                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                   FILED
                                                          U.S. COURT OF APPEALS
                                No. 06-10599                ELEVENTH CIRCUIT
                                                                JULY 18, 2006
                            Non-Argument Calendar
                                                             THOMAS K. KAHN
                          ________________________
                                                                   CLERK

                   D. C. Docket No. 05-00135-CV-5-RH-WCS

COLONY INSURANCE CO.,

                                                        Plaintiff-Appellant,

                                      versus

GEORGE BARNES, SR.,
individually, d.b.a. Dreamland Inn,
FRANK BROWN, et al.,

                                                        Defendants-Appellees.

                          ________________________

                   Appeal from the United States District Court
                       for the Northern District of Florida
                         _________________________


                                 (July 18, 2006)


Before BLACK, CARNES and PRYOR, Circuit Judges.

PER CURIAM:
        Colony Insurance Co. (Colony) appeals the district court’s grant of partial

summary judgment to George Barnes, Sr., in which the district court concluded

Colony has a duty to defend Barnes in a wrongful death lawsuit. The district court

did not err, and we affirm.

                                I. BACKGROUND

        Barnes is the owner and operator of Dreamland Inn, a nightclub located in

Greenwood, Florida. On or about May 29, 2004, Faheem Brown was on the

premises of Dreamland Inn when other patrons of the nightclub began firing guns

in the parking lot area. Faheem Brown was hit in the chest by a stray bullet and

died.

        Frank Brown and Dora Witherspoon were appointed as co-personal

representatives of the estate of Faheem Brown, and filed a wrongful death action

against Barnes in Florida state court. The complaint alleges Barnes negligently

failed to:

        a.    suppress or prevent his patrons from recklessly shooting firearms on
              the premises;

        b.    provide an environment safe from firearm usage by patrons in and
              around the premises of DREAMLAND INN;

        c.    hire, supervise, or train security or off-duty law enforcement to patrol
              the premises of DREAMLAND INN; and



                                           2
      d.    warn patron FAHEEN S. BROWN of a known likelihood of firearm
            usage on the premises of DREAMLAND INN, an ultra-hazardous
            activity that has routinely and repeatedly occurred on the premises
            over the course of a number of years.

The complaint alleges the insured’s “careless, reckless, and negligent” operation

of the nightclub caused this “ultra hazardous environment.”

      Barnes and Dreamland Inn are insured with Colony. The Colony insurance

policy provides for coverage of any lawsuit seeking damages for bodily injury,

including death, arising from an occurrence, which is defined as “an accident,

including continuous or repeated exposure to substantially the same general

harmful conditions.” The Colony policy further contains an assault and battery

exclusion. The exclusion applies to lawsuits seeking damages arising out of or

resulting from:

      (1)   Assault and Battery committed by any person;

      (2)   The failure to suppress or prevent assault and battery by any person;

      (3)   The failure to provide an environment safe from assault and battery or
            failure to warn of the dangers of the environment which could
            contribute to assault and battery;

      (4)   The negligent hiring, supervision, or training of any person;

      (5)   The use of an force to protect persons or property whether or not the
            “bodily injury” or “property damage” was intended from the
            standpoint of the insured or committed by or at the direction of the
            insured.

                                         3
      In Colony’s summary judgment motion, Colony asserted the shooting was

excluded from coverage by the assault and battery exclusion. Specifically, the

district court disagreed because the complaint in the wrongful death action alleged

an action that was not an assault and battery. The district court held that assault

and battery under Florida law requires intent, and the complaint alleges a gun was

fired but does not specify whether the shooter did or did not threaten or intend to

hit anyone. The shooting thus did not fit into the assault and battery exclusion for

duty to defend purposes.

      Colony appeals, asserting the shooting was excepted by the assault and

battery exclusion, and, therefore, the district court erred in determining Colony

owed Barnes a duty to defend the wrongful death case.

                                       II. DISCUSSION

      “In determining whether a duty to defend exists, the trial court is confined to

the allegations in the complaint.” State Farm Fire and Cas. Co. v. Tippett, 864

So. 2d 31, 33 (Fla. 4th DCA 2003).1 “The trial court is restricted to the allegations

set forth in the complaint, regardless of what the insured or others say actually

happened.” Id.




      1
          The parties do not dispute that Florida law applies to this case.

                                                  4
      Assault and battery are not defined in the policy, but are defined under

Florida law. “An assault is any intentional, unlawful offer of corporeal injury to

another by force, or force unlawfully directed toward the person of another, under

such circumstances as to create a well-founded fear of imminent peril, coupled

with the apparent present ability to effectuate the attempt if not prevented.” Winn

& Lovett Grocery Co. v. Archer, 171 So. 214, 217 (Fla. 1936) (emphasis added).

“A battery consists of the infliction of a harmful or offensive contact upon another

with the intent to cause such contact or the apprehension that such contact is

imminent.” Paul v. Holbrook, 696 So. 2d 1311, 1312 (Fla. 5th DCA 1997)

(emphasis added).

      We conclude the district court did not err in determining the complaint

alleged an action that was not an assault and battery. The wrongful death

complaint does not allege the shooter intended to create a well-founded fear of

imminent peril, or that anyone had a well-founded fear of imminent peril.

Similarly, the wrongful death complaint does not allege the shooter intended to hit

Faheem Brown or anyone else. From the allegations in the complaint, the shooter

may have discharged the gun intending not to make anyone apprehensive and

intending not to hit anyone.



                                         5
      Colony relies on Florida cases in which courts have found the insurer has no

duty to defend the insured. These cases can be distinguished from the present

case. In Miami Beach Entm’t, Inc. v. First Oak Brook Corp. Syndicate, 682 So. 2d

161, 162 (Fla. 3d DCA 1996), the assault and battery exclusion precluded

coverage for harmful or offensive contact between two or more persons regardless

of intent. There is no such language in Colony’s policy. In Britamco

Underwriter’s, Inc. v. Zuma Corp., 576 So. 2d 965, 965 (Fla. 5th DCA 1991), the

plaintiff’s claim of negligence in failing to provide adequate security at a bar arose

from a beating inflicted by other bar patrons–clearly an intentional act. Similarly,

in Perrine Food Retailers, Inc. v. Odyssey Re (London) Ltd., 721 So. 2d 402, 403

n.1 (Fla. 3d DCA 1998), also involving a clearly intentional act, the complaint

alleged the plaintiff was attacked, assaulted and robbed by assailants, one of whom

slashed the plaintiff’s face with a knife.




                                             6
       We conclude the complaint does not allege any intent; thus, the assault and

battery exclusion does not apply, and Colony has a duty to defend Barnes.2

       AFFIRMED.




       2
          Additionally, we reject Colony’s other arguments on appeal. First, Colony asserts the
shooter’s intent was transferred from another victim to Faheem Brown. The complaint alleges no
intent, thus intent could not have been transferred. Second, Colony asserts coverage only exists
for accidents, and the shooting could not have been an accident. We disagree. The wrongful
death complaint does not allege an intentional act, and an accidental shooting would qualify as an
occurrence under the policy.

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