                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 07-1174


ST. PAUL REINSURANCE COMPANY, LIMITED,

                Plaintiff – Appellee,

          v.

JOSEPH J. RIVIELLO,

                Defendant – Appellant,

          and

OLLIE'S SEAFOOD GRILLE AND BAR LLC; OLLIE'S BY THE BAY;
CHRISTINE B. GOODMAN,

                Defendants.



                              No. 07-1203


ST. PAUL REINSURANCE COMPANY, LIMITED,

                Plaintiff – Appellee,

          v.

OLLIE'S SEAFOOD GRILLE AND BAR LLC; OLLIE'S BY THE BAY;
CHRISTINE B. GOODMAN,

                Defendants – Appellants,

          and

JOSEPH J. RIVIELLO,

                Defendant.
Appeals from the United States District Court for the District
of South Carolina, at Beaufort. Patrick Michael Duffy, District
Judge. (9:06-cv-01080-PMD)


Submitted:   September 3, 2008        Decided:   October 20, 2008


Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John H. Tiller, Anne L. Ross, HAYNSWORTH SINKLER BOYD, P.A.,
Charleston, South Carolina, for Appellants Ollie’s Seafood
Grille and Bar LLC, Ollie’s By the Bay, and Christine B.
Goodman; Samuel S. Svalina, Beaufort, South Carolina, for
Appellant Joseph J. Riviello.    John S. Wilkerson, III, Nosizi
Ralephata, TURNER PADGET GRAHAM & LANEY, P.A., Charleston, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      In these consolidated cases, Ollie’s Seafood Grille and Bar

LLC, Ollie’s by the Bay, Christine B. Goodman (collectively,

“the Ollie’s appellants”), and Joseph J. Riviello appeal from

the summary judgment entered in favor of St. Paul Reinsurance

Company, Ltd.           See St. Paul Reins. Co. v. Ollie’s Seafood Grille

and Bar, LLC, 242 F.R.D. 348 (D.S.C. 2007).                      Finding no error,

we affirm.

      At all times pertinent to this case, Goodman owned Ollie’s

by   the    Bay    in    Beaufort,       South   Carolina,     through   the     limited

liability company, Ollie’s Seafood & Grille, LLC.                        In September

2001, Goodman purchased an insurance policy (the “Policy”) from

St. Paul.         The Policy included a Commercial General Liability

Part (“CGL”) and a separate Liquor Liability Coverage Part.

      In June 2005, Riviello filed suit in the Court of Common

Pleas      for     Beaufort       County    against     Jason       Diggins,     Richard

Derleth, and the Ollie’s appellants.                    In that action, Riviello

alleges that in June 2002 he visited Ollie’s by the Bay as an

invitee     and        consumed    alcoholic      beverages      on    the     premises.

Diggins and Derleth, who were also invitees consuming alcoholic

beverages         at    Ollie’s     by     the   Bay,    allegedly       provoked     an

altercation        and    assaulted        Riviello.      As    a     result    of   the

altercation, Riviello sustained serious injuries.                        In his first

cause of action, Riviello asserts a claim against Diggins and

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Derleth for assault and battery.              In his second cause of action,

brought against the Ollie’s appellants, Riviello asserts that he

was injured as a result of their negligent or reckless breach of

a duty to (1) provide a safe and controlled environment for the

entertainment of invitees, (2) prevent the sale of alcohol to a

person    in    an    intoxicated    condition,     (3)    prevent      the   sale   of

alcohol    to    minors,    and     (4)   protect   against       the     foreseeable

criminal acts of third parties.               Riviello seeks to recover for

all injuries he allegedly sustained as a direct or proximate

result of the assault and battery.

    The        Ollie’s     appellants     tendered        the    defense      of     the

underlying lawsuit to St. Paul.               In April 2006, St. Paul (which

provided a defense under a reservation of rights) filed this

declaratory judgment action seeking a declaration that it has no

duty to defend or indemnify the Ollie’s appellants.                           St. Paul

thereafter       moved     for    summary     judgment,         arguing    that      the

underlying      lawsuit    arises     from    an   assault       and   battery     and,

therefore, is excluded from coverage under the plain language of

the Policy.          Specifically, St. Paul pointed to the CGL Part of

the Policy, which excludes liability for claims arising out of

“Assault and Battery, whether caused by or at the instructions

of, or at the direction of or negligence of the insured, his

employees, patrons or any causes whatsoever;” and the Commercial

Liquor Liability Coverage Part of the Policy, which excludes

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“any   claim     arising      out   of    an       assault       and/or    battery       .     .    .

whether caused by the insured, an employee, a patron or any

other person.”        J.A. 45, 70.

       The    district     court     granted         St.    Paul’s        summary    judgment

motion, holding that St. Paul has no duty to defend or indemnify

the    Ollie’s       appellants      in       the    underlying          litigation.               In

reaching      this     decision,      the       district         court     applied       common

principles      of    South    Carolina        insurance         contract     law,       and       it

relied    particularly        on    the   factually          similar       case     of   Sphere

Drake Insurance Co. v. Litchfield, 438 S.E.2d 275 (S.C. App.

1993).

       In Sphere Drake, the state court of appeals held that an

assault and battery exclusion in a nightclub’s insurance policy

applied to a patron’s assault and battery and negligence claims

arising      from    an   incident       in    which       the    nightclub’s       “bouncer”

assaulted a patron.           The policy in Sphere Drake excluded “claims

arising out of Assault and Battery, whether caused by or at the

direction of, the insured, his employees, patrons [or] any cause

whatsoever.”         Id. at 277.     The court of appeals reasoned:

       [T]he separate acts of negligence alleged by [the
       plaintiff] are not actionable without the assault and
       battery, because without the assault and battery there
       would be no damage suffered as a result of the alleged
       negligence   of   [the    defendant   nightclub].   The
       negligence claims are for bodily injury “arising out
       of” assault and battery and come within the exclusion.

Id.

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     Applying South Carolina law to the facts of this case, the

district court concluded:

     In this case, the exclusionary clauses in both the
     Commercial General Liability Coverage Part and the
     Commercial Liquor Liability Coverage Part of the
     Policy unambiguously apply to the underlying lawsuit.
     In readily understandable language, these provisions
     exclude coverage for claims arising out of assault and
     battery, “whether caused by the insured, an employee,
     a patron or any other person” or by the “negligence of
     the insured, his employees, patrons or any causes
     whatsoever.”   As was the case in Sphere Drake, the
     separate acts of negligence alleged in the underlying
     lawsuit would not be actionable without the assault
     and battery, because the only injuries suffered by
     Riviello were the result of the assault and battery.
     As such, the claim against the Ollie’s [appellants]
     for negligence “arose from” the alleged assault and
     battery, and are excluded from coverage under the
     plain terms of the Policy.

242 F.R.D. at 351.

     Summary      judgment      is     appropriate         “if   the    pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.”                   Fed. R. Civ. P.

56(c).     The relevant inquiry in a summary judgment analysis is

“whether    the   evidence      presents     a   sufficient      disagreement     to

require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law.”                  Anderson v. Liberty

Lobby,   Inc.,    477   U.S.    242,    251-52     (1986).       “We    review   the

district    court’s     order    granting        summary     judgment    de   novo,


                                         6
viewing the facts in the light most favorable to, and drawing

all reasonable inferences in favor of, the nonmoving party.”

Garofolo v. Donald B. Heslep Assocs., Inc., 405 F.3d 194, 198

(4th Cir. 2005).

       We have carefully reviewed the record, the parties’ briefs,

and the controlling law.                   For the reasons articulated by the

district court, we find that St. Paul is entitled as a matter of

law to a declaration that it does not have a duty to defend or

indemnify      the    Ollie’s    appellants         in    the   underlying   lawsuit.

Accordingly, we affirm the summary judgment. *                       We dispense with

oral       argument   because        the    facts   and    legal     contentions    are

adequately      presented       in    the    materials      before    the   court   and

argument would not aid the decisional process.

                                                                             AFFIRMED




       *
      While St. Paul’s summary judgment motion was pending,
Riviello sought a continuance under Rule 56(f) in order to
conduct further discovery. The district court denied Riviello’s
request, concluding that he failed to show specific facts that
he hoped to discover that would raise an issue of material fact
regarding St. Paul’s duty to indemnify and defend the underlying
lawsuit.   See 242 F.R.D. at 352.   Riviello appeals that aspect
of the district court’s order. We hold that the district court
did not abuse its discretion in denying his request.         See
generally Ingle v. Yelton, 439 F.3d 191, 195 (4th Cir. 2006)
(stating standard of review).



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