MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2016	ME	181	
Docket:	   And-16-76	
Argued:	   November	9,	2016	
Decided:	  December	20,	2016	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                        BARNIE’S	BAR	&	GRILL,	INC.	
                                     	
                                    v.	
                                     	
               UNITED	STATES	LIABILITY	INSURANCE	COMPANY	
	
	
GORMAN,	J.	

      [¶1]	 	 Barnie’s	 Bar	 &	 Grill,	 Inc.,	 appeals	 from	 the	 entry	 of	 a	 summary	

judgment	 in	 the	 Superior	 Court	 (Androscoggin	 County,	 MG	 Kennedy,	 J.)	 in	

favor	of	United	States	Liability	Insurance	Company	(“USLIC”)	on	a	complaint	

by	 Barnie’s	 Bar	 seeking	 declaratory	 relief	 and	 damages	 for	 a	 breach	 of	

contract.	 	 The	 Superior	 Court	 concluded	 that	 USLIC	 had	 no	 duty	 to	 defend	

Barnie’s	Bar	in	an	underlying	negligence	action	because	policy	exclusions	for	

assault	and	battery	applied.		We	affirm	the	judgment.	

                                   I.		BACKGROUND	

      [¶2]	 	 The	 facts	 in	 this	 case	 are	 undisputed.	 	 On	 July	 14,	 2014,	 Maurice	

Beaulieu	 filed	 a	 civil	 lawsuit	 in	 the	 Superior	 Court	 seeking	 compensatory	

damages,	 interest,	 and	 costs	 from	 Barnie’s	 Bar	 in	 Lewiston	 for	 its	 alleged	
2	

negligence.		In	his	complaint,	Beaulieu	alleged	that	he	“was	violently	attacked	

by	a	group	of	[other]	patrons”	while	he	“was	a	customer,	licensee	and	invitee”	

at	 the	 bar.	 	 He	 asserted	 that	 Barnie’s	 Bar	 was	 liable	 for	 the	 attack	 for	 two	

reasons.	 	 First,	 Beaulieu	 contended	 that,	 although	 Barnie’s	 Bar	 “had	 general	

and	 specific	 notice	 of	 the	 risk	 that	 an	 assault	 was	 imminent,”	 Barnie’s	 Bar	

breached	its	duty	of	care	to	prevent	or	interfere	with	the	assault	by	“failing	to	

summons	law	enforcement	and	otherwise	failing	to	interfere	with	the	assault	

and	battery.”		Second,	Beaulieu	claimed	that	Barnie’s	Bar	breached	its	duty	of	

care	 “not	 to	 create	 a	 dangerous	 circumstance	 on	 its	 premises”	 by	

“affirmatively	ejecting”	him	and	his	assailants	into	the	parking	lot	at	the	same	

time.	

         [¶3]	 	 At	 all	 relevant	 times,	 Barnie’s	 Bar	 held	 an	 insurance	 policy	 from	

USLIC	 that	 included	 both	 commercial	 general	 liability	 and	 liquor	 liability	

coverage.	 	 Both	 coverage	 portions,	 however,	 contained	 comprehensive	

exclusions	for	assault	and	battery.		The	commercial	general	liability	coverage,	

in	relevant	part,	excluded	

         Any	 claim,	 demand	 or	 “suit”	 based	 upon	 any	 actual	 or	 alleged	
         “assault”	or	“battery”,	or	out	of	any	act	or	omission	in	connection	
         with	 the	 prevention	 or	 suppression	 of	 any	 “assault”	 or	 “battery”	
         .	.	.	 whether	 caused	 by	 or	 at	 the	 instigation	 or	 direction	 of	 an	
         insured,	 its	 “employees”,	 agents,	 officers	 or	 directors,	 patrons	 or	
         any	other	person.		Further,	no	coverage	is	provided	for	any	claim,	
                                                                                          3	

      demand	 or	 “suit”	 in	 which	 the	 underlying	 operative	 facts	
      constitute	“assault”	or	“battery”.	
      	
      This	exclusion	applies	to	all	“bodily	injury”,	“property	damage”	or	
      “personal	 and	 advertising	 injury”	 sustained	 by	 any	 person,	
      including	 emotional	 distress	 and	 mental	 anguish,	 arising	 out	 of,	
      directly	or	indirectly	resulting	from,	in	consequence	of,	or	in	any	
      way	 involving	 “assault”	 or	 “battery”	 whether	 alleged,	 threatened	
      or	actual	including	but	not	limited	to	“assault”	or	“battery”	arising	
      out	 of	 or	 caused	 in	 whole	 or	 in	 part	 by	 negligence	 or	 other	
      wrongdoing	with	respect	to:	
      	
      .	.	.	.	
      	
      b.	 investigation	 or	 reporting	 any	 “assault”	 or	 “battery”	 to	 the	
      proper	authorities;	or	
      	
      c.	the	failure	to	so	report	or	the	failure	to	protect	any	person	while	
      that	person	was	in	the	care,	custody	or	control	of	the	insured,	its	
      “employees”,	agents,	officers	or	directors;	
      	
      .	.	.	.	
      	
The	 assault	 and	 battery	 exclusion	 in	 the	 liquor	 liability	 portion	 of	 the	 policy	

was	similarly	comprehensive.		

       [¶4]		After	Barnie’s	Bar	requested	that	USLIC	defend	it	in	the	Beaulieu	

litigation,	 the	 insurer	 declined	 to	 defend	 the	 bar	 relying	 on	 the	 policy’s	

exclusions	for	assault	and	battery.		Barnie’s	Bar	then	sued	USLIC	in	Superior	

Court,	seeking	a	declaratory	judgment	that	USLIC	had	a	duty	to	defend	it	in	the	

Beaulieu	litigation	and	seeking	damages	for	a	breach	of	contract.		Barnie’s	Bar	

and	 USLIC	 filed	 cross-motions	 for	 summary	 judgment	 on	 a	 joint	 stipulated	
4	

record.		See	M.R.	Civ.	P.	56.		Concluding	that	USLIC	had	no	contractual	duty	to	

defend	 Barnie’s	 Bar,	 the	 court	 granted	 USLIC’s	 motion	 and	 denied	 Barnie’s	

Bar’s	motion	for	summary	judgment.		Barnie’s	Bar	appealed.	

                                   II.		DISCUSSION	

	     [¶5]	 	 We	 review	 a	 ruling	 on	 a	 motion	 for	 summary	 judgment	 de	 novo	

and	 analyze	 an	 insurer’s	 duty	 to	 defend	 as	 a	 question	 of	 law.	 	 Mitchell	 v.	

Allstate	Ins.	Co.,	2011	ME	133,	¶	8,	36	A.3d	876.		Because	there	is	no	dispute	of	

material	fact	in	this	case,	we	need	address	only	whether	USLIC	had	a	duty	to	

defend	Barnie’s	Bar	in	the	Beaulieu	litigation	as	a	matter	of	law.	

A.	   The	Duty	to	Defend	

      [¶6]	 	 To	 determine	 whether	 an	 insurer	 is	 contractually	 obligated	 to	

defend	an	insured	in	an	underlying	lawsuit,	we	have	long	employed	the	aptly	

named	 “comparison	 test,”	 in	 which	 we	 compare	 the	 allegations	 in	 the	

underlying	 complaint	 with	 the	 terms	 of	 the	 applicable	 insurance	 policy	 to	

determine	 whether	 the	 complaint	 falls	 within	 the	 policy’s	 coverage.		

Id.	¶¶	9-10.	 	 We	 have	 consistently	 applied	 a	 broad	 construction	 of	 the	

underlying	complaint	in	favor	of	the	insured	and	a	strict	construction	of	policy	

exclusions	 and	 ambiguities	 against	 the	 insurer.	 	 See	 id.	¶	11;	 Elliott	 v.	

Hanover	Ins.	Co.,	1998	ME	138,	¶	7,	711	A.2d	1310;	Union	Mut.	Fire	Ins.	Co.	v.	
                                                                                       5	

Commercial	 Union	 Ins.	 Co.,	 521	A.2d	308,	 311	 (Me.	 1987).	 	 Our	 body	 of	 case	

law	should	not,	however,	be	misread	as	obliging	courts	to	conjure	the	duty	to	

defend	 from	 speculation	 or	 supposition.	 	 See	 York	 Golf	 &	 Tennis	 Club	 v.	

Tudor	Ins.	 Co.,	 2004	ME	52,	 ¶	 8,	 845	A.2d	 1173	 (“[In	 determining	 the	 duty	 to	

defend,]	 we	 do	 not	 speculate	 about	 causes	 of	 action	 that	 were	 not	 stated.”);	

see	also	 14	Lee	R.	Russ	 &	 Thomas	F.	 Segalla,	 Couch	 on	 Insurance	 §	 200:19	 at	

200-33	(3d	ed.	2005)	(stating	that	the	duty	to	defend	“cannot	be	triggered	by	

mere	speculation	that	additional	facts	or	causes	of	action	will	be	developed	at	

a	 later	 time”).	 	 Although	 the	 duty	 to	 defend	 is	 broad,	 “[a]n	 insurer	 may	

properly	refuse	to	defend	a	policyholder	if	the	allegations	of	the	complaint	fall	

entirely	within	a	policy	exclusion.”		Mitchell,	2011	ME	133,	¶	13,	36	A.3d	876.			

      [¶7]	 	 In	 applying	 the	 comparison	 test,	 we	 examine	 the	 underlying	

complaint	for	any	potential	factual	or	legal	basis	that	may	obligate	the	insurer	

to	defend	the	insured,	id.	¶	10,	even	the	mere	“intent	to	state	a	claim	within	

the	insurance	coverage,”	Lavoie	v.	Dorchester	Mut.	Fire	Ins.	Co.,	560	A.2d	570,	

571	 (Me.	 1989).	 	 We	 confine	 this	 examination	 to	 the	 language	 of	 the	

underlying	complaint.		Mitchell,	2011	ME	133,	¶	9,	36	A.3d	876;	Hardenbergh	

v.	 Patrons	 Oxford	 Ins.	 Co.,	 2013	 ME	 68,	 ¶	13,	 70	 A.3d	 1237	 (“[T]he	 duty	 to	

defend	 arises	 exclusively	 from	 the	 allegations	 in	 the	 complaint	 and	 the	
6	

language	of	the	policy.”).		Except	in	rare	circumstances,	see	State	Mut.	Ins.	Co.	v.	

Bragg,	589	A.2d	35,	37	(Me.	1991),	we	will	not	consider	facts	extrinsic	to	the	

underlying	 complaint	 nor	 will	 we	 read	 allegations	 into	 the	 complaint	 in	

determining	whether	the	insurer	has	a	duty	to	defend,	see	York	Ins.	Grp.	of	Me.	

v.	Lambert,	1999	ME	173,	¶¶	4-5,	740	A.2d	984;	Penney	v.	Capitol	City	Transfer,	

1998	ME	44,	¶¶	6-7,	707	A.2d	387;	Horace	Mann	Ins.	Co.	v.	Me.	Teachers	Ass’n,	

449	A.2d	358,	360-61	(Me.	1982).		

B.	    The	USLIC	Policy	and	the	Beaulieu	Complaint	

       [¶8]		Applying	the	comparison	test	to	the	instant	case,	we	are	faced	with	

policy	exclusions	that	are	so	broadly	written	and	an	underlying	complaint	that	

is	 so	 narrowly	 drafted	 that	 there	 are	 simply	 no	 intersections	 between	 the	

policy	and	the	complaint	in	which	to	find	coverage.		Barnie’s	Bar’s	policy	with	

USLIC	contained	comprehensive	exclusions	for	claims	“based	upon	any	actual	

or	alleged	‘assault’	or	‘battery’,	or	.	.	.	any	act	or	omission	in	connection	with	

the	prevention	or	suppression	of	any	‘assault’	or	‘battery’	.	.	.	whether	caused	

by	 .	.	.	 an	 insured,	 its	 ‘employees’,	 .	 .	 .	 patrons	 or	 any	 other	 person”	 and	 “any	

‘suit’	in	which	the	underlying	operative	facts	constitute	‘assault’	or	‘battery.’”		

The	only	allegations	of	fact	and	law	found	in	the	Beaulieu	complaint	relate	to	

the	 assault	 and	 battery	 on	 the	 bar’s	 premises.	 	 Even	 liberally	 construing	 the	
                                                                                        7	

Beaulieu	complaint	in	favor	of	Barnie’s	Bar,	there	is	no	allegation—or	even	the	

hint	 of	 an	 intent	 to	 state	 an	 allegation—that	 escapes	 the	 USLIC	 policy’s	

exclusions	for	assault	and	battery.	

      [¶9]	 	 Although	 Barnie’s	 Bar	 urges	 us	 to	 conclude	 that	 Beaulieu’s	

allegation	 that	 the	 bar	 breached	 a	 duty	 of	 care	 “not	 to	 create	 a	 dangerous	

circumstance	on	its	premises”	is	an	allegation	of	general	negligence	pursuant	

to	 which	 Beaulieu	 might	 prove	 facts	 that	 fall	 within	 the	 policy’s	 coverage	 at	

trial,	 we	 cannot	 do	 so.	 	 The	 very	 next	 paragraph	 of	 the	 Beaulieu	 complaint	

alleges	 that	 “Barnie’s	 breached	 that	 duty	 of	 care”	 (emphasis	 added)	 by	

simultaneously	 ejecting	 Beaulieu	 and	 his	 assailants	 into	 the	 parking	 lot,	

leaving	no	doubt	that	the	“dangerous	circumstance”	on	the	premises	was	the	

attack rather	than	some	action	or	hidden	defect	or	condition	unmentioned	in	

the	 complaint.	 	 As	 we	 have	 stated,	 the	 comparison	 test	 is	 limited	 to	 the	

language	 of	 the	 underlying	 complaint	 and	 the	 insurance	 policy.	 	 See	Elliott,	

1998	ME	138,	¶¶	6-7,	711	A.2d	1310.		Just	as	we	cannot	read	extrinsic	facts	or	

allegations	 into	 an	 underlying	 complaint	 in	 the	 comparison	 test,	 we	 cannot	

selectively	read	facts	or	allegations	out	of	that	complaint	in	order	to	conclude	

that	the	insurer	has	a	duty	to	defend,	and	we	will	not	do	so	in	this	instance.	
8	

	         [¶10]	 	 Because	 the	 allegations	 of	 the	 Beaulieu	 complaint	 fall	 squarely	

within	the	policy’s	exclusions	for	assault	and	battery,	we	conclude	that	USLIC	

was	not	obligated	to	defend	Barnie’s	Bar	in	that	litigation.1	

          The	entry	is:	

                            Judgment	affirmed.		
	
	     	     	     	       	     	
	
Marc	 N.	 Frenette,	 Esq.	 (orally),	 Trafton,	 Matzen,	 Belleau	 &	 Frenette,	 LLP,	
Auburn,	for	appellant	Barnie’s	Bar	and	Grill,	Inc.	
	
Robert	C.	Hatch,	Esq.,	and	Hillary	J.	Bouchard,	Esq.	(orally),	Thompson,	Bowie	
&	 Hatch,	 LLC,	 Portland,	 for	 appellee	 United	 States	 Liability	 Insurance	
Company	
	
	
Androscoggin	County	Superior	Court	docket	number	CV-2015-36	
FOR	CLERK	REFERENCE	ONLY	




     1	 	 On	 appeal,	 Barnie’s	 Bar	 also	 contends	 that	 a	 duty	 to	 defend	 arises	 from	 assault	 and	 battery	

coverage	that	it	acquired	from	USLIC	after	the	events	alleged	in	the	Beaulieu	complaint.		We	are	not	
persuaded	by	this	argument	and	do	not	discuss	it	further.	
