United States District Court, D. Maryland
Lipton Hollander, United States District Judge.
insurance dispute, plaintiff Nautilus Insurance Company
(“Nautilus”) has filed a declaratory judgment
action against defendants 200 West Cherry Street, LLC, d/b/a
Nauti-Goose Saloon (“200 West” or the
“Saloon”); Richard Woollens; and William King,
Jr. ECF 1 (“Complaint”). In Count One, Nautilus seeks
a declaration that it “has no duty to defend or
indemnify 200 West or Woollens” under a Commercial
Lines Policy (the “Policy”) that it issued to 200
West, which covered the period from March 12, 2013, to March
12, 2014. In Count Two, Nautilus seeks a declaration that it
has no duty under the Policy to defend or indemnify “as
a result of the assault or battery exclusion” under the
Policy. Subject matter jurisdiction is founded on
diversity of citizenship. See Id. ¶ 9.
case is rooted in litigation arising from a tort suit filed
by King in February 2016, in the Circuit Court for Cecil
County against 200 West, Woollens, and several others.
See King v. Nauti-Goose Saloon, No. 07-C-16000229
(Cir. Ct. for Cecil Cty. Feb. 10, 2016); see also
ECF 1-1 (the “Tort Suit”). King alleged that
Woollens, a 200 West employee, assaulted King on August 24,
2013, after King left the Saloon. ECF 1-1, ¶¶ 12,
has moved for summary judgment (ECF 23, the
“Motion”), supported by two exhibits. ECF 23-1;
ECF 23-2. Saloon opposes the Motion (ECF 30, the
“Opposition”) and submitted four exhibits. ECF
30-1 to ECF 30-4. Plaintiff has replied. ECF 31
Motion is fully briefed and no hearing is necessary to
resolve it. See Local Rule 105.6. For the reasons
that follow, I shall deny the Motion.
The Tort Litigation
Saloon is a restaurant and bar with its principal place of
business located in Cecil County, Maryland. ECF 1-1, ¶
5. At the relevant time, Woollens was an off-duty Maryland
State Police officer, providing private security services for
200 West. Id. ¶¶ 8, 14; ECF 1, ¶ 11.
King was a patron of the Saloon.
February 10, 2016, in the Circuit Court for Cecil County,
King filed the Tort Suit, alleging claims against Woollens;
200 West; TTS Properties, Inc.; Anchor Boats, Inc.; Marcus
Brown, individually and in his capacity as former
Superintendent of the Maryland State Police; the Maryland
State Police; and the State of Maryland. See ECF
The Tort Suit contained thirteen counts, but it proceeded
only as to six of them: “Battery” (Count I);
“Gross Negligence” (Count IV); “Negligence
- Security” (Count X); “Negligence: Hiring,
Training, Retention, and/or Supervision” (Count XI);
“Negligence - Failure to Warn” (Count XII); and
“Negligence - Negligent Misrepresentation” (Count
XIII). ECF 1, ¶ 12; see also ECF 1-1. Nautilus
defended 200 West in the Tort Suit, retaining Eccleston &
Wolf as defense counsel. See ECF 30 at 3.
Tort Suit, King alleged that on the night of August 23, 2013,
he and several friends went to the Saloon. ECF 1-1,
¶¶ 4, 12. At about 12:45 a.m. on August 24, 2013, a
member of Saloon security allegedly asked King's friend
to leave the bar. Id. ¶ 13. King's friend
left, and King followed. Id. ¶ 13. King claimed
that when he arrived in the parking lot, his friends were
arguing with the Saloon's security personnel, including
Woollens. Id. ¶ 14. According to the Tort Suit,
Woollens, an off-duty police officer working security for 200
West, wore his Maryland State Police badge and carried a
firearm and handcuffs. Id. ¶ 15. He also
identified himself as a Maryland State Trooper. Id.
asserted that he was unarmed and posed no threat.
Id. ¶ 16. Nevertheless, when he started walking
toward his friends, he was pushed to the ground by the
Saloon's security personnel. Id. Further, King
asserts that when he stood up, Woollens grabbed him, lifted
King above Woollen's head, and “swiftly slammed
[King's] head to the concrete pavement, ” with
“such force that patrons located more than one hundred
feet away - on the lower deck inside of the restaurant -
heard the thud.” Id. ¶ 17. As a result,
King was knocked unconscious. Id. While King lay
bleeding on the concrete, Woollens handcuffed him.
Id. ¶ 18.
suffered “catastrophic injuries. Id. ¶
19. These included “a fractured bone in the [right]
side of his skull, a fractured plate in the middle of his
skull, a fractured in [sic] right eye socket, a fractured
bone in the rear area of the side of his skull, a concussion,
severe bleeding behind his skull, and severe mental
“was charged with second degree assault, trespass,
disorderly conduct, failure to obey, and resisting arrest in
Cecil County District Court case number 4K00065839, State
of Maryland v. William King.”
Id. ¶ 20. He received a sentence of probation
before judgment on April 20, 2015. Id. Therefore,
there was no imposition of a judgment of conviction.
course of litigation in the Tort Suit, the Saloon and other
defendants moved for summary judgment. Of relevance here, in
its “Memorandum of Law in Support of Motion for Summary
Judgment” (ECF 30-2) (“Memorandum”), 200
West disputed King's version of events, stating, ECF 30-2
Plaintiff ignored [Woollens'] orders to leave and instead
went towards TFC Woollens in an aggressive manner, and
stated, “I don't care if you're a cop, I'll
stab you.” [Exhibit No. 12, Affidavit of Richard A.
Woollens, ¶ 6]. This statement gave TFC Woollens concern
that Plaintiff had a concealed knife or sharp weapon.
Id. That fact, coupled with Plaintiff's
aggressive behavior, his intoxication, and the large number
of people in the vicinity led TFC Woollens to believe
Plaintiff would harm him or other people at the scene.
Fearing for his safety and others, TFC Woollens wrapped his
arms around Plaintiff in order to prevent the threatened
assault. Id. at ¶7. TFC Woollens realized that
the only way to gain control of Plaintiff in a safe manner
was to execute a takedown, and therefore, he executed a
take-down technique to take Plaintiff down to the ground.
Id. . . .
During the takedown, Plaintiff sustained a head injury; TFC
Woollens had no intent to cause an injury, only to take
Plaintiff down as a quickly as possible to prevent him from
causing an injury to those at the scene. Id. at
Keith A. Baynes, of the Circuit Court for Cecil County,
presided at the hearing on the motions for summary judgement.
See ECF 30-4. At the close of the hearing, he issued
an oral ruling (id. at 39-41), granting the motions
(ECF 30-4). Judge Baynes stated, id. at 39-40:
[T]he Court does find looking at the evidence in the light
most favorable to the plaintiff [i.e., King] that there's
really not any dispute as to material fact and the Court does
believe that the force used by the officer [i.e., Woollens]
was reasonable based upon the conduct and language of the
plaintiff at the time of the events. . . . [U]sing the
reasonable officer standard, again, the Court finds that the
conduct of the officer was reasonable based upon the threat
that was immediately apparent.
See also ECF 30-3 (Judge Baynes's orders
granting summary judgment to defendants).
noted an appeal to the Maryland Court of Special Appeals. ECF
30 at 5-6; see also King v. Nauti-Goose Saloon, No.
17-2183 (Md. Ct. Spec. App.). And, Nautilus has continued to
defend 200 West in the appeal, pursuant to a reservation of
rights letter (ECF 30-1), dated November 22, 2016.
See ECF 30-2 at 3 n.2.
The Insurance Policy
noted, Nautilus's request for declaratory judgment arises
out of a Commercial Lines Policy of insurance issued to 200
West. See ECF 23-2. The Policy was in effect, and
covered 200 West and its employees, from March 12, 2013
through March 12, 2014. Id. at 1, 11-12.
Policy contains two sections relevant to coverage in this
case: (1) Coverage under the “Commercial General
Liability [“CGL”] Coverage Form, ”
id. at 4-18 (the “CGL Form”) and (2) an
endorsement modifying the Policy, titled “EXCLUSION -
ALL ASSAULT OR BATTERY.” Id. at 19 (the
Form of the Policy provides, in relevant part, id.
SECTION I - COVERAGES
COVERAGE A BODILY INJURY AND PROPERTY
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 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. . . .
* * *
b. 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”;
under the Policy, Nautilus covers damages resulting from a
“bodily injury” caused by an “occurrence,
” but does not have a duty to “defend the insured
against any ‘suit' seeking damages for
‘bodily injury' . . . to which this insurance does
not apply.” Id. Under the Policy,
“bodily injury” is defined as “bodily
injury, sickness or disease sustained by a person, including
death resulting from any of these at any time.”
Id. at 15. And, “occurrence” is defined
as “an accident, including continuous or repeated
exposure to substantially the same general harmful
conditions.” Id. at 17. However, it does not
appear that the Policy defines “accident.”
Form also contains an “exclusion” for expected or
intended injuries. Id. at 5 (“Expected or
Intended Injury Exclusion”). It states, id.:
This insurance does not apply to:
a. Expected Or Intended Injury
“Bodily injury” or “property damage”
expected or intended from the standpoint of the insured. This
exclusion does not apply to “bodily injury”
resulting from the use of reasonable force to protect persons
result of this exclusion, the Policy does not cover a bodily
injury that the insured “expected or intended.”
Id. However, the Exclusion does not apply if the
injury resulted “from the use of reasonable force to
protect persons or property.” Id. (the
“Reasonable Force Exception”).
Form contains the following relevant endorsement modifying
the Policy, id. at 19 (the “Battery
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT
EXCLUSION-ALL ASSAULT OR BATTERY
This endorsement modifies insurance provided under the
COMMERCIAL GENERAL LIABILITY COVERAGE PART
A. The following exclusion is added to
2. Exclusions of Section I - Coverage A -Bodily
Injury And Property Damage Liability, Coverage B - Personal
And Advertising Injury Liability, and
Coverage C. - Medical Payments:
Regardless of culpability or intent of any person, this
insurance does not apply to “bodily injury”,
“property damage”, “personal and
advertising injury” or medical payments arising out of
1. Actual or alleged assault or battery;
2. Physical altercation; or
3. Any act or omission in connection with the prevention or
suppression of such acts, including the alleged failure to
provide adequate security.
This exclusion applies regardless of whether such actual or
alleged damages ...