Assault and Battery Exclusions have long been written into commercial liability policies by endorsement. Excluding these types of losses at least theoretically reduces premium payments by constricting the potential covered risks, especially for insureds in the bar and restaurant industry.
Over time, the terms of the A&B exclusions have expanded exponentially with the definitions of battery to include negligent conduct resulting in harm. Such broad definitions could lead to unintended consequences with the vast majority of risks being excluded regardless of any intent on the part of the tortfeasor to injure a claimant. The District of Connecticut recently encountered such a situation when it limited the applicability of an Assault and Battery Exclusion in determining the carrier’s duty to defend.
Salgado v. United States Liability Insurance Company
2025 WL 27777205 (D. Conn. Sept. 29, 2025)
Background
On May 4, 2019, Yahaira Salgado was seriously injured at a Cinco de Mayo celebration organized by Rodrigo Rodriguez, David Meza and Abimael Torillo (“Organizers”). Salgado’s injuries were caused by an alleged accidental discharge of an antique black powder firearm by Max Sanchez.
Apparently, Salgado was not struck by a bullet from the antique firearm. Instead, he claimed to have suffered injuries due to burns and disfigurement from the gunpowder that was discharged from Sanchez’s antique firearm.
USLIC’s Coverage
Prior to Salgado’s injuries, USLIC had issued a Special Event Commercial Liability Policy to the Organizers with Rodriguez being identified as the named insured. The policy was meant to provide coverage for the Cinco de Mayo celebration. As is now typical, the policy contained an endorsement titled “Assault or Battery Exclusion” which provided:
This insurance does not apply to:
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”, including the use of reasonable force to protect persons or property, 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...
This exclusion supersedes any provision in the attached policy that provides coverage for “bodily injury” arising out of, directly or indirectly resulting from, in consequence of, or in any way involving the use of reasonable force to protect person(s) or property.
“Assault” means the threat of, or use of force on another that causes that person to have apprehension of imminent harmful or offensive conduct, whether or not the threat or use of force is alleged to be negligent, intentional or criminal in nature.
“Battery” means negligent or intentional physical contact with another without consent that results in physical or emotional injury.
Underlying Lawsuit and USLIC’s Denial of Coverage
A few months after his injuries, Salgado filed a lawsuit naming the Organizers and Sanchez as defendants. Salgado’s petition alleged that Sanchez was negligent in holding his firearm, failed to maintain a proper lookout for other people in his vicinity, failed to warn others that the antique firearm was loaded with black powder that could cause injury and negligently discharged his antique firearm within close range of Salgado. Salgado also alleged the Organizers were negligent in failing to warn attendees of the presence of antique firearms and their danger and in allowing antique firearms to be present at the celebration. Importantly, there were no allegations that Sanchez or the organizers intentionally discharged the antique firearm with the intent to injure anyone or that any of them made actual contact with Salgado.
USLIC was informed of Salgado’s claims and the Underlying Lawsuit. USLIC declined coverage and refused to provide a defense to the Organizers claiming that the Assault or Battery Endorsement was implicated and precluded coverage.
Ultimately, a judgment was entered in the Underlying Lawsuit in favor of Salgado in the amount of $1,582,131.35.
Coverage Lawsuit
After judgment was rendered, , Salgado filed claims against USLIC in an effort to collect on his judgment under Connecticut’s direct-action statute. Salgado claimed that USLIC had breached its duty to defend the Organizers and was therefore liable for the entirety of the judgment entered in the Underlying Lawsuit under Connecticut law.
USLIC answered and took the position that the Assault or Battery Exclusion (and other exclusions) precluded coverage. USLIC argued that the complaint in the Underlying Lawsuit alleged that Salgado was struck by Black Powder because of Sanchez’s negligence and thus the Assault or Battery Exclusion precluded coverage. Salgado countered by arguing the Assault or Battery Exclusion was ambiguous as the definition of battery could be read to apply only when there was body to body conduct between a tortfeasor and the claimant. Additionally, Salgado argued the Assault or Battery Exclusion could not be read to include unintended injuries caused by negligence.
Both USLIC and Salgado moved for summary judgment.
Summary Judgment Ruling
At the summary judgment stage, the Court noted that it was solely tasked with determining whether USLIC had a duty to defend the Organizers in the Underlying Lawsuit. The Court described its task as determining whether there was any possibility of coverage based on the allegations contained in the complaint in the Underlying Lawsuit.
The Court determined that the exclusion did not clearly preclude coverage for the allegations in the Underlying Lawsuit. In reviewing the terms of the exclusion, the Court determined that the language was ambiguous as applied to Salgado’s claims. A reasonable reading could require some body-to-body contact or that the tortfeasor had some intention to set in motion an object, substance or body part that ultimately caused injury to the claimant.
Salgado’s claims in the Underlying Lawsuit contained no allegations that Sanchez contacted Salgado with his body or with any object he was holding. Moreover, there were no allegations that Sanchez intended to discharge the antique firearm or intended (or reasonably expected) any injury to Salgado. Because of this, the Court determined that USLIC had breached its duty to defend the Organizers in the Underlying Lawsuit.
Admittedly, there may be more to the circumstances leading to Salgado’s injuries than are contained in the Court’s decision and the Court indicates as much in its opinion. However, the Court determined that only the allegations contained in the complaint filed in the Underlying Lawsuit and the language of the exclusion should be compared when deciding USLIC’s duty to defend. When the jurisdiction follows the Four/Eight Corner rule, careful pleading and the omission of intentional allegations can aid a claimant and insured in securing coverage or at least in arguing a broadly written exclusion is ambiguous when applied to the facts of the loss.
Need Assistance with a Bad Faith Situation?
Kirk Presley enjoys helping individuals and other lawyers with bad faith cases.
If you would like to speak with him about a bad faith case email him at [email protected] or call him at (816) 931-4611.