The Missouri Appellate Court recently handed down an excellent decision upholding the assault and battery exclusion and rejected the attempt by the plaintiff to avoid the exclusion by contending that there were separate and non-excluded causes of the injury invoking the concurrent proximate cause doctrine in Missouri.
This appeal arises out of Kristy Richards’ (Richards) equitable garnishment action and petition for declaratory judgment filed against The Bunkhouse Bar & Gril, LLC (the Bunkhouse) and the Cincinnati Specialty Underwriters Insurance Company (Cincinnati). Richards sought recovery from Cincinnati of the full $405,000 judgment awarded to her for a bodily injury against Cincinnati’s insureds in an underlying lawsuit alleging common law negligence on the part of the Bunkhouse and battery against R.J., the Bunkhouse’s owner (Owner). Richards had alleged that Owner and other women attacked her, causing her injuries. Cincinnati filed a crossclaim and counterclaim for declaratory judgment, seeking a judgment that Richards’ recovery was limited by a $25,000 policy sublimit and that Cincinnati had fully satisfied its obligation under its policy.
The incident occurred during an altercation between the owner of Bunkhouse and Richards when Richards attempted to swing her fist at the owner, missing and the owner connected with a punch to the face of Richards. After the punch in the face, a group of customers dragged Richards to the ground and beat her by ripping her hair, beating her and punching the back of her head. The owner claimed at trial that she acted in self-defense and the jury agreed with her and found the issues in her favor. However, the jury found against Bunkhouse on a general negligence cause of action finding that Bunkhouse failed to have proper security when it knew or should have known that the patrons of Bunkhouse were rowdy and had vicious tendencies. There was an assault and battery exclusion in the body of the CGL policy issued by Cincinnati to Bunkhouse and an endorsement added to the CGL that provided a sublimit for assault and battery of $25,000.
The Appellate Court found in favor of Cincinnati, concluding that Richards’ recovery from Cincinnati was limited by the $25,000 sublimit in the insurance policy, since the basis for the jury verdict flowed from an assault and battery and that was excluded in the policy, but the endorsement provided the sublimit and therefore Richards was only entitled to the $25,000.
In two points on appeal, Richards argues that the trial court erred in concluding that the insurance policy’s assault and battery exclusion was ambiguous as applied to these facts and secondarily even if not ambiguous the failure to provide proper security to keep the patrons under control was a concurrent causation cause and therefore the exclusion did not apply and the sublimit was not applicable.
The court ruled that Richards’ injuries upon which the judgment was based arose from an assault and battery and there was no ambiguity in the terms of the insurance policy, and its language is clear. The concurrent proximate cause doctrine does not apply to provide coverage. The Bunkhouse’s negligence, as found by the jury, was not a separate and non-excluded cause apart from the assault and battery. Richards’ assault and battery were one of a narrow range of foreseeable harms resulting from the Bunkhouse’s negligence as submitted to and found by the jury even though it was couched in terms of general negligence for failing to warn customers of the bar that there are other patrons in the bar that had vicious tendencies leading to the injury of Richards.
This decision continues the tendency of the Appellate Courts to walk back the utilization of the current causation theories to avoid assault and battery exclusions in Missouri and is a welcome development for insurance carriers that do business in Missouri. Richards vs The Bunkhouse Gar & Grill and Cincinnati Insurance Co. Missouri Court of Appeals Western District (WD 87349, May 27, 2025)