked by a group of [other] patrons" while he "was a customer, licensee and invitee" at the bar. He asserted that Barnie's Bar was liable for the attack for two reasons. First, Beaulieu contended that, although Barnie's Bar "had general and specific notice of the risk that an assault was imminent, " Barnie's Bar breached its duty of care to prevent or interfere with the assault by "failing to summons law enforcement and otherwise failing to interfere with the assault and battery." Second, Beaulieu claimed that Barnie's Bar breached its duty of care "not to create a dangerous circumstance on its premises" by "affirmatively ejecting" him and his assailants into the parking lot at the same time.

         [¶3] At all relevant times, Barnie's Bar held an insurance policy from USLIC that included both commercial general liability and liquor liability coverage. Both coverage portions, however, contained comprehensive exclusions for assault and battery. The commercial general liability coverage, in relevant part, excluded

Any claim, demand or "suit" based upon any actual or alleged "assault" or "battery", or out of any act or omission in connection with the prevention or suppression of any "assault" or "battery" ... whether caused by or at the instigation or direction of an insured, its "employees", agents, officers or directors, patrons or any other person. Further, no coverage is provided for any claim, demand or "suit" in which the underlying operative facts constitute "assault" or "battery".
This exclusion applies to all "bodily injury", "property damage" or "personal and advertising injury" sustained by any person, including emotional distress and mental anguish, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving "assault" or "battery" whether alleged, threatened or actual including but not limited to "assault" or "battery" arising out of or caused in whole or in part by negligence or other wrongdoing with respect to:
. . . .
b. investigation or reporting any "assault" or "battery" to the proper authorities; ...

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