Court for Washington County Case No. 21-C-15-053386
Woodward, C.J., Berger, Arthur, JJ.
appeal arises from appellant-defendant, White Pine Insurance
Company's ("White Pine"), denial of coverage to
its insured, West End Pub and Restaurant, LLC ("West
End" or "West End Pub"), for a shooting injury
suffered by one of West End's patrons,
plaintiff-appellee, Howard R. Taylor ("Taylor").
The injury occurred on March 31, 2013, as Taylor opened the
door of the pub and was shot in the leg. No suspect was
apprehended and Taylor did not see who fired the gun. After
West End's insurer, White Pine, denied West End's
request to provide a defense to Taylor's claim for
negligence, West End and Taylor reached a consent judgment
agreement (the "Consent Verdict"), in which West
End admitted negligence and agreed to a settlement of $100,
000.00. Further, West End assigned to Taylor its claims
against White Pine for denying indemnity coverage under its
commercial general liability policy ("the Policy").
Taylor filed an action for breach of contract against White
Pine seeking judgment in the amount of $74, 999.99 in the
Circuit Court for Washington County. After a bench trial,
during which neither side presented any evidence of the
circumstances leading to the shooting (other than the Consent
Verdict), the circuit court found in favor of Taylor and
awarded damages in the amount of $100, 000.00.
Pine presents three issues on appeal, which we have reworded
1.Whether the circuit court erred by finding that White Pine
presented insufficient evidence that Taylor's injury was
excluded from coverage under the Policy's Assault and
Battery Exclusion, and therefore, that White Pine had a duty
to indemnify West End Pub for its liability to Taylor.
2. Whether the circuit court erred when it did not find that
White Pine had established that the Consent Verdict between
West End Pub and Taylor, in which West End Pub admitted
liability for negligence, was unreasonable.
3. Whether the circuit court properly awarded damages in the
amount of $100, 000.00, which exceeded the $74, 999.99 amount
of the ad damnum clause of Taylor's complaint.
AND PROCEDURAL HISTORY
night of March 31, 2013, Taylor visited the West End Pub in
Hagerstown, Maryland, not far from his apartment to watch a
basketball game. Taylor began to leave the pub at
approximately 1:43 a.m. As Taylor opened the door to exit,
however, he was struck by a bullet in his left leg. The
police did not apprehend the shooter or determine his or her
identity, and the shooter's motivation for firing the gun
remains unknown. Taylor testified that he did not observe
anyone brandishing a gun while he was inside West End Pub,
nor had he been warned that he was about to be shot. Taylor
further testified that he had not heard of any prior
shootings at the Pub, and he did not see who shot him or
where the bullet was fired. In addition, Taylor testified
that approximately ten people were standing nearby when he
was shot, two of whom were employees of the pub. No other
evidence regarding the circumstances of the shooting was
entered into evidence.
General Liability Framework
first page of the "Commercial General Liability Coverage
Form, " the Policy begins by noting that "[v]arious
provisions in this policy restrict coverage. Read the entire
policy carefully to determine rights, duties and what is and
is not covered." Under "Section I -- Coverages,
" the Policy provides that the insurer 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.
will have the right and duty to defend the insured against
any "suit" seeking those damages. However, we will
have no duty to defend the insured against any
"suit" seeking damages for "bodily
injury" or "property damage" to which this
insurance does not apply. We may, at our discretion,
investigate any 'occurrence' and settle any claim or
'suit' that may result.
. . .
This insurance applies to "bodily injury" and
"property damage" only if:
(1) The "bodily injury" or "property
damage" is caused by an "occurrence" that
takes place in the "coverage territory";
(2) The "bodily injury" or "property
damage" occurs during the policy period; and
(3) Prior to the policy period, no insured . . . and no
"employee" authorized by [the named insured] to
give or receive notice of an "occurrence" or claim,
knew that the "bodily injury" or "property
damage" had occurred in whole or in part.
Section IV - "Commercial General Liability Conditions,
" regarding third-party actions against the insurer, the
Policy provides the following:
A person or organization may sue us to recover on an agreed
settlement or on a final judgment against an insured; but we
will not be liable for damages that are not payable under the
terms of this Coverage Part or that are in excess of the
applicable limit of insurance. An agreed settlement means a
settlement and release of liability signed by us, the insured
and the claimant or the claimant's legal representative.
Section V -- "Definitions" -- defines several terms
used in the Policy.
"Bodily injury" means bodily injury, sickness or
disease sustained by a person, including death resulting from
any of these at any time.
. . .
"Occurrence" means an accident, including
continuous or repeated exposure to substantially the same
general harmful conditions.
. . .
"Suit" means a civil proceeding in which damages
because of "bodily injury" . . . to which this
insurance applies are alleged.
"Assault, Battery, or Assault and Battery
Exclusion" ("Assault and Battery Exclusion")
is an endorsement, which is attached to the Policy. The
Assault and Battery Exclusion provides that the insurance
does not apply to "bodily injury", "property
damage" or "personal and advertising injury"
arising out of or resulting from:
1. "Assault", "Battery", or "Assault
and Battery" committed by any person;
2. The failure to suppress or prevent "Assault",
"Battery", or "Assault and Battery"
committed by any person;
3. The failure to provide an environment safe from
"Assault", "Battery", or "Assault
4. The failure to warn of the dangers of the environment
which could contribute to "Assault",
"Battery", or "Assault and Battery";
5. "Assault", "Battery", or "Assault
and Battery" arising out of the negligent hiring,
supervision, or training of any person;
6.The use of any force to protect persons or property whether
or not the "bodily injury" or "property
damage" or "personal and advertising injury"
was intended from the standpoint of the insured or committed
by or at the direction of the insured.
Policy provides definitions for "Assault",
"Battery", and "Assault and Battery." An
"assault" is defined as (a) "an act creating
an apprehension in another of immediate harmful or offensive
contact, " or (b) "an attempt to commit a
'Battery.'" A "battery" is "an
act which brings about harmful or offensive contact to
another or anything connected to another." According to
the Policy, an "Assault and Battery" ...