
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 97-1476                          UNITED NATIONAL INSURANCE COMPANY,                                Plaintiff, Appellant,                                          v.                               PENUCHE'S, INC., ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Joseph A. DiClerico, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                Lynch, Circuit Judge,                                       _____________                             and Keeton,* District Judge.                                          ______________                                _____________________               Richard  J. Riley,  with whom  Murphy &  Riley, P.C.  was on               _________________              _____________________          brief for appellant.               Jeffrey S. Cohen, with whom  Gregory R. Kirsh and Sulloway &               ________________             ________________     __________          Hollis, P.L.L.C. were on brief for appellees.          ________________                                 ____________________                                   November 6, 1997                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                    TORRUELLA,  Chief  Judge.   United  National  Insurance                    TORRUELLA,  Chief  Judge.                                ____________          Company  ("United   National")  brought   this  suit   seeking  a          declaration that it has no duty to defend or indemnify Penuche's,          Inc.  ("Penuche's"), and its  president, Todd Tousley,  in a tort          action brought by a Penuche's Ale House patron, Thomas Burke.  At          Penuche's, Burke  was involved  in an  altercation which  Tousley          attempted to break up.  In so doing, Tousley caused Burke to fall          backward,  injuring his spine.   Among other  contentions, United          National  claims that under New  Hampshire law it  has no duty to          indemnify Penuche's or Tousley for  this claim because its multi-          peril  insurance  policy  contains an  exclusion  for  any claims          "arising out  of an  assault and/or battery."   We  reject United          National's arguments  and affirm  the district  court's award  of          summary  judgment to  Penuche's  and  Tousley, but  we  do so  on          different grounds than decided by that court.                                      BACKGROUND                                      BACKGROUND                                      __________                    The facts in this case  are essentially undisputed.  On          October  4, 1995, Burke was in Penuche's  Ale House in Keene, New          Hampshire.  An altercation ensued between two men, and Burke left          his table to attempt to calm them down.  Afterwards, as he turned          his back to return to  his table, he was  attacked by one of  the          men with a barrage  of punches to the side and  back of his head.          As  he  turned  around  to  face his  assailant,  he  observed  a          Penuche's employee, Tousley, coming toward him to stop the fight.          Tousley grabbed Burke  in a "bear  hug," pinning his arms  to his          sides  in  an apparent  attempt  to  immobilize him  and  prevent                                         -2-          further fighting.   Tousley's momentum, however, caused  Burke to          fall backwards,  striking various obstructions  as he fell.   The          fall left Burke with a severe spinal cord injury.                    Burke sued  Tousley and  Penuche's in  a New  Hampshire          court,  alleging  that  his  injuries  resulted   from  Tousley's          negligence in carelessly intercepting and restraining him.  Burke          further   claimed  that  Penuche's  is  liable  under  respondeat                                                                 __________          superior,  and "actively  negligent" insofar  as  slippery and/or          ________          cluttered  premises proximately caused  his injuries.   After the          commencement of  the state  court action,  Tousley and  Penuche's          demanded that  United National  provide coverage  and defense  of          Burke's claims under a multi-peril insurance policy held by "Todd          Tousley DBA  Penuche's  Ale House."   United  National agreed  to          provide a  defense subject to  a reservation of  rights, claiming          that  an exclusion  in its  policy relieves  it of  any indemnity          obligation.   It  subsequently  sued  Penuche's  and  Tousley  in          federal  district court under diversity jurisdiction, 28 U.S.C.            1332, seeking a declaratory judgment to this effect.                    Penuche's policy requires United National to defend and          indemnify it  against claims  asserting bodily  injury caused  by          "occurrence[s] . . . arising out of the ownership, maintenance or          use of  the  insured premises."   United  National contends  that          "exclusions" take  away coverage  that would  otherwise apply  to          this case under this broad "coverage" provision.                    One of the policy provisions excludes coverage for:                    claims  arising  out  of  an  assault  and/or                    battery,   whether  caused   by  or   at  the                                         -3-                    instigation of,  or at  the direction of,  or                    omission   by,   the  Insured,   and/or   his                    employees.            This is  the "assault  and battery" exclusion  at issue.   United          National  also requests  a limited  declaration  that insofar  as          Burke's claims arise out  of Penuche's negligent sale or  service          of  alcoholic beverages,  coverage  is  precluded  by  a  "liquor          liability" exclusion.                    The  district   court  found  that   neither  exclusion          precluded coverage for  the underlying suit.   The court  awarded          summary  judgment  for  Penuche's and  Tousley,  ordering  United          National to  defend and indemnify  the claims.   United  National          appeals this award,  asking for declaratory judgments  under both          exclusions and  further  arguing that  it was  premature for  the          district court to order it to indemnify the underlying claims, as          opposed to merely ordering a defense of those claims.                                      DISCUSSION                                      DISCUSSION                                      __________                    We review de  novo a district court's  grant of summary                              ________          judgment.  Pine  Tree Medical Associates  v. Secretary of  Health                     _____________________________     ____________________          and Human  Services, __ F.3d __, 1997 WL  563587 at *2, (1st Cir.          ___________________          1997).          I.  The Assault and Battery Exclusion          I.  The Assault and Battery Exclusion                    United  National  claims   that  coverage  for  Burke's          injuries is excluded because they  "arose out of" two assault and          batteries:  first Burke was attacked by another Penuche's patron;          and  then he  was manhandled  by Tousley,  who was  attempting to          break up the  fighting.  United National argues  that the assault                                         -4-          and battery exclusion  applies if the claims arose  out of either          or both of these incidents.                    A.  The Fight                    A.  The Fight                    It is not disputed that  Burke was battered by  another          patron of Penuche's on October 4, 1995.  However, the assault and          battery exclusion is only  implicated by this fight  if batteries          by customers were a type of battery excluded by the contract, and          if Burke's injuries could fairly  be said to "arise out of"  this          patron's attack.                     The policy excludes  "claims arising out of  an assault          and/or battery, whether caused by or at the instigation of, or at                          _______          the  direction  of, or  omission  by,  the  Insured,  and/or  his          employees." (emphasis added).  Tousley claims that this exclusion          is inapplicable to  any claims arising out of  the patrons' fight          because its terms  only exclude coverage  for assaults caused  by          acts or  omissions of employees.   In other words,  Tousley reads          the examples following the word  "whether" as an exhaustive list.          He argues that,  at the very least, this  provision is ambiguous,          and that under New Hampshire  law this ambiguity must be resolved          against United National.   See Hoepp v. State Farm  Ins. Co., 697                                     ___ _____    ____________________          A.2d 943, 945 (N.H. 1997).  These arguments fail.                    An insurance  policy's language  "must be accorded  its          natural and ordinary meaning."  Coakley v. Maine Bonding and Cas.                                          _______    ______________________          Co.,  618 A.2d  777, 781  (N.H.  1992) (quoting  Trombly v.  Blue          ___                                              _______     ____          Cross/Blue Shield,  423 A.2d  980, 984 (N.H.  1980)).   Tousley's          _________________          position either  reads the  word "whether"  out of  the exclusion                                         -5-          completely, or  gives it  a meaning identical  to the  word "if."          This interpretation runs against the commonly accepted meaning of          the  word "whether"  in this context.   If  one hears,  "the post          office will deliver your mail, whether it is raining or snowing,"          one will  not take this  to mean that  mail is only  delivered in          inclement weather.   Similarly, where this policy  lists specific          types  of  excluded   assaults  and  batteries  after   the  word          "whether," it does  not follow that other  assaults and batteries          are  not excluded.    Our  interpretation  of this  exclusion  is          consistent with the  only other court that we have  found to have          addressed this  question.  In  United Nat'l Ins. Co.  v. Horning,                                         _____________________     ________          Ltd., 882 F. Supp. 310  (W.D.N.Y. 1995), United National sought a          ____          declaratory judgment  under an  identical exclusion  in a  liquor          liability policy.   Horning involved an action brought  by a rape                              _______          victim  against  a  drinking  establishment  and  bartenders  for          serving  her attacker  even though  he  was under  the influence.          Rejecting a reading of the clause identical to that proposed here          by   Tousley,  the  district  court  held  that  "[t]he  specific          instances  identified  in the  clause  are  simply not  meant  to          provide an  exhaustive list of  the conduct  contemplated by  the          exclusion."  Id. at 314.  We agree.                       ___                    Furthermore,  if   Burke  is   trying  to  hold   these          defendants liable  for the actions  of a customer, his  theory of          liability  must  necessarily follow  from an  act or  omission of          Penuche's or its employees.  See, e.g., United Nat'l Ins.  Co. v.                                       ___  ____  ______________________          Waterfront New York Realty Corp.,  994 F.2d 105, 109-110 (2d Cir.          ________________________________                                         -6-          1993) citing  United Nat'l Ins. Co. v. The Tunnel, Inc., 988 F.2d                ______  _____________________    ________________          351, 354 (2d Cir. 1993) (identical assault and  battery exclusion          cannot be read to exclude only more "direct" acts or omissions of          employees as opposed to more "remote acts  of negligence" leading          to assaults  and batteries).  Therefore, the exclusion applies to          the fight in this case, and the district court erred in  adopting          Penuche's limited interpretation of this clause.                    Even  if the  policy  exclusion  covers  this  type  of          battery, however, the  exclusion only precludes recovery  in this          case if  Burke's injuries also can be said  to "arise out of" the          fight.  Under New Hampshire law, "arising out of" is a very broad          term  meaning  "originating from  or  growing out  of  or flowing          from."  Winnacunnet Coop. Sch.  Dist. v. National Union Fire Ins.                  _____________________________    ________________________          Co., 84 F.3d 32, 35 (1st Cir. 1996) (citing Merrimack  Sch. Dist.          ___                                         _____________________          v. National Sch. Bus Serv., Inc., 661 A.2d 1197, 1199 (N.H. 1995)             _____________________________          (quoting Carter  v. Bergeron,  160 A.2d 348,  353 (N.H.  1960))).                   ______     ________          While the concept  of "arising out of" is  broader than proximate          causation,  it  is not  so  broad  as  to encompass  a  "tenuous"          connection.  See Cannon v. Maine Bonding & Casualty Co., 639 A.2d                       ___ ______    ____________________________          270, 271  (N.H. 1994); Akerley  v. Hartford Ins. Group,  616 A.2d                                 _______     ___________________          511, 515 (N.H. 1992).                    United National  argues that Burke's injuries arose out          of  the  altercation  with  the  other  patron  insofar  as  that          altercation necessitated  Tousley's doomed  intervention.   While          this  argument  has  some  plausibility,  we  hold  that  Burke's          injuries cannot  be said  to "arise out  of" the  initial attack.                                         -7-          The  spinal injury  occurred when  Tousley's "bear  hug" and  his          momentum from  hurrying over  to stop the  fight caused  Burke to          fall backward,  into a  table and  onto the  floor.   All of  the          damages in this tort action  stem from a discrete intervening act          of alleged negligence, and this claim cannot be said to arise out          of earlier actions.  Tousley had a completely different objective          from  the brawling patron, and Burke's eventual injuries were not          caused by the blows he  received in the fight.  See  Winnacunnet,                                                          ___  ___________          84 F.3d at 38 (observing  that assault and battery exclusions are          intended to preclude coverage of  claims where such excluded acts          immediately cause  the injury).   This is not  a case in  which a          ___________          bartender or  bouncer joined sides  in a donnybrook.   The injury          caused by the employee in this case arose entirely out of his own          actions.                    The district  court's conclusion  that the assault  and          battery exclusion  is inapplicable  to the fight  is affirmed  on          these alternate  grounds.   See Frillz, Inc.  v. Lader,  104 F.3d                                      ___ ____________     _____          515, 516 (1st  Cir. 1997)  (reviewing court is  not bound by  the          rationale of the lower court  on summary judgment, but may affirm          "on any alternative ground made manifest by the record").                    B.  The "Bear Hug"                    B.  The "Bear Hug"                    Having  disposed  of  United National's  argument  that          Burke's  fight  precludes  coverage,  the  applicability  of  the          assault and battery exclusion hinges on whether Tousley's attempt          to  break up  the fight  itself constituted  a "battery."   Since          there is no definition of "battery" in the policy, we look to the                                         -8-          common law definition of the  term.  According to the Restatement          (Second) of Torts, an actor is liable to another for battery if:                      (a) he acts intending  to cause a harmful                      or offensive  contact with the  person of                      the  other  or  a  third  person,  or  an                      imminent apprehension of  such a contact,                      and                      (b) a harmful contact  with the person of                      the other directly or indirectly results.          Restatement  (Second) of  Torts    13  (1977).   As both  parties          acknowledge in their  briefs, the disputed issue  here is whether          Tousley had the requisite intent to cause an "offensive"  contact          with Burke.1                    United National refers this Court to section 19  of the          Restatement (Second),  which  provides that  "bodily  contact  is          offensive if it offends a  reasonable person's sense of  personal          dignity."  It argues  that Tousley's protective "bear hug"  would          offend  a reasonable  person's sense  of dignity.   We  find this          argument unpersuasive.                    Burke testified at his deposition that, from the moment          he saw Tousley  about to  grab him, he  understood Tousley to  be          acting in a  peacekeeping role.  No reasonable  person would feel          their personal dignity offended by a bartender trying  to prevent          fighting in his establishment.  This would be a different case if                                        ____________________          1   To  commit an  "assault"  under the  Restatement (Second)  of          Torts, the actor must intend to cause an imminent apprehension in          another  person of  harmful or  offensive  contact.   Restatement          (Second)  of Torts    21 (1977).  Because,  under the common law,          the  intent element of  "battery" subsumes the  intent element of          "assault," and because  neither party argues that  Tousley's bear          hug constituted  an "assault"  rather than  a "battery,"  it will          suffice to inquire whether Tousley committed a battery.                                         -9-          Tousley had hit  or pushed Burke, however, it  is undisputed that          Tousley was merely attempting to keep Burke out of harm's way.                    Professor  Prosser   offered  a   helpful  example   to          distinguish between the intentional battery and negligence:                        If  an automobile driver  runs down a man                      in the street before him, with the desire                      to hit him, or with the belief that he is                      certain to  do so,  it is  an intentional                      battery;  but if he has no such desire or                      belief, but  merely acts  unreasonably in                      failing to  guard against a risk which he                      should appreciate, it is negligence.          Prosser, Law of Torts, section 31 at 145 (4th ed. 1971).  In this          case,  Tousley's actions  were  negligent  at  most,  and  United          National's "offending dignity" argument is unavailing.             II.  The Liquor Liability Exclusion          II.  The Liquor Liability Exclusion                    United National also seeks a declaratory judgment that,          to  the extent that Burke's claims arise out of Penuche's sale or          service  of alcoholic  beverages,  coverage  is  precluded  by  a          "liquor liability"  exclusion.   This exclusion  bars claims  for          "bodily injury or  property damages for which the  insured or his          indemnitee may be held liable .  . . as a person or  organization          engaged in  the business of manufacturing,  distributing, selling          or serving alcoholic  beverages."  However, in his  Memorandum in          Support of Motion  for Summary Judgment, Burke  admitted "[t]here          is no allegation  or evidence that Tousley or  Penuche's would be          liable  for bodily  injury by  reason  of the  'violation of  any          statute,  ordinance  or  regulation' pertaining  to  the  sale of          alcohol."   In  the face  of this  concession,  United National's          request for a declaration on its "liquor  liability" exclusion is                                         -10-          superfluous.     Under  no  reasonable  construction  of  Burke's          complaint  is Penuche's  being  sued  for negligently  furnishing          alcoholic beverages.                                         -11-          III.  The Court Order to Indemnify the Insured          III.  The Court Order to Indemnify the Insured                    Finally,  United  National  argues  that  even  if  the          exclusions  do not  apply to  Burke's tort  claims,  the district          court  acted prematurely  when  it  ordered  United  National  to          indemnify the  insured before  a trial.    The insurance  company          argues  that  "[i]t  is  currently  unknown  precisely  what  the          evidence will be concerning the encounter," and that it was error          to "assume that  the evidence will be as it has been presented in          discovery."   This argument lacks  any support in  law.  The  New          Hampshire Supreme  Court, as  a matter  of course,  affirms court          orders to  indemnify that  are issued before  trial.   See, e.g.,                                                                 ___  ____          Trefethen  v. New  Hampshire Ins.  Group, 645  A.2d 72,  75 (N.H.          _________     __________________________          1994)  (affirming declaratory judgment  that insurer had  duty to          defend  and  indemnify  claims); White  Mountain  Constr.  Co. v.                                           _____________________________          Transamerica Ins. Co., 631 A.2d 907, 910 (N.H. 1993) (same).            _____________________                    If Burke prevails at trial, and we have determined that          no exclusions in the policy  apply, United National simply cannot          avoid its obligation.  Federal courts cannot limit their  rulings          in  anticipation of potential  surprise revelations during trial.          If,  in fact,  some  heretofore unanticipated  development during          trial negates the rationale of this or any judgment, the affected          party may  file a Motion  for Relief  From Judgment  or Order  in          accordance  with  Rule  60(b)  of  the  Federal  Rules  of  Civil          Procedure.  However, we will  not refrain from affirming an order          awarding indemnification for insurance claims on summary judgment          whereallavailablefactsandlawindicatethatsuchanorderisappropriate.                                         -12-                    For  the reasons  stated herein,  the  district court's          award  for  summary  judgment  and  order  for  the  defense  and          indemnification of Thomas Burke's claims is affirmed.                                                       ________                                         -13-
