KELLY R. PATTERSON AND JAMES W. HEMMELMAN, JR. v. NORTHFIELD INSURANCE COMPANY; BABY BOOMERS, INC.; KEN STILLMAN, JR.; LINDA STILLMAN; AND THOMAS FINDLEY, JR.
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RENDERED: November 22, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002616-MR
KELLY R. PATTERSON AND
JAMES W. HEMMELMAN, JR.
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH McDONALD-BURKMAN, JUDGE
ACTION NO. 99-CI-001284
v.
NORTHFIELD INSURANCE COMPANY;
BABY BOOMERS, INC.; KEN STILLMAN,
JR.; LINDA STILLMAN; AND
THOMAS FINDLEY, JR.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, KNOPF, AND MCANULTY, JUDGES.
DYCHE, JUDGE.
Kelly Patterson and James Hemmelman, Jr., appeal
from an order of the Jefferson Circuit Court granting Northfield
Insurance Company's motion for declaratory judgment.
We affirm.
Baby Boomers, Inc., d/b/a Gaslite Tavern, is a Kentucky
corporation with its principal place of business in Louisville,
Kentucky.
Ken and Linda Stillman are the owners and operators of
the Gaslite Tavern, a bar and lounge located in Louisville.
On
December 31, 1997, Patterson, Hemmelman, and James Findley were
patrons of Gaslite Tavern.
During the course of the evening,
Findley allegedly fell well under the influence of alcohol and
became boisterous.
Patterson stated that Linda Stillman asked
him to "take care of" and "keep an eye on" the situation until
the police arrived.
Findley, however, struck both Patterson and
Hemmelman with a knife.
On December 22, 1998, Patterson and Hemmelman filed an
action against Baby Boomers, Inc., d/b/a Gaslite Tavern, the
Stillmans, and Findley for damages resulting from their injuries.
They alleged that Gaslite and the Stillmans were negligent in
continuing to serve alcohol to Findley after he became
intoxicated; that Gaslite and the Stillmans failed in their duty
to protect them from Findley's violent conduct; and that Findley
willfully committed battery against them.
On March 4, 1999, Northfield Insurance Company filed a
declaratory judgment action in Jefferson Circuit Court, naming
all parties to the underlying action as defendants.
Northfield
requested that pursuant to exclusions contained in the insurance
policy it had issued to Baby Boomers, Inc., the court declare
that Northfield had no duty to provide a defense or coverage in
the action brought by Patterson and Hemmelman.
Baby Boomers, the
Stillmans, and Findley failed to respond, and the court entered a
default judgment against them on April 27, 1999.
Northfield filed a motion for declaratory judgment on
May 21, 1999.
Patterson and Hemmelman responded by arguing that
the assault and battery exclusion and the liquor exclusion were
not incorporated into the original insurance contract; therefore
they were not part of the policy and may not be relied upon by
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either Baby Boomers or Northfield.
The circuit court ruled that
the policy and the exclusions were in effect at the time of the
altercation and were enforceable, and granted Northfield's motion
for declaratory judgment.
This appeal followed.
Patterson and Hemmelman correctly note that the
threshold question for this Court is whether the endorsements
were made a part of the policy from its inception.
the trial court that they were.
We agree with
The "Exclusion — Assault or
Battery" endorsement (S23-CG [R 6/94]) and the "Exclusion —
Liquor — Absolute" endorsement (S354-CG [R 6/94]) were both
listed on the "Commercial General Liability Coverage Part
Declarations" page (S3D-CG [11/94]), which had an effective date
of February 11, 1997.
The Coverage Part Declarations page was in
turn listed underneath the "Forms and Endorsements" heading on
the "Common Policy Declarations" page, also with an effective
date of February 11, 1997.
It is this page that Patterson and
Hemmelman appear to argue creates an ambiguity in the effective
date of the policy.
At the bottom of the Common Policy Declarations page is
the following notation:
"Countersigned:
SS By /s/ Charles C. Price."
28 1997."
LEXINGTON, KY-03/20/97-
The page is also stamped "U/W APR
Patterson and Hemmelman argue that the various dates
on the Common Policy Declarations page create an ambiguity about
when or whether the endorsements were made effective and a part
of the policy as a whole.
We disagree.
The Common Policy
Declarations page contains the information about the policy as a
whole, including the premiums to be paid, the types of coverage
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contained in the policy, additional taxes and fees, and the forms
and endorsements included in the policy.
All documents indicate
that the effective date for the policy and the endorsements was
February 11, 1997.
We agree with the trial court that "the
countersigning of [the Common Policy Declarations page] by
Northfield's agent had nothing to do with when the policy in its
entirety became effective" (emphasis original).
Patterson and Hemmelman correctly point out that
because insurance companies prepare the contracts, ambiguities
are resolved in favor of the insured.
St. Paul Fire & Marine
Insurance Co. v. Powell-Walton-Milward, Inc., Ky., 870 S.W.2d
223, 227 (1994).
However, St. Paul also stated that:
[t]he rule of strict construction against an
insurance company certainly does not mean
that every doubt must be resolved against it
and does not interfere with the rule that the
policy must receive a reasonable
interpretation consistent with the parties'
object and intent or narrowly expressed in
the plain meaning and/or language of the
contract. Neither should a nonexistent
ambiguity be utilized to resolve a policy
against the company. We consider that courts
should not rewrite an insurance contract to
enlarge the risk to the insurer. U. S.
Fidelity & Guar. Co. v. Star Fire Coals,
Inc., 856 F.2d 31 (6th Cir. 1988).
Id. at 226-27.
We find no ambiguity, and decline to enlarge the
contract beyond what both the insurer and the insured intended.
Having concluded that the entire contract was
effective, we now address the question of whether these
exclusions are applicable in this situation.
Patterson and
Hemmelman argue that Linda Stillman's request of Patterson to
become involved in the situation was a negligent delegation of
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responsibility and therefore not covered by the exclusion.
The
assault and battery exclusion clearly states that the policy:
does not apply to "bodily injury," . . . [or]
"personal injury," . . . arising out of
assault or battery or out of any act or
omission in connection with the prevention or
suppression of an assault or battery, whether
caused by or at the instigation or direction
of the insured, an "employee" or patron of
the insured, or any other person.
The exclusion does not specifically mention negligence,
but for that matter neither does it use the term "intentional" to
define the conduct proscribed.
The policy does not apply to "any
act or omission" connected to the "prevention or suppression of
an assault or battery."
Where the terms of an insurance contract
are clear and unambiguous, the contract should be enforced as
written.
Masler v. State Farm Mutual Automobile Insurance Co.,
Ky., 894 S.W.2d 633 (1995).
Furthermore, "'unambiguous and
clearly drafted exclusions which are "not unreasonable" are
enforceable' under Kentucky law."
Meyers v. Kentucky Medical
Insurance Co., Ky. App., 982 S.W.2d 203, 210 (1997)(quoting
American Nat'l Bank and Trust Co. v. Hartford Accident and Indem.
Co., 442 F.2d 995, 999 [6th Cir. 1971]).
Patterson and Hemmelman
do not challenge whether the exclusions are reasonable, only
whether they are applicable.
We believe they are both.
The judgment of the Jefferson Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert M. Klein
William A. Miller, Jr.
Louisville, Kentucky
Richard W. Edwards
Louisville, Kentucky
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