Beating an Employee With a Pistol for Four Hours is Excluded

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Intending Harm Caused is not Insurable
Posted on July 27, 2022 by Barry Zalma    
Beating an Employee With a Pistol for Four Hours is Excluded

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State Farm Fire and Casualty Company filed a motion for summary judgment, arguing that it owed no duty to defend or indemnify defendants, Hamdallah, L.L.C., et al. (“the LLCs”), against the claims asserted by plaintiff, Nixon Calix. The trial court granted for summary judgment and dismissed all claims against State Farm with prejudice.

In Nixon R. Calix v. Ideal Market # 6, Hamdallah, L.L.C., Kaki And Son, LLC, Hamdallah Hasan “Mario” Kaki, Muwafak “Mike” Kaki, Monadel “Cory” Elbarqa, Nofal “George” Haifa John Does 1-4, El Cortez Foods, LLC, And ABC & XYZ Insurance Company, No. 21-CA-555, Court of Appeals of Louisiana, Fifth Circuit (July 13, 2022) explained the right to rely on a clear and unambiguous exclusion.
FACTS

On May 28, 2015, Nixon Calix sued for damages against Ideal Market #6, and others, alleging that while employed at Ideal Market #6, he was assaulted and battered by fellow employees who also threatened his life.
The Intentional Beating

According to the facts alleged Mr. Calix was an employee in the meat department at Ideal Market #6, where Mario Kaki, Mohammad Kaki, and Muwafak Kaki were also employed in managerial capacities. Mohammad Kaki and Cory Elbarqa transported Mr. Calix to 2309 L & A Road. There, Mr. Calix was accused of stealing meat from Ideal Market #6 and was “subjected to a violent physical assault and/or battery” by Mario Kaki, Mohammad Kaki, and Cory Elbarqa. Mario Kaki brandished a firearm, pointed it at Mr. Calix, and threatened to kill him if he did not confess to the alleged theft. When Mr. Calix refused to confess, Mario Kaki used the firearm as well as his fists and legs to beat Mr. Calix’s head, face, and body for approximately four hours. Mr. Calix claimed that he was “severely beaten, punched, kicked, abused, and terrorized” by Mario Kaki while Mohammad Kaki and Cory Elbarqa watched and prevented him from leaving. As a result, Mr. Calix alleged that he suffered severe mental and physical injuries.
The Allegations

Mr. Calix alleged his injuries were caused by the intentional acts of the defendants, assault, battery, kidnapping, false imprisonment, and intentional infliction of emotional distress. Additionally, Mr. Calix claimed that the LLCs were vicariously liable under the doctrine of respondeat superior for the derivative liability, negligence, and fault of its employees, and were liable individually, jointly, severally, and in solido through their own negligence, specifically for negligent hiring, negligent training, negligent supervision, and negligent retention.
The Motion for Summary Judgment

State Farm filed a motion for summary judgment alleging that there is no coverage under its policies for the claims against the defendants. .

The trial court signed a written judgment granting the motion for summary judgment and dismissing all of Mr. Calix’s claims against State Farm with prejudice.

The trial court found that regardless of the legal theory argued by Mr. Calix, the intentional actions of the owners/managers of the defendant companies, in particular the actions of Mario Kaki, are the essential cause of Mr. Calix’s alleged damages. Coverage for these actions was specifically excluded by the policies.
The LAW

A dispute as to the issue of whether, as a matter of law, the language of an insurance policy provides coverage to a party, can properly be resolved within the context of a motion for summary judgment.

The extent of coverage is determined by the parties’ intent, as reflected by the words of the policy. An insurance company may limit coverage in any manner, as long as the limitations do not conflict with statutory provisions or public policy.

Mr. Calix argued that the “expected or intended injury” exclusion does not apply to preclude vicarious liability or liability premised on respondeat superior. Finally, he contended that State Farm failed to meet its burden in its second motion for summary judgment because his injuries arose out of negligent hiring, training, supervision, and/or retention over multiple employees of multiple employers and not a single event and action of one person.
The Exclusion

The State Farm policies contain an exclusion for expected or intended injury, which provides:

    Expected or Intended Injury
    “Bodily injury” or “property damage” expected or intended to cause harm as would be expected by a reasonable person; or
    “Bodily injury” or “property damage” which is the result of willful and malicious, or criminal acts of the insured.

ANALYSIS

This clause does not, by its precise terms, exclude coverage for bodily injury caused by the insured’s intentional act. Rather, it excludes coverage for bodily injury “expected or intended from the standpoint of the Insured.” The phrase “bodily injury … which is expected or intended,” emphasizes that an excluded injury is one which the insured intended, not one which the insured caused, however intentional the injury-producing act. The next phrase, “from the standpoint of the Insured,” emphasizes again that it is the insured’s subjective intention and expectation which delimit the scope of the exclusion.

The Court of Appeal concluded that reasonable minds could not disagree that, accepting the allegations as true, Mario Kaki’s actions of using a firearm as well as his fists and legs to beat Mr. Calix’s head, face, and body for approximately four hours were expected or intended to cause bodily injury.

Accordingly, there was no error in the trial court’s finding that the policies exclude coverage of any liability imposed on any defendants arising from Mr. Calix’s claims of assault, battery, kidnapping, false imprisonment, and/or intentional infliction of emotional distress alleged against Mario Kaki, Mohammad Kaki, Muwafak Kaki, and Cory Elbarqa.

The trial court correctly pointed out in its judgment, even if defendants’ actions are deemed to be negligent, any liability imposed on defendants arising from their alleged actions are excluded from coverage based on bodily injury to a co-employee.

Having found that the policies exclude coverage for the intentional acts of the employees/managers, the Court of Appeal also concluded that the policies do not provide coverage to the LLCs for any vicarious liability based on the employees’ actions.

Any claims that the LLCs are liable based on claims of negligent hiring, negligent training, negligent supervision, and negligent retention stem from or are dependent on Mario Kaki’s actions. Therefore, there was no coverage under the present insurance policies based on allegations of negligence for damages resulting from Mario Kaki’s intentional acts and the trial court’s decision was affirmed.
ZALMA OPINION

Fortunately for State Farm its exclusion clearly fit the allegations of the suit and the facts developed by the deposition of the plaintiff. No insurer should be required to defend or indemnify a party insured who beat the plaintiff with fists, feet, and a pistol for four hours. A single punch might be accidental but four hours is nothing more than a vicious beating that intentionally caused injury to the plaintiff. Mario Kaki and his cohorts will be required to defend themselves and pay any judgment the plaintiff obtains without the benefit of insurance.

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(c) 2022 Barry Zalma & ClaimSchool, Inc.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and [email protected].

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