Capitol Specialty Insurance v. JBC Entertainment Holdings, Inc.
Capitol Specialty Insurance v. JBC Entertainment Holdings, Inc.
Opinion of the Court
¶1 — This case requires us to consider the application of a firearms exclusion in a commercial general liability (CGL) policy. The exclusion at issue denies coverage for bodily injury and property damage “that arises out of, relates to, is based upon, or attributable to the use of a firearm(s).”
FACTS
¶2 JBC Entertainment Holdings Inc. operates Jillian’s nightclub in Seattle. The CGL insurance policy JBC purchased from Capitol Specialty Insurance Corporation provided that “[w]e 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.”
¶3 On March 21,2010, an unknown person fired a gun at Jillian’s, injuring patron Jackson Jacob Mika. To recover damages related to the shooting, Mika filed a complaint in January 2011 against JBC, JBC employee Michael Knudsen, JBC owners/shareholders Gemini Investors and Alpha Capital Partners Ltd., and nonemployee event promoter Marquis Holmes. Mika asserted that JBC should have provided enhanced security “such as ‘wanding’ for firearms, given the large number of hip hop/rap patrons [,] in order to keep the Plaintiff safe.”
¶4 JBC, Alpha, Gemini, and Knudsen tendered the defense of Mika’s lawsuit to Capitol. Capitol agreed to defend under a reservation of rights and then filed this declaratory
¶5 JBC, Alpha, Gemini, and Knudsen responded that the negligence claims fell outside of the firearms exclusion and that the exclusion was ambiguous about whether it applied to any firearms-related injury or only to the use of a firearm by the insured. Mika joined the response. The trial court granted Capitol’s motion, ruling that the firearms exclusion “is binding, applicable and wholly precludes coverage for all claims, injuries and damages asserted by Jackson Jacob Mika.”
ANALYSIS
¶6 We review summary judgment and evidentiary decisions made in that context de novo.
Concurrent Cause Theory
¶7 JBC contends Mika’s claims for negligent hiring, training, supervision, and security allege a concurrent and independent cause of his injuries and therefore fall outside the firearms exclusion. Although the application of the firearms exclusion to negligence claims is an issue of first
¶8 Grant McAllister was injured in a fight at a nightclub.
¶9 The policy excluded coverage for “any claim, demand or suit based on assault and/or battery, and assault and/or battery shall not be deemed an occurrence, whether or not committed by or at the direction of the insured.”
We find the assault and battery exclusion in the Agora policy to be unambiguous in its application to McAllister’s claim, which is ultimately “based on” assault and battery in the sense that without first establishing the underlying assault, negligence cannot be proved.[13]
¶10 Our Supreme Court embraced the McAllister analysis as it pertains to claims of preassault negligence but recognized a distinction where a plaintiff claims the defendant’s postassault negligence exacerbated his injuries. In American Best Food, Inc. v. Alea London Ltd., nightclub staff removed patron George Antonio following a confrontation with Michael Dorsey, only to allow him to reenter
¶11 JBC argues McAllister and Alea are distinguishable because they involve assault and battery exclusions, not firearms exclusions, and because in both cases, the clubs’ employees took some kind of action that contributed to the plaintiff’s injuries, i.e., allowing patrons to return following altercations. In contrast, JBC argues, “no such action was taken by JBC, its employees and/or associates in this matter.”
¶12 JBC relies on the California case, Underwriters Insurance Co. v. Purdie,
¶13 Purdie’s concurrent, independent cause doctrine has been widely criticized, and the very court that issued the decision later declined to follow its reasoning. In Century Transit Systems, Inc. v. American Empire Surplus Lines Insurance Co., an employee committed an assault while in the course of his employment.
¶14 Expressly rejecting its earlier decision in Purdie, the California Court of Appeals held that the exclusion unambiguously applied:
*335 The assault and battery is clearly the basis for the action against Century; the fact that the claim also includes separate negligent acts by Century cannot avoid the exclusion. Those alleged acts of negligence were based on the assault and battery committed ... on the plaintiffs. The exclusion therefore applies and Century cannot rely upon the allegations of negligence to create a potential for coverage.[27]
¶15 The same is true here. JBC’s alleged liability for negligence is wholly dependent upon the shooting, an occurrence that is specifically excluded from coverage.
Ambiguous Policy Language
¶16 Language in an insurance policy is ambiguous if susceptible of two different but reasonable interpretations.
¶17 The firearms exclusion in JBC’s policy explicitly provides that “[t]his insurance does not apply to . . . ‘[b]odily injury’ or ‘property damage’ that arises out of, relates to, is based upon or attributable to the use of a firearm(s).”
¶18 JBC relies on the Missouri decision in Braxton v. United States Fire Insurance Co.
¶20 JBC contends that Capitol could have added clarifying language if it intended to exclude coverage for claims arising out of the use of a firearm by someone other than the insured. As an example of such clarifying language, JBC points to McAllister, where the assault and battery exclusion disclaimed coverage for claims “ ‘based on assault and/or battery, and assault and/or battery shall not be deemed an occurrence, whether or not committed by or at the direction of the insured.’ ”
¶21 Even if we were inclined to look beyond the plain language of the firearm exclusion clause itself, we would find it more compelling to consider the use of clarifying language in the policy at issue than the language used in other policies.
Motion To Strike
¶22 JBC moved to strike portions of a declaration filed in support of Capitol’s motion for summary judgment. Kent Lawson, Capitol’s vice president of claims, stated, among other things:
15. To my knowledge, at no time prior to obtaining the Capitol Policy did the JBC Insureds object to or seek clarification from Capitol regarding the Firearms Exclusion.
16. To my knowledge, at no time prior or subsequent to obtaining the Capitol Policy did the JBC Insureds affir*339 matively seek or request from Capitol coverage options for bodily injury or property damage relating to the use of a firearm.
17. To my knowledge, at no time prior or subsequent to obtaining the Capitol Policy did the JBC Insureds indicate any belief that they interpreted the Firearms Exclusion to only apply to the use of a firearm by an insured. (JBC first asserted this alleged belief as part of its motion to vacate the order and judgment of default.) And, of course, Capitol does not interpret the Firearms Exclusion in that manner, nor does it believe that it is a reasonable interpretation of this unambiguous exclusion.[48]
¶23 JBC argues Lawson’s testimony does not satisfy the CR 56(e) requirement that the affidavit “be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” JBC points out that Lawson did not state he was the insurance agent, that he had personal knowledge of the negotiations with JBC, or that he had personal knowledge of the application process relating to the policy.
¶24 The court denied the motion to strike, ruling that the objection was “well taken and goes to the weight rather than admissibility of Mr. Lawson’s statements.”
CONCLUSION
¶25 The firearms exclusion in the CGL policy unambiguously excludes coverage for all claims arising from the
¶26 Affirmed.
Clerk’s Papers at 33.
Clerk’s Papers at 69.
Clerk’s Papers at 33.
Clerk’s Papers at 494.
Clerk’s Papers at 149.
Clerk’s Papers at 476.
Mika, Knudsen, and Holmes did not appeal.
Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005); Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Vallandigham, 154 Wn.2d at 26 (citing CR 56(c)). All facts and reasonable inferences are considered in the light most favorable to the nonmoving party, and summary judgment is appropriate only if, from all the evidence, reasonable persons could reach but one conclusion. Id.
103 Wn. App. 106, 11 P.3d 859 (2000).
Id. at 107.
Id. at 108.
Id. at 109.
13 Id. at 111.
168 Wn.2d 398, 402, 229 P.3d 693 (2010).
Id. at 403.
Id. at 408, 411.
Appellant’s Reply Br. at 14.
Clerk’s Papers at 33.
145 Cal. App. 3d 57, 193 Cal. Rptr. 248 (1983).
Id. at 124 (emphasis omitted).
27 Id. at 128.
McAllister, 103 Wn. App. at 109.
Id. (internal quotation marks omitted) (quoting Tewell, Thorpe, & Findlay, Inc. v. Cont’l Cas. Co., 64 Wn. App. 571, 575, 825 P.2d 724 (1992)).
Id. at 110.
Clerk’s Papers at 70, 33.
Appellant’s Br. at 23.
651 S.W.2d 616, 620 (Mo. Ct. App. 1983).
Clerk’s Papers at 70, 33.
See Hunt v. Capitol Indem. Corp., 26 S.W.3d 341, 344-45 (Mo. Ct. App. 2000) (distinguishing Braxton on similar grounds).
McAllister, 103 Wn. App. at 109 (emphasis added).
See, e.g., Black v. Nat’l Merit Ins. Co., 154 Wn. App. 674, 681-82, 226 P.3d 175 (2010) (“ ‘In the absence of anything in the context of a contract clearly indicating a contrary intent, when the same word is used in different parts of the contract, it will be presumed to be used in the same sense throughout the contract.’ ” (quoting Holter v. Nat’l Union Fire Ins. Co., 1 Wn. App. 46, 50, 459 P.2d 61 (1969))).
Clerk’s Papers at 30 (emphasis added).
Clerk’s Papers at 31.
The parties devote a portion of their briefing to the distinction between an insurer’s duty to defend and duty to indemnify. The controlling issue on appeal of this declaratory judgment action is whether the firearm exclusion applies. Because it does, JBC establishes no ongoing duty to defend. See Kirk v. Mt. Airy Ins. Co., 134 Wn.2d 558, 561, 951 P.2d 1124 (1998) (“Although an insurer has a broad duty to defend, alleged claims which are clearly not covered by the policy relieve the insurer of its duty.”).
48 Clerk’s Papers at 172.
Clerk’s Papers at 474.
We further note that none of Lawson’s statements are dispositive in any event.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.