Thomas M. Bona, P.C.

Attorneys At Law

Second Department Enforces Policy Sublimits

in Assault Case


As part of our continuing commitment to provide outstanding representation and to serve as an information resource, we wish to inform you of a decision upholding policy sublimits for assault and battery.


Because plaintiff's attorneys have tried to find coverage for assault and battery cases by alleging that they are personal injuries as a result of an "accident", insurance companies began writing policy assault and battery sublimits. These sublimits most typically provide that if a matter arises out of an assault or battery, coverage is limited. This is to distinguish those cases which arise out of assaults at bar and restaurants, from cases arising out of negligence based upon a slip and fall or other personal injury arising out of the operation, use or ownership of the premises. A recent case by the Second Department shows how these policy sublimits can limit liability for bars and restaurants.


In American Safety Indemnity Company v. Loganzo, Loganzo was at a bar which was owned and operated by Long Island Pourhouse, Inc. ("Pourhouse"). At some point, the bar employees began beating Loganzo and chased him out of the bar and into oncoming traffic where he was struck by a car and suffered personal injuries. Loganzo commenced a personal injury action against Pourhouse, alleging that Pourhouse's employees negligently maintained, controlled and operated Pourhouse's premises. The complaint was purposely framed this way so as to avoid a disclaimer for an intentional act as well as the policy's sublimits for assault and battery, and to attempt to reach the larger policy limits for a personal injury accident.


American Safety Indemnity Company, ("American Safety") the insurer for Pourhouse, commenced a declaratory judgment action seeking a declaration that under the policy issued to Pourhouse, it was only obligated to provide coverage up to a limit of $100,000 in the underlying action. American Safety moved for summary judgment arguing that although the policy provided general liability coverage and liquor coverage of up to $1,000,000, the assault and battery endorsement limited coverage to $100,000 for damages arising out of an assault or battery and since plaintiff's injuries arose out of an assault, the sublimit applied. The lower Court granted summary judgment declaring that American Safety was only obligated to provide insurance coverage up to $100,000 in the underlying action. Loganzo appealed. The Second Department affirmed.


The Second Department found that American Safety had established its entitlement for summary judgment by demonstrating that the matter arose out of assault and battery and that therefore, the assault and battery endorsement limitation applied to Loganzo's claims against Pourhouse. The Second Department found that Loganzo had failed to raise a triable issue of fact and that therefore, summary judgment was properly granted and that American Safety was only obligated to provide insurance coverage up to the $100,000 limit.


Insurance companies who have polices that contain sublimits, especially in assault cases, should not hesitate to commence a declaratory judgment action to ensure that courts find that coverage is limited by any appropriate sublimits.


Should you have any questions, please call.


Thomas M. Bona