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Cotugno v. Lounge

October 30, 2009

JOSEPH COTUGNO, PLAINTIFF-RESPONDENT,
v.
EURO LOUNGE, EURO LOUNGE CAFÉ, A NEW JERSEY CORPORATION, DEFENDANT/THIRD-PARTY PLAINTIFF/RESPONDENT,
v.
QBE INSURANCE CORPORATION, THIRD-PARTY DEFENDANT/APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8804-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 1, 2009

Before Judges Stern and Newman.

Third-party defendant, QBE Insurance Corporation (QBE), appeals from an order in a declaratory judgment, as well as an earlier order denying a motion for summary judgment. The issue involves whether coverage for defendant Euro Lounge existed when plaintiff Joseph Cotugno was escorted out of the lounge by security personnel and accidentally tripped over a parking block. We agree with the ruling of the trial court that coverage was available to Euro Lounge and affirm.

Viewing the facts in a light most favorable to QBE, they may be summarized as follows. Plaintiff was a patron at the lounge on December 20, 2003. He was with two friends. They had a round of drinks and plaintiff went to the bar to order more drinks. A person told plaintiff that he could not get a drink here, "this is a private bar." Plaintiff's friend, John, came over and indicated they were "not looking for any trouble and were here with [John's] fiancée." Another person came over and "went right into the fact that he was going to kick [plaintiff's] ass." This other person then sucker punched plaintiff. At that point, the security personnel came over. Plaintiff did not retaliate against the patron who hit him.

The security personnel, commonly known as bouncers, escorted plaintiff out a side exit door. Each bouncer held underneath one of plaintiff's arms and walked him backward out of the lounge. In the parking lot, plaintiff, still in that position, tripped over a parking block, fracturing his ankle.

In a non-jury trial, Judge Vichness found for plaintiff and awarded him $62,880 damages against Euro Lounge, plus prejudgment interest of $7,702.80 for a total judgment of $70,582.80. The amount of the award for the fractured fibular sustained in the tripping incident is not contested. The issue is whether coverage was available to Euro Lounge under the liability policy.

In addressing the policy, the trial court noted that bodily injury is or is not covered, as a general proposition, depending on the circumstances. It recognized that where bodily injury or property damage is expected or intended, it is not excluded from coverage if the bodily injury results from the use of reasonable force to protect persons or property. The trial court determined that the means of removing plaintiff from the lounge after he was punched was a reasonable use of force by the security personnel. Stated another way, the court noted that they removed plaintiff in a manner that was "a reasonable exercise of their job."

The trial court then addressed the assault and battery exclusion, which was an added exclusion to the policy. The policy itself, as the trial court noted, does not contain a definition of assault and battery. The court determined that the actions of the bouncers could not constitute an assault or battery because they did not possess the required intent to cause bodily injury; therefore, the court rejected the notion that the security personnel had committed an assault on plaintiff.

QBE took the position that plaintiff was assaulted by somebody else and the bouncers acted to prevent him from being further assaulted or to suppress the action so there was no further assault, which tracked into the language of the exclusion. The trial court rejected this argument and had this to say:

[Plaintiff] got hurt not because they were trying to prevent or suppress the fight. He was out of the fight, as a matter of fact, he was out of the building already. He got hurt as a result of their actions in removing him from the building. In doing so, certainly at least for purposes of this motion, negligently. So, I find the... exclusion does not apply.

The commercial general liability coverage policy in question provides for exclusions in the main portion of the policy. The policy indicates under Section 1, Paragraph 2, ...


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