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
FROM THE PULASKI COUNTY CIRCUIT COURT, FI FT H D I VIS I O N
[NO. 60CV-17-4424] HONORABLE WENDELL GRIFFEN, JUDGE
Andrew Vines, P.A., by: J. Andrew Vines, for appellants.
Friday, Eldredge & Clark, LLP, by: William A. Waddell,
Jr., for appellee Houston Specialty Insurance Company.
WAYMOND M. BROWN, JUDGE
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 court's 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
appellee's 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
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
policy's 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.
voluntarily nonsuited his negligence complaint at some point.
He refiled his complaint of December 28, 2017, adding 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 MEMS's
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 Policy's 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 lawsuit."
March 9, 2018, E B Management and Ernie Biggs filed a
cross-motion for summary judgment and a separately filed
brief in support. Therein, it stated:
5. The [Houston Specialty] Policy provides coverage under its
Commercial General Liability Coverage Form (the "CGL
Coverage Form"), which also has certain exclusions as
more fully set forth in the Complaint accompanying brief in
support of this motion. One such exclusion is for an
"assault and battery incident," which is defined
under the Policy and gives rise to limited Assault and
Battery Coverage [(A&B Coverage)].
6. The limits of insurance under the CGL Coverage Form are $1
million. The limits of insurance under the A&B Coverage
are $l00, 000. Both limits of insurance are
inclusive of the costs of defense or "eroding"
7. The complaint filed in the Underlying Action alleges
theories of recovery grounded exclusively in negligence and
does not allege (nor purport to allege) any claim, injury,
damage, or loss arising out of an "assault,"
"battery," or "assault or battery
8. [Houston Specialty] has denied coverage under the
Policy's CGL Coverage Form for the Underlying Action and
refuses to provide them with either a defense or
indemnification under that coverage part. [Houston Specialty]
is instead providing a defense to the ...