Court of Appeals of Arkansas, Divisions I, III & IV
E B MANAGEMENT COMPANY, LLC and Ernie of Little Rock, Inc. d/b/a Ernie Biggs, and Brandon Griffin, Appellants
HOUSTON SPECIALTY INSURANCE COMPANY and Michael Scott Tice, Appellees
Rehearing Denied July 17, 2019
FROM THE PULASKI COUNTY CIRCUIT COURT, FIFTH DIVISION [NO.
60CV-17-4424], HONORABLE WENDELL GRIFFEN, JUDGE.
Andrew Vines, P.A., by: J. Andrew Vines, Little Rock, for
Eldredge & Clark, LLP, Little Rock, by: William A. Waddell,
Jr., for appellee Houston Specialty Insurance Company.
M. BROWN, Judge
Appellants E B Management Company, LLC (E B Management), and
Ernie of Little Rock, Inc., d/b/a Ernie Biggs (Ernie Biggs),
and Brandon Griffin appeal from the circuit courts order
denying their motion for summary judgment, dismissing their
complaint for declaratory judgment, and granting the
cross-motion for summary judgment of appellees Houston
Specialty Insurance Company (Houston Specialty), and Michael
Scott Tice. On appeal, Ernie Biggs argues that the (1)
circuit court erred in finding that the insurance policy was
unambiguous and (2) allegations of the underlying complaint
give rise to the possibility of coverage and trigger the
appellees duty to defend. We affirm.
August 29, 2015, Houston Specialty issued a commercial
general liability (CGL) policy to E B Management. The policy
stated the following:
SECTION I - COVERAGES
COVERAGE A - BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally
obligated to pay as damages because of "bodily
injury" or "property damage" to which this
insurance applies. We will have the right and duty to defend
the insured against any "suit" seeking those
However, a limited-assault-or-battery-coverage section stated
that it modified the CGL policy:
I. LIMITED ASSAULT AND BATTERY INSURING AGREEMENT
A. We will pay all sums the Named Insured is legally
obligated to pay as damages because of "injury",
"bodily injury", "property damage" or
"personal and advertising injury" arising out of an
"assault or battery incident" by any insured.
"EXCLUSIONS" section, the policy stated:
The following exclusion is added to the COMMERCIAL GENERAL
LIABILITY COVERAGE FORM:
Injury, damage or loss, however caused, arising, directly or
indirectly, out of:
3. Any "assault or battery incident".
immediately following "DEFINITIONS" section,
"assault and battery incident" is defined:
"Assault and battery incident" means harmful or
offensive contact between or among two or more persons
including, but not limited to, apprehension or harmful or
offensive contact or threats or harmful or offensive contact.
An "assault or battery incident" may be:
a. provoked or unprovoked by any person, and
b. arise out of or result form any act or omission in
(1) Prevention or suppression of an "assault or battery
(2) Protection of persons or property;
(3) Negligent hiring, supervision, retention or training or
any "employee" of the Insured; or
(4) Implementation of adequate security measures, through
security personnel, surveillance or other security devices.
December 29, 2015, Griffin paid an entry fee into Ernie Biggs
as well as twenty dollars to a piano player to GO on stage
and play the drums during a song being played by that piano
player. Stating that Griffin was not keeping the beat, the
piano player stopped playing the song. Griffin asked for the
return of his twenty dollars; the piano player declined. At
some point near this time, Tice removed Griffin from the
stage and threw Griffin out the door of the establishment.
After being released by Tice, Griffin hit his head on the
concrete sidewalk, causing injury.
April 5, 2016, Griffin filed a complaint against Ernie Biggs
and Tice, asserting a cause of action for negligence under
the doctrine of respondeat superior, because Tice
"negligently decided to come on stage and jerk Plaintiff
Brandon Griffin off the stage, negligently led him to the
door with too much force, and negligently threw Plaintiff
Brandon Griffin out the door causing Plaintiff Brandon
Griffin to hit his head on the concrete sidewalk outside the
front door." Griffin further alleged that he was
"knocked unconscious, sustained a brain bleed causing a
traumatic brain injury, and has permanent brain damage."
Houston Specialty provided a defense to Ernie Biggs under the
policys assault-and-battery coverage and not its CGL
amended complaint filed on July 31, 2017, Griffin added E B
Management as a defendant in the case. He also modified his
statement of the case to assert that he paid the piano player
forty dollars and that the piano player offered return of
only twenty dollars when he requested a refund.
August 20, 2017, E B Management and Ernie Biggs filed a
complaint for declaratory judgment. Griffin answered in
agreement on October 10, 2017. Houston Specialty answered in
opposition on November 30, 2017, and sought dismissal of the
complaint with prejudice.
Griffin voluntarily nonsuited his negligence complaint at
some point. He refiled his complaint of December 28, 2017,
Little Rock Ambulance Authority d/b/a Metropolitan Emergency
Medical Services (MEMS), Arch Insurance Company, and five
John Doe insurance companies as additional defendants. A
negligence claim was asserted against these entities due to
MEMSs employees allegedly being "negligent in causing
further injury to Plaintiff Brandon Griffin, with that
negligence being imputed to" MEMS.
March 9, 2018, Houston Specialty filed a motion for summary
judgment and a separately filed memorandum in support. It
asserted that it had "already accepted coverage under
the Policys only applicable coverage afforded for
"assault and battery incidents" subject to a $
100,000 limit of liability, and owes no further obligation to
[E B Management and Ernie Biggs] in connection with this
on March 9, 2018, E B Management and Ernie Biggs filed a
cross-motion for summary judgment and a separately ...