On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-5370-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker and Seltzer.
Third-party plaintiff, El Bamboo Bar and Club, Inc.*fn1 (El Bamboo) appeals from an order entered on July 21, 2006, granting summary judgment dismissing its complaint against its insurer, ALEA London, Ltd. (ALEA), seeking to compel ALEA to provide a defense against a claim by a patron that he had been injured as a result of El Bamboo's failure to "provide a safe environment for its patrons." We affirm.
Juan Perez filed a complaint on July 2, 2004, alleging that he was a patron of El Bamboo. He claimed that as a result of the El Bamboo's failure "to monitor its patrons for dangerous weapons," he was shot and injured. El Bamboo was insured by ALEA under a general liability insurance policy. When ALEA, claiming a provision of the policy excluded coverage for the events described in Perez's complaint, refused to defend that complaint, El Bamboo filed a third-party action seeking to compel a defense. The judge agreed that the exclusion excused ALEA from defending the claim and dismissed the third-party complaint. El Bamboo, thereafter, settled with Perez and this appeal followed.
The facts are not in dispute. Perez alleged in his complaint that El Bamboo "negligently, recklessly and/or carelessly failed to adequately provide a safe environment for its patrons. Specifically, the defendant El Bamboo Bar/Club failed to monitor its patrons for dangerous weapons. Said failure caused the plaintiff to be shot while a patron at El Bamboo Bar/Club." The policy in effect provided insurance against "bodily injury" if caused by an "occurrence" within the "coverage territory." ALEA does not dispute that in the absence of an exclusion, it would be required to defend the claim of Perez and, were Perez successful, to pay the resulting damages to the policy limit. ALEA, however, claims that its responsibility is excused by virtue of an exclusion. That exclusion provides:
ASSAULT AND/OR BATTERY EXCLUSION:
This insurance does not apply to any claim arising out of:
A. Assault and/or Battery committed by any person whosoever, regardless of degree of culpability or intent and whether the acts are alleged to have been committed by the insured or any officer, agent, servant or employee of the insured or by any other person; or
B. Any actual or alleged negligent act or omission in the: