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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
ESSEX INSURANCE COMPANY, INC.,
GOOD DRINKS, LLC d/b/a
GROWLERS ON HIGHWAY, MYRON
CHAPMAN, DAVID PETERSEN,
GEORGE PETERSEN, BOBBY BERNA,
ANTHONY CHARLES MONALDI,
AND MATTHEW MERRY,
) Cause No. 2:12-CV-011-JD
OPINION AND ORDER
Now before the Court is Plaintiff Essex Insurance Company’s Motion for Summary
Judgment [DE 15-17] against Defendants Good Drinks, LLC; Myron Chapman; David Petersen;
George Petersen; Bobby Berna; Anthony Monaldi; and Matthew Merry (collectively
“Defendants”). Defendant Matthew Merry (“Merry”) [DE 18-20] and the remaining defendants
(“Good Drinks Defendants”) [DE 21-22] responded, and Plaintiff replied [DE 23]. For the
reasons set forth below, the Court grants the Plaintiff’s Motion for Summary Judgment.
Defendant Good Drinks, LLC (“Good Drinks”) entered into a twelve month commercial
insurance liability agreement (“Policy”) with Plaintiff Essex Insurance Company, Inc. (“Essex”)
that began on May 12, 2010 [DE 1-1]. The Policy specifically excluded coverage for:
‘bodily injury,’ . . . or any injury, loss, or damage arising out of: . . . [a]ssault
and/or [b]attery, or out of any act or omission in connection with the prevention
or suppression of such acts, whether caused by or at the instigation or direction of
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any Insured, Insured’s employees, patrons or any other person. Nor does this
insurance apply with respect to any charges or allegations of negligent hiring,
training, placement or supervision.
[DE 1-1 at 13].
On October 6, 2011, Merry filed a complaint in state court alleging he was assaulted and
battered at Growler’s on February 27, 2011 by Defendants Anthony Monaldi and Bobby Berna
[DE 1-6; DE 17-2]. In Merry’s complaint, he alleged that Good Drinks, LLC, doing business as
Growler’s, is owned by Defendants Myron Chapman, David Peterson, and George Peterson. At
the time, both Monaldi and Berna were employed as bouncers for Good Drinks at Growler’s [DE
22 at 3, 5]. Merry not only claimed that Monaldi and Berna committed an assault and battery
upon Merry, but that Monaldi and Berna were negligent in dealing with Merry, and in turn,
Good Drinks and its owners were vicariously liable for its employees’ negligence, assault and
battery [DE 1-6; DE 17-2]. Merry additionally complained Good Drinks negligently hired,
employed, supervised, and retained Monaldi and Berna. Id.
The uncontested facts indicate on February 27, 2011, after drinking approximately eight
beers, Merry visited Growler’s and danced with two girls he did not know [DE 17-4 at 3]. A
male patron named Cory (the brother to one of the girls) approached Merry after the song ended
and told Merry not to dance with his little sister because she was married. Id.
As Cory and Merry were talking with one another, they each had placed a hand over the
other’s neck to facilitate conversation. Id. Merry testified in his deposition that it was necessary
to “mouth-to-ear” talk because it was so loud and crowded [DE 17-4 at 3-4]. Next thing Merry
knew, he was on his back being pulled to the ground, and once Merry let go of the bouncer’s
wrist (which Merry held to prevent the bouncer from punching Merry) the bouncer had Merry’s
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shirt and another grabbed Merry’s pants and carried him to the door and “threw [him] out on the
sidewalk.” Id. Merry admitted that things were escalated between he and Cory, and while there
was no kind of physical altercation he believed that the “neck holding between the two of [them]
is what brought the bouncers” over. Id. at 4. Merry affirmed he did not give consent for the
bouncers to touch him and he is “100%” certain his leg was broken during the encounter with the
bouncers while inside Growler’s—but he did not know what actually caused the injury (whether
the bouncers or someone or something else) [DE 17-4 at 4, 6-7; DE 20 at 8; DE 22 at 8].
Berna admits in his affidavit that he approached Merry to break up what he believed was
an altercation between Merry and Cory [DE 22 at 3-4]. Monaldi similarly admits that he then
intervened in what appeared to be a physical altercation between Merry and Berna [DE 22 at 5-
6]. During the bouncers’ encounter with Merry, Berna admits he shoved Merry, but claims he
did so in self-defense. Id. And Merry admits he was combative, or resisted the bouncer by
holding his wrists [DE 20 at 11]. Berna also admits he picked Merry up by his pants, while
Monaldi held Merry’s upper half and they carried Merry out of Growler’s [DE 22 at 3-6].
Monaldi similarly concedes he assisted Berna in carrying Merry out of the bar. Id. Berna and
Monaldi deny they battered or assaulted Merry, and claim they did not intend or expect Merry
would be injured. Id.
II. STANDARD OF REVIEW
On summary judgment, the burden is on the moving party to demonstrate that there “is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). That means that the Court must construe all facts in the light most
favorable to the nonmoving party, making every legitimate inference and resolving every doubt
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in its favor. Kerri v. Bd. Of Trustees of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006). A
“material” fact is one identified by the substantive law as affecting the outcome of the suit.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” exists with
respect to any such material fact, and summary judgment is therefore inappropriate, when “the
evidence is such that a reasonable jury could return a verdict for the non-moving party.” Id. On
the other hand, where a factual record taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing Bank of Ariz. v. Cities Servs. Co., 391 U.S.
253, 289 (1968)).
In determining whether a genuine issue of material fact exists, this Court must construe
all facts in the light most favorable to the non-moving party, as well as draw all reasonable and
justifiable inferences in that party’s favor. King v. Preferred Technical Grp., 166 F.3d 887, 890
(7th Cir. 1999). However, the non-moving party cannot simply rest on the allegations or denials
contained in its pleadings, but must present sufficient evidence to show the existence of each
element of its case on which it will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986); Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000).
Essex has sought a declaratory judgment from this Court to determine whether it must
defend Good Drinks, its owners and bouncers against Merry’s underlying suit. The parties do
not raise a choice of law issue (and in fact rely on Indiana law in their briefs) and therefore the
Court applies federal procedural law and Indiana state substantive law. Erie R. Co. v. Tompkins,
304 U.S. 64, 78 (1938); Best Craft, LLC v. St. Paul Fire and Marine Ins. Co., 611 F.3d 339, 345
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(7th Cir. 2010) (applying the law of the forum state because no party raised a choice of law
issue) (citing Casio, Inc. v. S.M. & R. Co., 755 F.2d 528, 531 (7th Cir. 1985); Lloyd v. Loeffler,
694 F.2d 489, 495 (7th Cir. 1982) (same)). Contract interpretation is a substantive issue, Bourke
v. Dun & Bradstreet Corp., 159 F.3d 1032, 1036 (7th Cir. 1998); thus, Indiana state law applies
to the issues presented in this case.
In Indiana, insurance policies are governed by the same rules of construction as other
contracts, and their interpretation is a question of law. Bradshaw v. Chandler, 916 N.E.2d 163,
166 (Ind. 2009). When interpreting an insurance policy, the court looks at the terms from the
perspective of an ordinary policyholder of average intelligence, id., with the goal of ascertaining
and enforcing the parties’ intent as manifested in the insurance contract. Buckeye State Mut. Ins.
Co. v. Carfield, 914 N.E.2d 315, 318 (Ind. Ct. App. 2009). If insurance policy language is clear
and unambiguous, it should be given its plain and ordinary meaning. Bradshaw, 916 N.E.2d at
166. Where an ambiguity exists, that is, where reasonably intelligent people may interpret the
policy’s language differently, the court construes insurance policies strictly against the insurer.
Id. The court may not extend insurance coverage beyond that provided in the contract, nor may
the court rewrite the clear and unambiguous language of the insurance contract. Am. States Ins.
v. Adair Indus., 576 N.E.2d 1272, 1273 (Ind. Ct. App. 1991).
The nature of the claim rather than the merit of the claim determines the insurance
provider’s duty to defend. Trisler v. Ind. Ins. Co., 575 N.E.2d 1021, 1023 (Ind. Ct. App. 1991).
Therefore the duty to defend is broader than the duty to indemnify. Id. And as noted by the
parties [DE 16 at 6-7; DE 18 at 2-3], the allegations of the claim and the facts known or
ascertainable by investigation determine the scope of the duty to defend. See Ind. Farmers Mut.
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Ins. Co. v. Ellison, 679 N.E.2d 1378, 1381-82 (Ind. Ct. App. 1997). “[I]f the pleadings fail to
disclose a claim within the coverage limits or one clearly excluded under the policy, and
investigation also reveals the claim is outside the coverage of the policy, no defense is required.”
See id. at 1382; see also, Ind. Farmers Mut. Ins. Co. v. North Vernon Drop Forge, Inc., 917
N.E.2d 1258, 1269 (Ind. Ct. App. 2009) (citing Auto–Owners Ins. Co. v. Harvey, 842 N.E.2d
1279, 1291 (Ind. 2006) for the proposition that the Indiana Supreme Court has more recently
entertained extrinsic, designated evidence when assessing an insurer’s duty to defend).
The case essentially comes down to one question: whether or not the Assault and/or
Battery (“A&B”) exclusion of the Policy applies. If it does, Essex owes no duty to defend. If it
does not, Essex retains a duty to defend. The fact that the case revolves around an exclusion
simplifies the placement of the burden of proof—it is well-settled that an insurer bears the
burden of proving that an exclusion applies. PSI Energy, Inc. v. Home Ins. Co., 801 N.E.2d 705,
725 (Ind. Ct. App. 2004) (“Generally, a coverage exclusion is an affirmative defense, proof of
which is the insurer’s burden”); Hoosier Ins. Co. v. Audiology Found. of Am., 745 N.E.2d 300,
309 (Ind. Ct. App. 2001); see also Home Fed. Sav. Bank v. Ticor Title Ins. Co., 695 F.3d 725,
732 (7th Cir. 2012) (applying Indiana law and determining that coverage exclusions are
construed strictly against the insurer who bears the burden of showing the exclusion applies).
Accordingly, the Court considers whether Essex has shown the absence of any genuine disputes
of material fact with respect to the application of the exclusion, and whether Essex has shown it
is entitled to judgment as a matter of law.
Defendants oppose the entry of summary judgment [DE 18 at 4-8; DE 21 at 5-7] and
dispute the application of the A&B exclusion. Defendants argue that Berna and Monaldi did not
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commit assault and battery and they did not intend to injure Merry. Defendants further believe
that a genuine issue of material fact exists relative to the actual cause of Merry’s broken leg.
The Court disagrees.
In this case, the language of the Policy clearly and unambiguously excludes injuries
arising out of assault and battery by stating that “‘bodily injury,’ . . . or any injury, loss, or
damage arising out of: . . . [a]ssault and/or [b]attery” is not covered under the Policy. Granted,
“assault” and “battery” are not terms which are defined in the policy, but not every word in a
contract must be defined. Sans v. Monticello Ins. Co., 676 N.E.2d 1099, 1101 (Ind. Ct. App.
1997). The clear meaning of assault and battery refers to an intentional touching or the
apprehension of such, and does not require an intent to injure. See Singh v. Lyday,889 N.E.2d
342, 360 (Ind. Ct. App. 2008) (“[o]ne is liable for the tort of battery if ‘(a) he acts intending to
cause a harmful or offensive contact with the person of the other or third person, or an imminent
apprehension of such contact, and (b) a harmful contact with the person of the other directly or
indirectly results.’”) (citing Mullins v. Parkview Hosp., Inc., 865 N.E.2d 608, 610 (Ind. 2007)
(quoting Restatement (Second) of Torts § 13 (1965))). And just as an intentional touching may
be a basis for a battery claim, it also may be a basis for an assault claim. Lessley v. City of
Madison, Ind., 654 F.Supp.2d 877, 914 (S.D. Ind. 2009) (Hamilton, J.) (citing Singh, 889 N.E.2d
at 360). There is no other reasonable interpretation of these contract terms. See e.g., Knight v.
Ind. Ins. Co., 871 N.E.2d 357, 362 (Ind. Ct. App. 2007) (“[a]n assault creates an apprehension of
imminent harmful or offensive contact, while battery is the intentional harmful or offensive
contact . . . [a] touching, however slight, may constitute an assault and battery”) (citation and
internal citation omitted); Smock v. American Equity Ins. Co., 748 N.E.2d 432, 436 (Ind. Ct.
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App. 2001) (“[t]he policy does not define [battery for purposes of the assault and battery
exclusion], but an English language dictionary provides that a ‘battery’ is ‘the act of battering,
beating, or pounding . . . [the] illegal beating or touching of another person’”) (citing Webster’s
New World Dictionary 118 (3rd college ed. 1988)); Merriam-Webster’s Collegiate Dictionary
73, 104 (11th ed. 2003) (defining battery as “an offensive touching or use of force on a person
without the person’s consent” and defining assault as “a threat or attempt to inflict offensive
physical contact or bodily harm on a person . . . that puts the person in immediate danger of or in
apprehension of such harm or contact.”). Notably, the parties do not argue that either of the
terms are ambiguous, nor do they present alternative interpretations for the terms “assault and
battery.” [DE 16 at 9; DE 18 at 3-4; DE 21 at 4-7; DE 23 at 2-7]. Rather, Defendants seemingly
argue disputed issues of material fact exist concerning whether an assault and battery occurred
during the encounter inside Growler’s.
To the extent Berna and Monaldi draw the unsupported legal conclusion in their
affidavits that they did not assault and batter Merry, their undisputed actions belie such an
assertion. Here, the designated evidence shows that by their own admissions Berna “shoved”
“picked up” and “grabbed” Merry who resisted, while Monaldi “picked up” and “carried” Merry
out of the bar. And Merry’s own admissions establish that he physically resisted by grabbing one
of the bouncer’s wrists to prevent the bouncer from punching Merry. No reasonable trier of fact
could draw the inference that the acts committed during the physical altercation were accidental,
welcomed, or unoffensive. What Berna did was a battery, what Monaldi did was a battery, and
what Merry did was a battery.1 Moreover, the facts of this case are readily distinguished from
1And any claim of self-defense does not purge an act of its intended nature, instead, it is a justification for
intended action. Home Ins. Co. v. Neilsen, 332 N.E.2d 240, 244 (Ind. Ct. App. 1975).
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cases involving material disputes over whether the intent to apply the force constituting battery
is established. See Sans, 676 N.E.2d at 1104 (the court was not prepared to hold “as a matter of
law” that the gun could not have been fired accidentally, and therefore it was genuinely disputed
whether the shooting of the gun was intentional, and as a result, whether the shooting constituted
an assault and battery); Franklin Gen. Ins. Co. v. Hamilton, 133 N.E.2d 93 (Ind. Ct. App. 1956)
(holding the evidence raised a question of fact as to whether injury was the result of an assault
and battery because the insured driver did not see the victim near the car before backing up and
the driver tried to stop as soon as he saw the victim). Therefore, unlike the possible accidental
touching involved in Sans and Franklin, the Defendants’ own uncontroverted admissions,
although each somewhat unique, establish they committed assault and battery because the
touchings were intended.2
Essex and the Defendants further disagree about the appropriate intent element required
of an assault and battery: Defendants argue Essex has not provided evidence which leads to the
sole and only conclusion that the conduct of Berna and Monaldi showed they had the requisite
intent to injure Merry; whereas, Essex argues that the only reasonable inference that need be
drawn from the evidence establishes the bouncers’ intent to apply the force constituting battery
and therefore Essex is entitled to judgment as a matter of law.
Defendants rely on Sans v. Monticello Ins. Co., 676 N.E.2d 1099 (Ind. Ct. App. 1997)
wherein the insurance policy at issue covered “bodily injury . . . neither expected nor intended
from the standpoint of the insured” (“first clause”) and excluded coverage for “bodily injury . . .
2As discussed infra, the Policy also excludes coverage for bodily injury arising out of Berna, Monaldi,
and/or Merry’s “act[s] or omission[s] in connection with the prevention or suppression of such acts.” The
uncontested facts similarly establish the application of this exclusion.
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arising out of assault & battery or out of any act or omission in connection with the prevention or
suppression of such acts” (“second clause”). Sans v. Monticello Ins. Co., 718 N.E.2d 814, 817 n.
6, 7 (Ind. Ct. App. 1999). Clearly, the A&B exclusion at issue in this case, is akin to the second
clause involved in Sans. However, Defendants mistakenly rely on the first clause of Sans which
concerns an “expected or intended” injury, and thus argue that the bouncers must have intended
to injure Merry in order for coverage to be denied. Sans, 676 N.E.2d at 1102-04 (“We have
analyzed Indiana law with respect to standard ‘intended or expected’ exclusionary clauses . . .”).
Not only did Sans analyze “intended or expected” exclusionary clauses, but it relied on cases
that involved the same type of clause. See id. (quoting Stevenson v. Hamilton Mutual Ins. Co.,
672 N.E.2d 467, 470-72 (Ind. Ct. App. 1996) (involving a standard policy exclusion for
intentional or expected conduct)). In turn, the court in Stevenson relied on Trisler v. Ind. Ins.
Co., 575 N.E.2d 1021 (Ind. Ct. App. 1991) which explicitly discussed Indiana’s analysis of
standard “intended or expected” exclusionary clauses. And similar to the first clause of Sans,
Trisler involved an insurance policy which provided coverage for “an accident . . . which results
in personal injury . . . neither expected nor intended from the standpoint of the insured,” and
excluded coverage for acts committed by Trisler “with intent to cause personal injury.” Trisler,
575 N.E.2d at 1023-24. Thus, while it is clear that “intended or expected” clauses requires an
intent to injure, the same clause is not at issue in this case.
The distinction between bodily injury “caused intentionally” versus contracts which
expressly exclude damages resulting from an assault and battery was similarly addressed in
Home Ins. Co. v. Neilsen, 332 N.E.2d 240 (Ind. Ct. App. 1975). In Neilsen, the Court noted that
the contract did not expressly exclude damages from an assault and battery, “[i]nstead, it speaks
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of injuries caused intentionally.” Id. at 243. The Court determined that the exclusion for “bodily
injury . . . caused intentionally” was ambiguous, and therefore the policy was construed against
the insurer to exclude coverage for “an intentional act with was intended to cause injury.” Id. at
244. However, even employing an interpretation favoring the insured, the court still held that
insurance coverage was properly excluded where the insured had admitted that he had
intentionally struck the other man although he had not intended to cause injury. Id. at 243-44.
The Indiana Court of Appeals reasoned that the insured could not avoid the inference of intent to
harm that necessarily follows the deliberate blow to the victim’s face. Id. at 451; but see, State
Farm Fire & Casualty Co., 858 F.Supp.2d 971 (N.D. Ind. 2012) (Miller, J.) (holding that a
genuine issue of material fact existed as to whether the insured’s son intended to cause harm,
although he admittedly intentionally struck another minor, because the policy only excluded
coverage for “bodily injury . . . which is either expected or intended by the insured”).
All of this is to say, that unlike the first clause of Sans, the Essex A&B exclusion does
not contain an “intentional or expected injury” clause, rather it clearly excludes coverage for
injuries arising out of an assault or battery. Given this, the holding of Smock v. American Equity
Ins. Co., 748 N.E.2d 432, 435 (Ind. Ct. App. 2001) supports the conclusion that Essex’s A&B
exclusion applies making summary judgment appropriate. In Smock, the Strawn’s (parents of
their deceased son Michael), sued KTK (owner and operator of Body Shop Showclub), the
club’s bouncer Ronald Smock, and Steven Toscano (a friend of Michael’s) for negligently
causing Michael’s death and negligently hiring and training Smock. 748 N.E.2d at 434. The
lawsuit was based on an incident wherein Michael was patronizing the club when he became
belligerent after consuming alcohol and marijuana, and was removed from the club by Smock.
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Id. at 433. Toscano attempted to take Michael home, but Michael resisted by striking Toscano.
Id. At one point, Toscano placed his hand on Michael’s neck. Id. Smock then intervened by
placing Michael in a “sleeper hold” rendering Michael unconscious. Id. Ultimately, Michael
was later found dead due to asphyxiation from manual strangulation, but it could not be
determined whether death resulted from the “sleeper hold” or from compression by a broader
surface, such as a forearm or foot. Id. at 433-34.
The Smock Court specifically analyzed whether the conduct alleged was excluded from
coverage by the policy which barred coverage for bodily injury:
(1) Expected or intended from the standpoint of any insured; or
(2) Arising out of an assault or battery, provoked or unprovoked, or out of any act or
omission in connection with prevention or suppression of an assault or battery,
committed by any Insured or an employee or agent of the insured.
748 N.E.2d at 435. The Court noted that even though “[t]he parties vehemently disagree[d] as to
whether Smock intended to inflict injury and, thus, whether the ‘expected or intended’ part of the
exclusion applies,” it need not decide the issue because the case was readily decided on the
second clause of the policy relating to batteries. Id. at 435 n. 5. Concluding that what Smock did
was a battery, what Toscano did was a battery, and what Michael did was a battery, the Court
determined that under the exclusion, there is no coverage if bodily injury arose out of an
employee’s battery. Id. at 435. And although it was uncertain whether Smock’s act of placing a
“sleeper hold” on Michael’s neck actually caused Michael’s death, the Court held that to the
extent the underlying wrongful death complaint asserts that KTK and Smock are liable for
Smock’s battery, the claims are excluded under the assault and battery provision. Id.
Relevant to Merry’s negligence claims, the Court further determined that the assault and
battery clause excluded any claim for negligence relating to Smock’s failure to prevent or
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suppress batteries committed by third parties. Smock, 748 N.E.2d at 436. Thus, a “necessary
corollary is that the exclusion also applies to KTK under the theory of respondeat superior.”
Smock, 748 N.E.2d at 436. Going one step further, even though the policy did not expressly
exempt from coverage the claim against KTK for negligent hiring, supervision, and training of
Smock, the Court explained that the exclusion expressly applied to bodily injury arising out of an
employer’s acts or omissions relating to prevention or suppression of a battery, and therefore
even if the batteries were the result of KTK’s own negligence the exclusion applied. Id.
As in Smock, Essex’s A&B exclusion prevents coverage for: “‘bodily injury,’ . . . or any
injury, loss, or damage arising out of: . . . [a]ssault and/or [b]attery, or out of any act or omission
in connection with the prevention or suppression of such acts.” However, Essex’s policy is more
broad in two respects: it explicitly excludes coverage for the same whether “caused by or at the
instigation or direction of any Insured, Insured’s employees, patrons or any other person”; and, it
explicitly precludes coverage “with respect to any charges or allegations of negligent hiring,
training, placement or supervision.”
In this case, Merry has admitted that he is absolutely certain his injuries occurred during
the encounter with the bouncers while inside Growlers, even though he is uncertain as to what
actually caused his broken leg.3 Additionally, it is uncontested that just prior to the altercation
between Merry and the bouncers, things were escalated between Merry and Cory who had a hold
of each others’ necks (although Merry suggests it was simply to facilitate their communication in
loud surroundings) and Berna believed these patrons were engaged in a “physical altercation.”
3Merry argues another patron or employee may have stepped on his leg or the loud noise and crowd
contributed to his injury by limiting communication thereby causing the altercation. But the actual cause of Merry’s
injury matters not since the injuries undisputedly arose out of an assault and battery (or even prevention thereof)
during the encounter with the bouncers. See Smock, 748 N.E.2d at 435.
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Thereafter, Monaldi intervened believing Merry and Berna were fighting. Even Merry admitted
that the bouncers likely came over because of the “neck holding” and that he physically resisted
the bouncers to prevent one of the bouncers from hitting him. Thus, the A&B exclusion prevents
coverage for Merry’s bodily injury which arose not only from the assault and battery, but out of
Berna, Monaldi, and Merry’s acts or omissions in connection with the prevention or suppression
As in Smock, Merry’s bodily injuries arose out of Berna and Monaldi’s battery of Merry,
out of their acts or omissions in connection with the prevention or suppression of batteries by
others (like Coy or Merry), out of Merry’s prevention or suppression of a battery, and/or out of
the Good Drinks, LLC and its owners’ acts or omissions relating to any said battery (including
the possibility that the bar was too crowded and that one of the patrons caused the injury or the
music too loud—as Defendants contend). There simply is no basis for the argument that Merry’s
state court claims did not arise out of an assault and battery occurring inside Growler’s, even if
the actual cause of Merry’s broken leg is unknown—because it is undisputed that the injury
occurred during that incident. Consequently, the A&B exclusion clearly and unambiguously
precludes coverage for the claims raised in Merry’s underlying state court action because the
claims were brought for injuries that arose from the assault and battery incident at Growler’s.
Since there is no genuine issue of material fact that the Policy clearly excludes the
conduct complained of in Merry’s state court complaint, Essex is entitled to judgment as a matter
of law. It is for the state court in the underlying case to determine the merit of Merry’s claims
and the liability, if any, of the Defendants. In the Seventh Circuit, an insurance company
ordinarily cannot obtain declaratory judgment regarding its duty to indemnify before its insured
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is found liable. Lear Corp. v. Johnson Elec. Holdings, Ltd, 353 F.3d 580, 583 (7th Cir. 2003).
Indeed, “the duty to indemnify is not ripe for adjudication until the insured is in fact held liable
in the underlying suit.” Nationwide Ins. v. Zavalis, 52 F.3d 689, 693 (7th Cir. 1995). When a
party seeks a declaratory judgment on an unripe duty-to-indemnify claim, it is proper for the
Court “to dismiss that aspect of the case[.]” Med. Assur. Co. v. Hellman, 610 F.3d 371, 375 (7th
Cir. 2010). Therefore, the Court finds that any declaratory judgment concerning Essex’s duty to
indemnify issued prior to the establishment of liability would be an improper exercise of its
authority, and would amount to an adjudication of a dispute that is not ripe.
For the foregoing reasons, the Court GRANTS the Plaintiff’s Motion for Summary
Judgment, and judgment shall be entered in favor of Plaintiff Essex Insurance Company, Inc.
declaring that Essex has no duty under the Policy to defend against any of Merry’s claims
alleged in his state court complaint filed in Lake County, 45D03-1110-CT-0195. Any claim
relative to Essex’s duty to indemnify is DISMISSED WITHOUT PREJUDICE.
ENTERED: June 4, 2013
/s/ JON E. DEGUILIO
United States District Court