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December 16, 2022
Assault & Battery Limit Affirmed

Insurer's $25,000 Assault and Battery Limit Applied to Stabbing on Hotel Property

Barry Zalma

Read the full article at https://lnkd.in/gf5k5AAH and see the full video at https://lnkd.in/gSj4MpCw and at https://lnkd.in/gVKpBcGZ and https://zalma.com/blog plus more than 4400 posts.

FACTS

Great American E & S Insurance Company obtained a trial court judgment that it is only obligated to provide coverage up to an assault and battery limit of $25,000 under a policy of insurance issued to the defendant Commack Hotel, LLC, doing business as Howard Johnson, in an underlying action where Stanley Earl Davis, Jr. was stabbed to death at the hotel property.

In Great American E & S Insurance Company v. Commack Hotel, LLC, etc., et al., Stanley Davis, etc., No. 2019-13798, Index No. 615088/16, 2022 NY Slip Op 06915, Supreme Court of New York, Second Department (December 7, 2022) the appellate court resolved the dispute.

Stanley Davis appealed from an order of the Supreme Court, Suffolk County (David T. Reilly, J.), dated October 21, 2019. The order granted the plaintiff's motion for summary judgment on the complaint and the plaintiff appealed

On November 13, 2010, the defendant Stanley Davis's son (hereinafter the decedent) was stabbed to death by the defendant Carlos Rodriguez during a party in a room at a hotel owned by the defendant Commack Hotel, LLC, doing business as Howard Johnson (hereinafter Howard Johnson).

In an underlying action entitled Davis v Commack Hotel, LLC, the defendant Stanley Davis, as administrator of the decedent's estate, was awarded summary judgment on the issue of liability against, among others, Howard Johnson, the plaintiff's insured.

Following that determination, the plaintiff commenced this action for a judgment declaring that it owes no obligation to indemnify Howard Johnson in excess of $25,000 under the assault and battery limits of liability endorsement of its insurance policy and moved for summary judgment on the complaint.

In an order dated October 21, 2019, the Supreme Court granted the plaintiff's motion, finding that the plaintiff's obligation to pay damages on behalf of Howard Johnson in connection with the underlying action was limited to the assault and battery sublimit set forth in the endorsement.

DUTY TO DEFEND

The duty to defend is triggered whenever the allegations of a complaint, liberally construed, suggest a reasonable possibility of coverage, or the insurer has actual knowledge of facts establishing a reasonable possibility of coverage. An insurance carrier can be relieved of its duty to defend if it establishes, as a matter of law, that there is no possible factual or legal basis on which it might eventually be obligated to indemnify its insured under any policy provision. Policy exclusions are subject to strict construction and must be read narrowly, and any ambiguities in the insurance policy are to be construed against the insurer. However, unambiguous provisions of insurance contracts will be given their plain and ordinary meaning.

An exclusion for assault and/or battery applies if no cause of action would exist but for the assault and/or battery. The appellate court determined that negligence claims arising from an assault and battery also fall under assault and battery endorsements that limit coverage for damages.

Here, the plaintiff established its prima facie entitlement to judgment as a matter of law by demonstrating that the assault and battery endorsement's limitation is applicable to the claims asserted against Howard Johnson by Davis in the underlying action.

Accordingly, the trial court, the Supreme Court, properly granted the plaintiff's motion for summary judgment on the complaint, which sought a judgment declaring that the plaintiff is only obligated to provide insurance coverage up to a limit of $25,000 under the policy in the underlying action.

ZALMA OPINION

Most insurers of public properties will exclude defense or indemnity for an assault or battery. Some, attempting to provide better coverage will insure against claims of assault and/or battery but limit the amount the insurer is willing to pay to indemnify its insured. Commack Hotel, LLC, doing business as Howard Johnson obtained a policy with a $25,000 limit. The appellate court agreed that the limitation was appropriate and enforceable.

(c) 2022 Barry Zalma & ClaimSchool, Inc.

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Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and [email protected]

Write to Mr. Zalma at [email protected]; http://www.zalma.com; http://zalma.com/blog; daily articles are published at 
Zalma on Insurance
Insurance, insurance claims, insurance law, and insurance fraud .
By Barry Zalma

Write to Mr. Zalma at [email protected]; http://www.zalma.com; http://zalma.com/blog; daily articles are published at 
Zalma on Insurance

Insurance, insurance claims, insurance law, and insurance fraud .

By Barry Zalma

Go to the podcast Zalma On Insurance at https://anchor.fm/barry-zalma; Follow Mr. Zalma on Twitter at https://twitter.com/bzalma; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims-library.

Subscribe and receive videos limited to subscribers of Excellence in Claims Handling at locals.com https://lnkd.in/gfFKUaTf.

Go to substack at https://lnkd.in/gEEnV7Dd Consider subscribing to my publications at substack at https://lnkd.in/gEEnV7Dd.

Barry Zalma, Esq., CFE, is available at http://www.zalma.com and [email protected]

/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – https://lnkd.in/gWVSBde.

Videos at Rumble.com at https://lnkd.in/gV9QJYH; Go to the Insurance Claims Library – https://lnkd.in/gWVSBde.

00:06:20
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Southern Insurance Company Of Virginia v. Justin D. Mitchell, et al., No. 3:24-cv-00198, United States District Court, M.D. Tennessee, Nashville Division (October 10, 2024) Southern Insurance Company of Virginia sought a declaratory judgment regarding its duty to defend William Mitchell in a wrongful death case pending in California state court.

KEY POINTS

1. Motion for Judgment on the Pleadings: The Plaintiff moved for judgment on the pleadings, which was granted in part and denied in part.
2. Duty to Defend: The court found that the Plaintiff has no duty to defend William Mitchell in the California case due to a specific exclusion in the insurance policy.
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No Good Deed Goes Unpunished

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Post 5119

Default of Settlement Agreement Reduced to Judgment

In Government Employees Insurance Company, Geico Indemnity Company, Geico General Insurance Company, and Geico Casualty Company v. Dominic Emeka Onyema, M.D., DEO Medical Services, P.C., and Healthwise Medical Associates, P.C., No. 24-CV-5287 (PKC) (JAM), United States District Court, E.D. New York (July 9, 2025)

Plaintiffs Government Employees Insurance Company and other GEICO companies (“GEICO”) sued Defendants Dominic Emeka Onyema, M.D. (“Onyema”), et al (collectively, “Defendants”) alleging breach of a settlement agreement entered into by the parties to resolve a previous, fraud-related lawsuit (the “Settlement Agreement”). GEICO moved the court for default judgment against ...

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July 15, 2025
Zalma’s Insurance Fraud Letter – July 15, 2025

ZIFL – Volume 29, Issue 14
Post 5118

See the full video at https://lnkd.in/geddcnHj and at https://lnkd.in/g_rB9_th, and at https://zalma.com/blog plus more than 5100 posts.

You can read the full 20 page issue of the July 15, 2025 issue at https://lnkd.in/giaSdH29

THE SOURCE FOR THE INSURANCE FRAUD PROFESSIONAL

This issue contains the following articles about insurance fraud:

The Historical Basis of Punitive Damages

It is axiomatic that when a claim is denied for fraud that the fraudster will sue for breach of contract and the tort of bad faith and seek punitive damages.

The award of punitive-type damages was common in early legal systems and was mentioned in religious law as early as the Book of Exodus. Punitive-type damages were provided for in Babylonian law nearly 4000 years ago in the Code of Hammurabi.

You can read this article and the full 20 page issue of the July 15, 2025 issue at https://zalma.com/blog/wp-content/uploads/2025/07/ZIFL-07-15-2025.pdf

Insurer Refuses to Submit to No Fault Insurance Fraud

...

00:08:27
July 16, 2025
There is no Tort of Negligent Claims handling in Alaska

Rulings on Motions Reduced the Issues to be Presented at Trial

Read the full article at https://lnkd.in/gwJKZnCP and at https://zalma/blog plus more than 5100 posts.

CASE OVERVIEW

In Richard Bernier v. State Farm Mutual Automobile Insurance Company, No. 4:24-cv-00002-GMS, USDC, D. Alaska (May 28, 2025) Richard Bernier made claim under the underinsured motorist (UIM) coverage provided in his State Farm policy, was not satisfied with State Farm's offer and sued. Both parties tried to win by filing motions for summary judgment.

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Bernier was involved in an auto accident on November 18, 2020, and sought the maximum available UIM coverage under his policy, which was $50,000. State Farm initially offered him $31,342.36, which did not include prejudgment interest or attorney fees.

Prior to trial Bernier had three remaining claims against State Farm:

1. negligent and reckless claims handling;
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May 15, 2025
Zalma's Insurance Fraud Letter - May 15, 2025

ZIFL Volume 29, Issue 10
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See the full video at https://lnkd.in/gK_P4-BK and at https://lnkd.in/g2Q7BHBu, and at https://zalma.com/blog and at https://lnkd.in/gjyMWHff.

Zalma’s Insurance Fraud Letter (ZIFL) continues its 29th year of publication dedicated to those involved in reducing the effect of insurance fraud. ZIFL is published 24 times a year by ClaimSchool and is written by Barry Zalma. It is provided FREE to anyone who visits the site at http://zalma.com/zalmas-insurance-fraud-letter-2/ You can read the full issue of the May 15, 2025 issue at http://zalma.com/blog/wp-content/uploads/2025/05/ZIFL-05-15-2025.pdf
This issue contains the following articles about insurance fraud:

Health Care Fraud Trial Results in Murder for Hire of Witness

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Professional Health Care Services Exclusion Effective

Post 5073

See the full video at https://lnkd.in/g-f6Tjm5 and at https://lnkd.in/gx3agRzi, and at https://zalma.com/blog plus more than 5050 posts.

This opinion is the recommendation of a Magistrate Judge to the District Court Judge and involves Travelers Casualty Insurance Company and its duty to defend the New Mexico Bone and Joint Institute (NMBJI) and its physicians in a medical negligence lawsuit brought by Tervon Dorsey.

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