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Gilmore v. Beach House

January 11, 2008

JEFFERY GILMORE, APPELLANT,
v.
BEACH HOUSE, INC., AND COLONY INSURANCE COMPANY, APPELLEES.



Appeal from Sedgwick District Court; JOSEPH BRIBIESCA, Judge.

SYLLABUS BY THE COURT

1. The standards for grant of summary judgment are considered and applied.

2. An insurer's duty to defend is broader than its duty to indemnify. The duty to defend arises if there is a potential for liability, however remote, under the policy. An insurer must look beyond the effect of the pleadings and consider any facts which it could reasonably discover in determining whether it has a duty to defend.

3. When a liability insurance policy contains an assault and battery exclusion, a negligence claim for injuries arising out of an assault and battery is irrelevant. An assault and battery exclusion is intended to exclude all claims arising out of an assault and battery even if the insured is found liable under a legal theory of negligence.

4. An insurer that breaches a duty to defend will be bound by a consent judgment between the injured party and the insured if the issue decided in the tort case is identical with the issue presented in the garnishment proceeding. However, an insurer that fails to provide a defense under a reservation of rights is not estopped from raising an assault and battery exclusion when that issue was not decided in the tort case.

5. Under the uncontroverted facts of this case, where injuries occurred when the intoxicated injured party standing on icy steps was subject to a battery that caused him to slip and fall, the assault and battery exclusion of the insuring agreement applies and there is no coverage afforded for the resulting loss.

The opinion of the court was delivered by: Knudson, J.

Affirmed.

Before MARQUARDT, P.J., LEBEN, J., and KNUDSON, S.J.

Plaintiff Jeffery Gilmore (Gilmore) appeals the district court's grant of summary judgment in a garnishment action brought against Colony Insurance Company (Colony). Gilmore had successfully sued Beach House, Inc. (Beach House) for personal injuries sustained on its premises. Colony insured Beach House. Under an assignment and covenant not to execute between Gilmore and Beach House, garnishment proceedings were commenced against Colony. The district court granted summary judgment to Colony. The central issue on appeal is whether Colony was entitled to litigate the coverage issue because it declined to defend Beach House in the tort case.

We affirm. Under the circumstances shown by the record, Colony had no duty to defend its insured in the underlying tort case nor was there coverage in the insuring agreement for Gilmore's injuries caused by a battery.

Underlying Circumstances

The parties agree the liability insurance policy issued by Colony is unambiguous and does not provide coverage for injuries arising as the result of a battery. In addition, the underlying facts are not in material dispute.

In the early morning hours of January 8, 2005, Gilmore left Beach House, a gentlemen's establishment located in Derby, Kansas. Gilmore was intoxicated, and upon leaving the club, he was intentionally shoved from behind by another individual. Gilmore slipped and fell on the club's icy steps, hitting his head on the concrete.

On April 12, 2005, Gilmore's counsel notified Beach House by letter that Gilmore was asserting a claim against the business for his injury. The letter provided: "The front steps of your business were laden with ice, and dangerous . . . . When Mr. Gilmore left the front doors of your business, another patron shoved him. Mr. Gilmore slipped on the steps and fell, struck his head against one of the concrete steps, and sustained a closed head injury."

At the time of Gilmore's January 8, 2005, injury, Beach House was insured by Colony under a general commercial insurance policy, which provided liability coverage for "bodily injury," "property damage," or "personal and advertising injury" arising out of or resulting from the ownership, maintenance, or use of ...


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