United States District Court, D. Massachusetts
MEMORANDUM & ORDER
WILLIAM G. YOUNG DISTRICT JUDGE.
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.”).
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).
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.
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.
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.
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
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.
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.
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.
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
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.
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
The Maltacea Action
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.
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.
CGLC lays out the situations covered by the Policy.
Id. at 13-28. In relevant part, the CGLC provides
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.
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.
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 ...