SIERRA AUTO CENTER, INC. v. GRANADA INSURANCE COMPANY

S
      Third District Court of Appeal
                               State of Florida

                          Opinion filed April 7, 2021.
       Not final until disposition of timely filed motion for rehearing.

                            ________________

                             No. 3D19-2388
                       Lower Tribunal No. 18-17283
                          ________________


                   Sierra Auto Center, Inc., et al.,
                                 Appellants,

                                     vs.

               Granada Insurance Company, et al.,
                                 Appellees.



     An Appeal from the Circuit Court for Miami-Dade County, Pedro P.
Echarte, Jr., Judge.

     Wolfson Law Firm, LLP, and Jonah M. Wolfson, for appellants.

      Hinshaw & Culbertson LLP, James H. Wyman and Ronald L. Kammer,
for appellee, Granada Insurance Company.


Before FERNANDEZ, LINDSEY and GORDO, JJ.

     GORDO, J.
     Sierra Auto Center, Inc. and Sierra Auto Center Miami Beach, LLC

appeal a final summary judgment declaring that insurer, Granada Insurance

Company, had no duty to defend or indemnify Sierra in an underlying

negligence action arising out of an assault and battery that occurred on its

premises based on the policy’s express assault and battery exclusion. We

have jurisdiction. Fla. R. App. P. 9.110(a)(1). Finding no error in the trial

court’s determination that Granada had no legal duty to defend, we affirm.

     Jaime Bastos Tejada brought a negligence action against Sierra after

he was battered on Sierra’s business premises.        Tejada alleged Sierra

negligently failed to provide adequate security, failed to timely intervene,

failed to foresee and warn of the risk of assault created by the conditions of

the premises and failed to improve existing security measures. At the time

of the incident, Sierra was insured under a commercial liability policy issued

by Granada.     The policy contained the following assault and battery

endorsement:

           EXCLUSION - ASSAULT AND BATTERY
           THIS ENDORSEMENT MODIFIES INSURANCE
           PROVIDED UNDER THE FOLLOWING:
           COMMERCIAL GENERAL LIABILITY COVERAGE
           FORM
           Section I - Coverages
           Coverage A.
           2. Exclusions
           The following is added as an Exclusion.



                                      2
            This insurance does not apply to “bodily injury”,
            “property damage”, “personal injury” or “advertising
            injury” arising out of or resulting from:
            (a) any actual, threatened or alleged assault or
            battery;
            (b) the failure of any insured or anyone else for whom
            any insured is or could be held legally liable to
            prevent or suppress any assault or battery; or
            (c) the negligent:
                   (i) employment;
                   (ii) investigation;
                   (iii) supervision;
                   (iv) training;
                   (v) retention;
            of a person for whom any insured is or ever was
            legally responsible and whose conduct would be
            excluded by (a) or (b) above;
            (d) any other cause of action or claim arising out of
            or as a result of (a), (b), or (c) above . . .

     After Sierra sought coverage, Granada filed a declaratory judgment

action requesting a declaration that it had no obligation under the policy to

defend or indemnify Sierra for claims brought by the injured patron in the

underlying negligence action because the claims stemmed from the battery

that occurred on its premises. Granada moved for summary judgment based

on the assault and battery exclusion.     The trial court granted summary

judgment.

     We review the grant of summary judgment de novo. Wilshire Ins. Co.

v. Poinciana Grocer, Inc., 

151 So. 3d 55

, 56 (Fla. 5th DCA 2014).




                                      3
      “The general rule is that an insurance company’s duty to defend an

insured is determined solely from the allegations of the complaint against the

insured.”

Id. at 57

(citations omitted).     “[I]f the pleadings show the

applicability of a policy exclusion, the insurer has no duty to defend.”

Id.

(citations omitted).

The

policy specifically excluded from coverage any bodily injury

“arising out of or resulting from” an actual battery, failure to prevent the

battery and related negligence claims. “The term ‘arising out of’ is broader

in meaning than the term ‘caused by’ and means ‘originating from,’ ‘having

its origin in,’ ‘growing out of,’ ‘flowing from,’ ‘incident to’ or ‘having a

connection with.’” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 

913 So.

2d

528, 539 (Fla. 2005) (quoting Hagen v. Aetna Cas. & Sur. Co., 

675 So.

2d

963, 965 (Fla. 5th DCA 1996)). We have no difficulty discerning that

Tejada’s negligence claims arose out of the battery incident that occurred on

Sierra’s premises and fell under the policy’s exclusion.

      It is well-established precedent that where the claimant’s injuries arise

out of or result from a physical altercation, an assault and battery exclusion—

such as the exclusion in the Granada policy—bars coverage for the claim

against the insured.    See 

Poinciana, 151 So. 3d at 57

(“[B]ecause the

contract expressly provides claims arising out of battery, including



                                      4
negligence, are not covered, we reverse the order finding a duty to defend

. . .”); Perrine Food Retailers, Inc. v. Odyssey Re (London) Ltd., 

721 So. 2d

402

, 404 (Fla. 3d DCA 1998) (“An assault and battery exclusion in a liability

policy precludes coverage for the negligence of the insured which arises as

a result of the assault and battery.”); Miami Beach Ent., Inc. v. First Oak

Brook Corp. Syndicate, 

682 So. 2d 161

, 162 (Fla. 3d DCA 1996) (“We hold

that under the specific terms of the assault and battery exclusion, the trial

court correctly found that coverage did not lie . . . Although the complaint

was couched in terms of the bar owner’s negligence in failing to keep control

over its patrons, for purposes of determining insurance coverage, the injuries

arose from the assault and battery.” (citing Britamco Underwriter’s, Inc. v.

Zuma Corp., 

576 So. 2d 965

, 965 (Fla. 5th DCA 1991) (bar whose customer

recovered judgment against bar owner for negligence was not entitled to

coverage by insurer when customer’s claim arose from assault and battery,

and policy excluded coverage for assault and battery))); Smith v. Gen.

Accident Ins. Co. of Am., 

641 So. 2d 123

, 125 (Fla. 4th DCA 1994) (“[I]t

appears abundantly clear to us that the plaintiff’s complaint has been framed

in negligence solely to reach the ‘deep pocket’ of the insurance company (or

its insured), as there is a clear exclusion in the policy for assault and battery

by a patron, which is what occurred in this case.” (citation omitted)).



                                       5
     Accordingly, we conclude the trial court correctly entered summary

judgment in favor of Granada.

     Affirmed.




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