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Cohne v. Navigators Specialty Insurance Co.

United States District Court, D. Massachusetts

February 19, 2019

DAVID COHNE, Plaintiff,
v.
NAVIGATORS SPECIALTY INSURANCE COMPANY, Defendant.

          MEMORANDUM & ORDER

          WILLIAM G. YOUNG DISTRICT JUDGE.

         I INTRODUCTION

         David Cohne (“Cohne”) filed suit against Navigators Specialty Insurance Company (“Navigators”) requesting a declaratory judgment that Navigators has a duty to defend and to indemnify him in two actions pending in the Massachusetts Superior Court sitting in and for the County of Suffolk. Notice Removal, Ex. B, Pl.'s Compl., ECF No. 1-4. Cohne also alleges breach of contract, breach of the covenant of good faith and fair dealing, and violation of Massachusetts General Laws chapters 93A and/or 176D (“93A/176D”). Id. at ¶¶ 23-40. Cohne seeks summary judgment on Navigators' duty to defend. Pl.'s Mot. Summ. J. Count I (“Pl.'s Mot.”), ECF No. 25; Mem. Supp. Pl.'s Mot. Summ. J. Count I, ECF No. 26 (“Pl.'s Mem.”).

         For the reasons set forth below, this Court declares that Navigators has no duty to defend, in essence ruling against Cohne pursuant to Federal Rule of Civil Procedure 56(f) (authorizing court to enter summary judgment against moving party under proper circumstances).

         A. Procedural History

         In November 2017, Cohne filed a complaint against Navigators in the Massachusetts Superior Court sitting in and for the County of Suffolk. Pl.'s Compl. Navigators removed the action to this Court the following month. Notice Removal, ECF No. 1. Cohne requests a declaratory judgment on Navigators' duty to defend and to indemnify him and alleges that Navigators breached its contract, breached the covenant of good faith and fair dealing, and violated 93A/176D. Pl.'s Compl. ¶¶ 23-40.

         In February 2018, Cohne filed a motion for judgment on the pleadings regarding Navigators' duty to defend and the parties fully briefed the issue. Pl.'s Mot. J. Pleadings Count I, ECF No. 10; Mem. Law Supp. Pl.'s Mot. J. Pleadings Count I, ECF No. 13; Opp'n Def. Pl.'s Mot. J. Pleadings, ECF No. 17; Reply Mem. Supp. Pl.'s Mot. J. Pleadings Count I, ECF No. 18. After a motion hearing in March 2018, the Court denied the motion without prejudice and administratively closed the case to await the outcome of the underlying state tort cases. Electronic Clerk's Notes, ECF No. 20.

         On Cohne's motion, the Court reopened the case in August 2018. Pl.'s Mot. Re-Open Administratively Closed Case, ECF No. 22; Electronic Clerk's Notes, ECF No. 24. In September 2018, Cohne filed a motion for summary judgment on Navigators' duty to defend, which the parties have now fully briefed. Pl.'s Mot.; Pl.'s Mem.; Opp'n Def. Pl.'s Mot. Summ. J. (“Def.'s Opp'n”), ECF No. 34; Pl.'s Reply Mem. Supp. Mot. Summ. J. Count I (“Pl.'s Reply”), ECF No. 36; Def.'s Sur-Reply Br. (“Def.'s Sur-Reply”), ECF No. 39. Cohne submitted a statement of undisputed facts, Local Rule 56.1 Statement Undisputed Facts Supp. Pl.'s Mot. Summ. J. Count I (“Pl.'s Statement Facts”), ECF No. 32, to which Navigators responded, Defs.' Resps. Pl.'s Rule 56.1 Statement Facts (“Resp. Statement Facts”), ECF No. 35.

         On November 29, 2018, this Court heard oral argument on Cohne's motion for summary judgment and took it under advisement. See Electronic Clerk's Notes, ECF No. 41.

         B. Factual Background

         On both August 10 and August 19, 2014, the Boston Ballroom Corporation (“BBC”) employed Cohne as a bouncer at the Royale Night Club (the “Club”) on Tremont Street in Boston, Massachusetts. Pl.'s Statement Facts ¶¶ 2-3; Resp. Statement Facts ¶¶ 2-3; Pl.'s Mem., Ex. 2, Maltacea Compl. ¶¶ 9-10, ECF No. 26-2. Two lawsuits are pending in the Suffolk County Superior Court against Cohne and BBC, one brought by Keith Yianacopolus (“Yianacopolus“) and the other by James Maltacea (“Maltacea”), for incidents occurring at and near the Club. Pl.'s Statement Facts ¶¶ 1-4; Resp. Statement Facts ¶¶ 1-4. Navigators insured BBC from July 2, 2014 through July 2, 2015 pursuant to policy number CE14CGL136160IC (the “Policy”). Pl.'s Statement Facts ¶ 18; Resp. Statement Facts ¶ 18.

         1.The Yianacopolus Action

         In November 2016, Yianacopolus sued Cohne and BBC. Pl.'s Mem., Ex. 1, Yianacopolus Compl., ECF No. 26-1. He alleged that in the early morning hours of August 19, 2014, outside the front door of the Club, Cohne “suddenly, ” “without any warning, ” and “without provocation” committed an assault and battery against him. Id. at ¶¶ 7-10. “A short time later, ” Yianacopolus alleged, Cohne followed him “out onto the street and committed” a second assault and battery against him, “using a baton as a weapon.” Id. at ¶ 11. Yianacopolus alleged that Cohne was “at all times . . . acting within the scope of his employment duties” and “under the direction and control” of BBC. Id. at ¶¶ 12-13.

         Yianacopolus brought both a negligence and a civil assault and battery claim against Cohne. Id. at ¶¶ 15-19, 26-30. In the negligence claim, Yianacopolus alleged that Cohne's breach of his duty to use reasonable care as a doorman caused Yianacopolus' injury. Id. at ¶¶ 16-19. Yianacopolus further alleged that at all relevant times he “exercised reasonable care for his own safety.” Id. at ¶ 18.

         In July 2018, Cohne's attorneys deposed Yianacopolus. Pl.'s Mem., Ex. 3, Yianacopolus Dep., ECF No. 26-3. There, Yianacopolus testified that he entered the Club at around eleven o'clock p.m. on the night of the incident and consumed alcohol. Id. at 37:10-24. He stated that at some point “around closing time” he left. Id. at 51:7-8. He testified that as he was trying to re-enter the Club to speak with a woman whom he had met earlier, id. at 53:3-19, 71:11-21, Cohne, who was working at the door, id. at 58:8-18, “negligently used excessive force” by “striking [him] in the face, ” id. at 64:20-65:18.

         During his deposition, Yianacopolus agreed that a bouncer has an obligation to ensure the safety of patrons of the establishment for which he works, id. at 65:19-66:8, and clarified that the basis of his negligence claim is Cohne's failure to undertake safer alternatives to keep him out of the club and his assessment that Cohne used force “above and beyond what a bouncer should do in that situation, ” id. at 67:8-20. Yianacopolus was not able to provide specific examples of safer alternatives, but suggested that verbal warnings, which he claims Cohne failed to provide, would have been better than “his fist.” Id. at 66:15-70:8.

         In May 2018, Cohne provided sworn answers to interrogatories from BBC about the incident at the core of Yianacopolus' complaint. Pl.'s Mem., Ex. 4, Cohne's Answers Interrogs. (“Cohne's Answers”) 3, ECF No. 26-4. Cohne stated that Yianacopolus “appeared to be intoxicated” when “attempting to enter the [C]lub by pushing his way through the inside hallway.” Id. Cohne stated that he began by verbally telling Yianacopolus not to enter, but Yianacopolus “proceeded to throw his shoulder into [him] while making threatening remarks.” Id. Cohne claimed that he then “made physical contact” with Yianacopolus in a continued effort to prevent him from going inside, after which “Yianacopolus subsequently threw a punch at [him].” Id. Cohne stated that at that point he “feared for [his] own personal safety, ” so he again “made physical contact with [Yianacopolus].” Id.

         2. The Maltacea Action

         In July 2017, Maltacea sued Cohne and BBC. Maltacea Compl. Maltacea alleged that on the early morning of August 10, 2014, Cohne, while acting as a bouncer of the Club and “in the due course of his employment . . . without provocation, right, or reason, struck and beat [Maltacea] with a metal baton and caused [him] severe physical injuries.” Id. at ¶¶ 9-10. Maltacea's complaint against Cohne includes one count of “Negligent and Excessive Force, ” which alleges that Cohne “negligently caused and did cause a harmful contact with [Maltacea]'s person.” Id. at ¶¶ 27-31.

         3. Navigators' Policy

         Two parts of the Policy relate to this case: the Commercial General Liability Coverage Form CG 00 01 04 13 (“CGLC”), Pl.'s Mem., Ex. 5, Navigators Policy 13-28, ECF No. 26-5, and the Assault And Battery And Negligent Supervision Limitation (“Limitation”), id. at 43-44.

         The CGLC lays out the situations covered by the Policy. Id. at 13-28. In relevant part, the CGLC provides the following:

1. Insuring Agreement
a. We 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. We will have the right and duty to defend the insured against any “suit” seeking those damages. However, we will have no duty to defend the insured against any “suit” seeking damages for “bodily injury” or “property damage” to which this insurance does not apply. . . .
b. This insurance applies to “bodily injury” and “property damage” only if:
1) The “bodily injury” or “property damage” is caused by an “occurrence” that takes place in the “coverage territory”; . . .
2. Exclusions . . . This insurance policy does not apply to:
a. “Bodily injury” or “property damage” expected or intended from the standpoint of the insured. This exclusion does not apply to “bodily injury” resulting from the use of reasonable force to protect persons or property.

         Navigators Policy 13-14.

         The CGLC defines an “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” Id. at 27. The CGLC specifies that “[t]hroughout this policy the words ‘you' and ‘your' refer to the Named Insured shown in the Declarations, and any other person or organization qualifying as a Named Insured under this policy, ” and “[t]he word ‘insured' means any person or organization qualifying as such under Section II - Who is An Insured.” Id. at 13. In addition, the Common Policy Declarations (“Declarations”) refer solely to BBC as a “Named Insured.” Id. at 3.

         The Limitation is an endorsement that changes the general rule in certain circumstances. Id. at 43-44. In relevant part, the Limitation provides the following:

I. Except as provided in item II below, this policy does not apply to “bodily injury, ” “property damage, ” or “personal and advertising injury” arising from:
A. assault and/or battery committed or alleged to have been committed by any person; or B. physical assault, abuse, molestation, or habitual neglect; or licentious, immoral, amoral or other behavior that was committed or alleged to have committed by any insured or by ...

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