claim by third party against insured for injuries which third party sustained when he allegedly was struck, pushed or physically assaulted by employees or agents of insured was for the result of an assault; therefore insurer owed insured no duty to defend where language of assault and battery exclusion contained in liability policy was clear and 13 unambiguous in providing that coverage did not extend to bodily injury or property damage arising out of assault or battery
How later courts described this case
- claim by third party against insured for injuries which third party sustained when he allegedly was struck, pushed or physically assaulted by employees or agents of insured was for the result of an assault; therefore insurer owed insured no duty to defend where language of assault and battery exclusion contained in liability policy was clear and 13 unambiguous in providing that coverage did not extend to bodily injury or property damage arising out of assault or battery
- "[I]t is necessary to focus on the basis for the injury and not the nomenclature of the underlying claim in order to determine whether coverage exists."
- assault and battery exclusion barred coverage for injuries to third person allegedly struck by employees of the insured “regardless of the label, be it negligence or intentional tort”
- whether coverage exists is based on the injury not the nomenclature of the underlying claim
Written by the judges who cited it.
The opinion
Wahls, J.
(dissenting). On the record before us, I cannot determine whether Virta simply labeled his claim as a negligence count to avoid the assault or battery exclusions of the insurance contract or whether some facts are available which tend to establish a causal nexus between the employer’s conduct and Virta’s injury. Therefore, summary judgment of declaratory relief for the insurer under GCR 1963, 117.2(2) is inappropriate, and I must dissent.
Language similar to that employed in the insurance exclusion at issue here has been interpreted by the federal courts under the assault and battery exception to the general waiver of sovereign immunity found in the Federal Tort Claims Act, 28 USC 2680(h). See Collins v United States, 259 F Supp 363 (ED P, 1966); Gibson v United States, 457 F2d 1391 (CA 3, 1972); and Liuzzo v United States, 508 F Supp 923 (ED Mich, 1981). Although these cases reach conflicting results, the ability of a plaintiff to come forward with factual allegations which show a substantial nexus between government negligence and the injury sustained emerges as the paramount concern for determination of liability. Where the inference of negligence is strong, the courts are more reluctant to find that the injury arises out of the assault or battery. I would employ this rationale in the case sub judice.
Federal decisions are persuasive but not binding upon this Court for purposes of interpreting Michigan law. Knight v City of Tecumseh, 63 Mich App *509 215, 219 ; 234 NW2d 457 (1975). There are reasons for caution in assessing the value of these cases for guidance in resolving the instant appeal. The federal law- in question excepts a narrow area of potential government liability from the general waiver of sovereign immunity, and reflects a congressional directive which should be precisely followed. Builders Corp of America v United States, 320 F2d 425 (CA 9, 1963), cert den 376 US 906 ; 84 S Ct 660 ; 11 L Ed 2d 606 (1964). While the benefit of the doubt goes to the government in the federal cases, it goes to the insured in the case at bar. The majority opinion sets forth the duty of the insurer to clearly express the limitations on and exclusions from coverage and also sets forth the principle that any ambiguity will be resolved in favor of coverage. Since this is also a duty to defend case, the insurer carries the additional burden of showing that the allegations in Virta’s complaint do not even arguably come within the policy coverage.
The negligence theory presented here, failure to train and supervise employees, is not excluded from coverage by the policy. In order to prevail, Virta must prove negligence in the conduct and business practices of the employer in addition to proving the resulting injury by an assault or battery. Since Virta’s ability to show that his injuries arose out of employer negligence cannot be ascertained until discovery has been completed, the insurer should defend until it can convince the trial court that the negligence claim lacks enough vitality to survive the assault or battery exclusion. At that time, a motion for summary judgment under GCR 1963, 117.2(3) would be appropriate.
The majority analysis would be more convincing if the issue were policy coverage rather than duty to defend the claim. Where the ability of a party *510 to prove negligence necessarily turns on facts in the control of an adversary, considerations of fairness require that an insurer with potential liability defend the claim through the discovery process. Summary judgment is inappropriate where an insufficient factual basis exists to decide whether claims are in fact covered by the policy in question. Reurink Bros Star Silo, Inc v Maryland Casualty Co, 131 Mich App 139, 147 ; 345 NW2d 659 (1983).
The order granting summary judgment should be reversed and the case remanded for further proceedings.