Cheryl Skirmont v. First Mercury Insurance Co. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 119.00 and 124.00)

FACTS

The plaintiffs, Cheryl Skirmont and C.L. Skirmont, Inc., commenced this action by service of process on the defendant, First Mercury Insurance Co., on July 12, 2011.   The plaintiffs seek a declaratory judgment requiring the defendant to provide insurance coverage and defense in a lawsuit brought against the plaintiffs by a third party.

In their revised complaint,¹ the plaintiffs allege the following facts.   Plaintiff Cheryl Skirmont is the permittee of Rumours Café, a bar and nightclub located in Stratford, Connecticut.   Plaintiff C.L. Skirmont, Inc., is a Connecticut corporation and corporate backer of Rumours Café.   The defendant is an insurance company authorized to issue policies in Connecticut, with business offices located in Chicago, Illinois.   On May 13, 2009, the Barnum Insurance Agency, 1757 Barnum Avenue, Stratford, Connecticut, sold the plaintiffs an insurance policy issued by the defendant for the purpose of providing insurance coverage to the plaintiffs for the operation of Rumours Café.   The policy included liability coverage for claims arising from bodily injuries suffered by patrons, among other things.

The plaintiffs further allege that on March 29, 2010, while the insurance policy was in effect, an individual named Marc Strickland commenced a civil action against them.²  The complaint in the Strickland action alleges that while Strickland was a patron of Rumours Café on January 26, 2010, agents and/or employees of Rumours served alcoholic beverages to Cheryl Rice–Lewis, who was an employee and/or patron of Rumours.³  According to the Strickland complaint, at the time Rice–Lewis was served, she was visibly and obviously intoxicated.   Strickland alleged that as a result of the sale of alcohol to Rice–Lewis, she made contact with Strickland, causing him to suffer various injuries, including lacerations, hemorrhaging and scarring around his right eye and forehead.   Strickland alleged three counts against the present plaintiffs:  count one, a violation of the Dram Shop Act, General Statutes § 30–102; ⁴  count two, common-law recklessness;  and count three, negligent supervision.   Count four alleges “negligent contact” against Rice–Lewis.

The plaintiffs allege that they duly notified the defendant of their insurance claim on January 27, 2010.   On March 5, 2010, the defendant denied coverage, which the plaintiffs allege was a breach of the insurance agreement between the plaintiffs and the defendant.

In their one-count revised complaint, the plaintiffs seek a judicial declaration that the defendant must defend the plaintiffs in the Strickland lawsuit and indemnify them against any loss if they are found liable to Strickland in any amount.   On August 15, 2012, the defendant moved for summary judgment on the ground that the complaint in the Strickland action pleads facts that are excluded from coverage by the policy's assault and battery exclusion.   The motion is accompanied by a memorandum of law and various exhibits,⁵ including the operative insurance policy and the Strickland complaint.   On November 16, 2012, the plaintiffs filed an objection and cross motion for summary judgment, accompanied by a memorandum of law and two exhibits.   On November 28, 2012, the defendant filed an objection to the plaintiffs' motion for summary judgment and a reply memorandum.   The motions were transferred to this court on May 3, 2013 pursuant to Practice Book § 11–19(b).

DISCUSSION

“The purpose of a declaratory judgment action ․ is to secure an adjudication of rights where there is a substantial question in dispute or a substantial uncertainty of legal relations between the parties ․ and to make certain that the declaration will conclusively settle the whole controversy.”  (Citations omitted;  internal quotation marks omitted.)  Mannweiler v. LaFlamme, 232 Conn. 27, 33, 653 A.2d 168 (1995).   A declaratory judgment action may be used to determine whether an insurer has a duty to defend and indemnify an insured.   See DaCruz v. State Farm Fire & Casualty Co., 268 Conn. 675, 688–89, 846 A.2d 849 (2004).   A trial court may render a declaratory judgment with respect to an insurance company's duty to indemnify even when a judgment in the underlying action has not entered, as long as the insurer's duty to defend has not arisen.  Id., 689.

Both parties agree that this dispute can be resolved on summary judgment, as the construction of an insurance contract can be decided as a matter of law.   Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 457, 462–63, 876 A.2d 1139 (2005).  “Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).

The dispositive issue in this case is whether the assault and battery exclusion in the operative insurance policy relieves the defendant of any obligation to defend or indemnify the plaintiffs in the Strickland action.⁶  The defendant argues that the policy unambiguously excludes coverage for liability involving allegations of assault and battery, including the allegations in the Strickland complaint.   In regard to count one of the Strickland complaint, which alleges a Dram Shop violation, the defendant cites Kelly v. Figueiredo, 223 Conn. 31, 610 A.2d 1296 (1992), where the Connecticut Supreme Court found that a similar assault and battery exclusion was unambiguous and precluded coverage for the underlying Dram Shop action.   In regard to counts two through four of the Strickland complaint, the defendant argues that the attempt to couch the lawsuit in terms of unintentional conduct does not circumvent the assault and battery exclusion in the policy.   In support, the defendant cites Clinch v. Generali–U.S. Branch, 110 Conn.App. 29, 954 A.2d 223 (2008), aff'd, 293 Conn. 774, 980 A.2d 313 (2009), arguing that even if the Strickland complaint alleges only negligence, the policy's broad definitions of assault and battery nonetheless exclude coverage.

The plaintiffs' primary response is that the assault and battery exclusion does not apply because the insurance contract is a contract of adhesion, and must therefore be construed against the insurer.   They contend that since the Strickland action does not allege assault and battery, but merely alleges a Dram Shop violation and claims sounding in negligence and recklessness, the defendant has an obligation to defend the plaintiffs in the Strickland action and indemnify them against any losses.   In further support of their position that the policy is a contract of adhesion, the plaintiffs argue that the liquor liability coverage part obligates the defendant to indemnify the plaintiffs for liability arising from the “selling, serving or furnishing of any alcoholic beverage,” but then “exclude[s] virtually every claim that could conceivably be brought against an insured operating a bar where alcohol is served.”   The basis for this argument is that the “product” exclusion contained in the liquor liability coverage part excludes any injury arising from the plaintiffs' “product,” including alcohol, in contradiction to the purpose of the liquor liability coverage part of the policy.   Finally, the plaintiffs claim that the only document Cheryl Skirmont read before purchasing the insurance was the insurance proposal, which appeared to indicate that liability arising from assault and battery was covered by the policy, subject only to certain exceptions not relevant here.

It is well established that an insurer's duty to defend is broader than its duty to indemnify.   See Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 398–99, 757 A.2d 1074 (2000).   As a pure question of law, the issue of whether an insurer has a duty to defend its insured is to be determined by comparing the allegations in the underlying complaint with the terms of the insurance policy.  Id., 395.  “The obligation of the insurer to defend does not depend on whether the injured party will successfully maintain a cause of action against the insured but on whether he has, in his complaint, stated facts which bring the injury within the coverage.   If the latter situation prevails, the policy requires the insurer to defend, irrespective of the insured's ultimate liability ․ Hence, if the complaint sets forth a cause of action within the coverage of the policy, the insurer must defend ․ Indeed, [i]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured ․ On the other hand, if the complaint alleges a liability which the policy does not cover, the insurer is not required to defend.”  (Citations omitted;  internal quotation marks omitted.)  Id., 398–99.

“In contrast to the duty to defend, the duty to indemnify is narrower:  while the duty to defend depends only on the allegations made against the insured, the duty to indemnify depends upon the facts established at trial and the theory under which judgment is actually entered in the case.”  (Internal quotation marks omitted.)  Board of Education v. St. Paul Fire & Marine Ins. Co., 261 Conn. 37, 48–49, 801 A.2d 752 (2002).  “Because the duty to defend is significantly broader than the duty to indemnify, where there is no duty to defend, there is no duty to indemnify ․” (Internal quotation marks omitted.)  DaCruz v. State Farm Fire & Casualty Co., supra, 268 Conn. 688.

“In ascertaining the meaning of the terms of the insured's policy, we ․ are guided by well established principles.   The [i]nterpretation of an insurance policy, like the interpretation of other written contracts, involves a determination of the intent of the parties as expressed by the language of the policy ․ The determinative question is the intent of the parties, that is, what coverage the ․ [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy ․ It is axiomatic that a contract of insurance must be viewed in its entirety, and the intent of the parties for entering it derived from the four corners of the policy ․ The policy words must be accorded their natural and ordinary meaning ․ Moreover, [t]he provisions of the policy issued by the defendant cannot be construed in a vacuum ․ They should be construed from the perspective of a reasonable layperson in the position of the purchaser of the policy.”  (Citation omitted;  internal quotation marks omitted.)  Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., supra, 254 Conn. 399–400.

The applicability of assault and battery exclusion clauses has been specifically addressed by the Connecticut Appellate and Supreme Courts.   In Kelly v. Figueiredo, supra, 223 Conn. 31, the court addressed whether an assault and battery exclusion precluded coverage for a Dram Shop action filed against an insured by an alleged stabbing victim.   In that case, the exclusion clause provided in relevant part:  “[T]he insurance does not apply to bodily injury or property damage arising out of assault and battery or out of any act or omission in connection with the prevention or suppression of such acts ․” (Internal quotation marks omitted.)  Id., 35.   The insured argued that this provision was ambiguous and should be construed against the insurer.   Even after construing the policy in favor of coverage, however, the court found that the insurance clause unambiguously relieved the insurer of any obligation to defend or indemnify the insured as a matter of law.  Id., 36–37.

More recently, in Clinch v. Generali–U.S. Branch, supra, 110 Conn.App. 29, the Appellate Court addressed a similar issue.   In that case, the plaintiff obtained a judgment from an insured following an altercation at the insured's restaurant during which the plaintiff was injured.   The underlying complaint alleged negligence and wilful, wanton and reckless conduct, but did not explicitly allege assault and battery.   The plaintiff filed suit against the insurer as a judgment creditor asserting the rights of the insured, claiming that the insurer had a duty to defend the insured in the underlying lawsuit.   See General Statutes § 38a–321.   The insurer denied having a duty to defend on the basis of an assault and battery exclusion in the operative policy.   The exclusion provided in relevant part:  “In consideration of the reduced premium charged, it is understood that this insurance does not apply to bodily injury, personal injury or property damage arising out of assault or battery or out of any act or omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or direction of the insured, his employees, patrons or any other person ․ Furthermore, there is no coverage for [an] assault and/or battery claim against the insured if the claim is based on the alleged failure of the insured to protect individuals whether or not patrons, or involves the negligent selection, training, employment, supervision or control of any individual.”  (Internal quotation marks omitted.)  Id., 36.

The plaintiff in Clinch argued that the policy provided coverage despite the assault and battery exclusion because the policy was ambiguous as to whether the exclusion applied.   Additionally, the plaintiff asserted that he never used the terms “assault” or “battery” in the underlying complaint and maintained that there were sufficient allegations of negligence that took the underlying complaint outside the assault and battery exclusion.⁷  He relied on language in Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., supra, 254 Conn. 399, where the court stated that “[i]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured.”  (Emphasis added;  internal quotation marks omitted.)

The Appellate Court found the exclusion to be unambiguous and rejected the plaintiff's reading of the underlying complaint, finding that it alleged assault and battery within the meaning of the policy.  Clinch v. Generali–U.S. Branch, supra, 110 Conn.App. 37.   Rather than analyzing the complaint in a hypertechnical manner, the court read the complaint in light of the modern trend, which is to construe pleadings broadly and realistically in such a way as to give effect to the pleading with reference to the general theory upon which the action proceeded, and do substantial justice between the parties.   Id. The court also dismissed the proposition that only intentional conduct could constitute an assault and battery within the meaning of the policy exclusion, noting that in Connecticut, an actionable assault and battery may be one committed intentionally, recklessly or negligently.⁸  Id., 40.   Our Supreme Court affirmed the decision of the Appellate Court and adopted its reasoning as a correct statement of the issues and the law.  Clinch v. Generali–U.S. Branch, supra, 293 Conn. 777.

In the present case, both the general liability and liquor liability coverage sections exclude claims brought to recover damages “based upon, related to, arising out of, directly or indirectly resulting from, in consequence of, in any way connected to, or in the sequence of events involving any actual or alleged ‘assault’ and/or ‘battery.’  “ The policy defines assault as “the apprehension of harmful or offensive contact by a person or thing, or the apprehension of harmful or offensive contact between or among two or more persons, by threats through words or deeds.”   It defines battery as “a harmful or offensive contact by a person or thing, or a harmful or offensive contact between or among two or more persons.”   Pursuant to the exclusion, “the [defendant] is under NO duty to defend or indemnify any insured regardless of the degree of culpability or intent ․” (Emphasis added.)   The policy also specifically excludes coverage for assault and battery “without regard to ․ [t]he theory of or basis for liability, recovery or relief, or the manner in which such theory of or basis for liability, recovery or relief is alleged, asserted or pleaded (including ․ [claims] which allege, assert or plead negligence in whole or in part ), where the operative acts and/or underlying events constitute an assault and/or battery.”  (Emphasis added;  internal quotation marks omitted.)   The exclusion also applies “without regard to ․ [t]he actual or alleged failure or fault of any insured ․ in the hiring, supervision, retention or control of any person ․”

Based on the above, the technical legal theory on which the underlying claim proceeds is irrelevant as long as the events giving rise to the cause of action involve facts that constitute assault and battery within the meaning of the policy exclusion.   Strickland alleges that he was injured when Rice–Lewis “made contact” with him, which is the factual basis for each count.   Any fair and reasonable reading of the complaint would characterize this as alleging “a harmful or offensive contact by a person or thing.”   As held in Clinch v. Generali–U.S. Branch, 110 Conn.App. 37, a court is not bound to read a complaint in a hypertechnical manner, nor accept the labels given to each count at face value.   Were it otherwise, creative pleading could circumvent even the most unequivocal policy exclusions, such as the one now before the court.   Even if the court interprets the Strickland complaint as alleging only unintentional conduct on the part of Rice–Lewis, the policy defines assault and battery as including conduct which is perpetrated negligently or recklessly, as does Connecticut common law.   Thus, reading the Strickland complaint broadly and realistically and in such a way as to give it effect with reference to the general theory upon which it proceeded, each count unambiguously alleges assault and battery within the meaning of the policy exclusion.

The plaintiffs argue that the policy is a contract of adhesion and therefore the assault and battery exclusion must be construed against the defendant.   While it is true that “any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy” (internal quotation marks omitted), Community Action for Greater Middlesex County, Inc. v. American Alliance Ins Co., supra, 254 Conn. 399;  our Supreme Court has clarified that “[a] necessary predicate to this rule of construction ․ is a determination that the terms of the insurance policy are indeed ambiguous.”  (Internal quotation marks omitted.)  Id. Thus, because the relevant provisions in the policy are unambiguous in this case, whether the policy can be considered an adhesion contract has no bearing on the outcome of the issues before the court.

The plaintiffs' next argument, that the assault and battery exclusion should be invalidated because of the “product” exclusion in the liquor liability part, is based on a misreading of the policy.   The plaintiffs argue that the policy is unfair because, on one hand, the policy provides liability coverage for certain injuries arising from the sale of alcohol, yet excludes coverage for injuries arising out of the plaintiffs' “product,” which they argue includes alcohol.⁹  A review of the policy reveals that the policy does indeed exclude liability for injuries arising out of the plaintiffs' “product,” and that the definition of “product” in the definition section of the policy does not exclude alcohol.¹⁰  Nevertheless, it is not true that liability arising out of the sale of alcohol is categorically excluded, because the exclusion section of the liquor liability coverage part specifically states that the “product” exclusion “does not apply to injury for which the insured or the insured's indemnitees may be held liable by reason of ․ [c]ausing or contributing to the intoxication of any person ․ [or] furnishing ․ alcoholic beverages to a person ․ under the influence of alcohol ․” (Internal quotation marks omitted.)   Thus, a plain reading of the policy indicates that, contrary to the plaintiffs' reading, there is no blanket exclusion for injuries arising out of the sale of alcohol.

Finally, the court addresses the plaintiffs' claim that Cheryl Skirmont believed that she had purchased assault and battery coverage that would have covered the incident that gave rise to the present action.   The plaintiffs submitted Skirmont's affidavit in which she attests that she had requested Barnum Insurance Agency to obtain coverage for assault and battery, and it appeared to her that based on the insurance proposal given to her prior to the finalization of the policy, the Barnum Insurance Agency had done so.   The plaintiffs argue in their memorandum that Skirmont believed that assault and battery was covered under the policy, unless the assault and battery involved punitive damages, the use of firearms, entertainers or persons under twenty-one years of age.¹¹

Even if the plaintiffs' interpretation of the proposal is a reasonable one, the proposal is outside the four corners of the insurance policy, and cannot be used to create an ambiguity.¹²  It is well established that “any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms.”  (Internal quotation marks omitted.)  Johnson v. Connecticut Ins. Guaranty Assn., 302 Conn. 639, 643, 31 A.3d 1004 (2011).   As discussed above, the terms of the policy itself exclude coverage for any liability arising from the Strickland action.   Skirmont's subjective understanding of the insurance policy based on the proposal she was given before the policy went into effect cannot be taken into consideration.

Accordingly, the defendant has no duty to defend the plaintiffs in the Strickland lawsuit or to indemnify them against any loss incurred as a result of that lawsuit.

CONCLUSION

The defendant's motion for summary judgment is granted, and the plaintiffs' cross motion for summary judgment is denied.

BELLIS, J.

FOOTNOTES

FN1. The operative complaint is the revised complaint filed on October 18, 2011..  FN1. The operative complaint is the revised complaint filed on October 18, 2011.

FN2. Strickland v. Skirmont, Docket No. CV 106008716, is currently pending in the Bridgeport Superior Court for the judicial district of Fairfield..  FN2. Strickland v. Skirmont, Docket No. CV 106008716, is currently pending in the Bridgeport Superior Court for the judicial district of Fairfield.

FN3. A copy of the Strickland complaint is annexed to the current plaintiffs' revised complaint.   The Strickland complaint also refers to a “Cheryl Rice–Brown,” but absent any indication to the contrary, the court assumes that to be a scrivener's error..  FN3. A copy of the Strickland complaint is annexed to the current plaintiffs' revised complaint.   The Strickland complaint also refers to a “Cheryl Rice–Brown,” but absent any indication to the contrary, the court assumes that to be a scrivener's error.

FN4. Section 30–102 provides in relevant part:  “If any person, by such person or such person's agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured, up to the amount of two hundred fifty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of two hundred fifty thousand dollars, to be recovered in an action under this section ․”.  FN4. Section 30–102 provides in relevant part:  “If any person, by such person or such person's agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured, up to the amount of two hundred fifty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of two hundred fifty thousand dollars, to be recovered in an action under this section ․”

FN5. “Under Connecticut law, before a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be ․ New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   Despite this rule, a court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party.   Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).”  (Internal quotation marks omitted.)   Clukey v. Sweeney, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 06 5001731 (December 30, 2009, Bellis, J.).   In this case, neither party has objected to any of the evidence submitted by the other.   Accordingly, the court will consider the evidence submitted including any evidence that has not been authenticated..  FN5. “Under Connecticut law, before a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be ․ New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   Despite this rule, a court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party.   Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).”  (Internal quotation marks omitted.)   Clukey v. Sweeney, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 06 5001731 (December 30, 2009, Bellis, J.).   In this case, neither party has objected to any of the evidence submitted by the other.   Accordingly, the court will consider the evidence submitted including any evidence that has not been authenticated.

FN6. The operative insurance policy contains two coverage sections that are at issue in this case:  the commercial general liability coverage section and the liquor liability coverage section..  FN6. The operative insurance policy contains two coverage sections that are at issue in this case:  the commercial general liability coverage section and the liquor liability coverage section.

FN7. The plaintiff specifically alleged that “as a direct result of the [insured's] failure to maintain its restaurant in a reasonably safe condition, the plaintiff ․ and two of his companions, were confronted inside the restaurant by a group of three males who were under the influence of alcohol, and the plaintiff was struck and hit inside the [insured's] restaurant by one of these males.”  (Internal quotation marks omitted.)  Clinch v. Generali–U.S. Branch, supra, 110 Conn.App. 37–38.   The plaintiff further alleged that “[a]s a result of the negligence and carelessness of the [insured], their agents, servants or employees, as aforesaid, the plaintiff was caused to be punched and struck inside the [insured's] restaurant and in the parking lot area of the restaurant and he was caused to suffer injuries ․” (Internal quotation marks omitted.)   Id., 38..  FN7. The plaintiff specifically alleged that “as a direct result of the [insured's] failure to maintain its restaurant in a reasonably safe condition, the plaintiff ․ and two of his companions, were confronted inside the restaurant by a group of three males who were under the influence of alcohol, and the plaintiff was struck and hit inside the [insured's] restaurant by one of these males.”  (Internal quotation marks omitted.)  Clinch v. Generali–U.S. Branch, supra, 110 Conn.App. 37–38.   The plaintiff further alleged that “[a]s a result of the negligence and carelessness of the [insured], their agents, servants or employees, as aforesaid, the plaintiff was caused to be punched and struck inside the [insured's] restaurant and in the parking lot area of the restaurant and he was caused to suffer injuries ․” (Internal quotation marks omitted.)   Id., 38.

FN8. The terms “assault” and “battery” were apparently not defined in the policy.   See Clinch v. Generali–U.S. Branch, supra, 110 Conn.App. 39..  FN8. The terms “assault” and “battery” were apparently not defined in the policy.   See Clinch v. Generali–U.S. Branch, supra, 110 Conn.App. 39.

FN9. The plaintiffs assert this argument as further support for their claim that the policy is an adhesion contract, but the argument is more properly characterized as asserting the unconscionability of the liquor liability coverage section..  FN9. The plaintiffs assert this argument as further support for their claim that the policy is an adhesion contract, but the argument is more properly characterized as asserting the unconscionability of the liquor liability coverage section.

FN10. The definition is located in the definition sections of both the general liability and liquor liability coverage sections under “Your product.”.  FN10. The definition is located in the definition sections of both the general liability and liquor liability coverage sections under “Your product.”

FN11. This argument is apparently based on the fact that the term “Assault & Battery” was highlighted in the proposal, which gave Skirmont the impression that it was a subsection heading below which other exclusions were listed, rather than an exclusion itself..  FN11. This argument is apparently based on the fact that the term “Assault & Battery” was highlighted in the proposal, which gave Skirmont the impression that it was a subsection heading below which other exclusions were listed, rather than an exclusion itself.

FN12. Both the general liability and liquor liability coverage parts state:  “This policy contains all the agreements between [the plaintiffs] and [the defendant] concerning the insurance afforded.”.  FN12. Both the general liability and liquor liability coverage parts state:  “This policy contains all the agreements between [the plaintiffs] and [the defendant] concerning the insurance afforded.”

Bellis, Barbara N., J.