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Atlantic v. Theodore J. Coffey D/B/A Tj Coffey's

December 31, 2012

ATLANTIC CASUALTY INSURANCE CO., PLAINTIFF,
v.
THEODORE J. COFFEY D/B/A TJ COFFEY'S, JAMES M. BURKE, AND RICHARD FULLER, DEFENDANTS.



The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court

DECISION AND ORDER

I. INTRODUCTION

In this diversity action, Plaintiff Atlantic Casualty Insurance Co. ("Atlantic") seeks a declaration that it is not obligated to defend or indemnify its insured, Defendant Theodore Coffey, in an underlying lawsuit in New York State Supreme Court, County of Erie.

Presently before the Court are Defendant Coffey's Motion for Summary Judgment (Docket No. 46) and Atlantic's Cross-Motion for Summary Judgment (Docket No. 54). For the reasons set forth below, Coffey's motion is denied and Atlantic's cross-motion is granted.

II. BACKGROUND

A. The Facts

Theodore J. Coffey owns a tavern called TJ Coffey's, located in Buffalo, New York. Atlantic, a corporation with its principal place of business in North Carolina, issued the following commercial general liability policies to Coffey:

Policy No. L036001809, for the period January 4, 2006 to January 4, 2007 Policy No. L036002489 for the period January 4, 2007 to January 4, 2008 Policy No. L036003049 for the period January 4, 2008 to January 4, 2009 Policy No. L036003619 for the period January 4, 2009 to January 4, 2010 Policy No. L036004181 for the period January 4, 2010 to January 4, 2011.

The initial 2006-07 policy contained an endorsement entitled "EXCLUSION-ASSAULT AND/OR BATTERY," form AGL--046 01/03, which states in relevant part:

1. This insurance does not apply to and we have no duty to defend any claims or "suits" for "bodily injury" "property damage" or "personal and advertising injury" arising in whole or in part out of:

a) the actual or threatened assault or battery whether caused by or at the instigation or direction of any insured, his employees, patrons or any other person;

b) the failure of any insured or anyone else for whom any insured is legally responsible to prevent or suppress assault or battery;

2. For the purpose of this endorsement, the words, "assault and/or battery" are intended to include, but are not limited to, sexual assault.

3. Exclusion 2.a. of the Commercial General Liability Coverage Form is deleted in its entirety and replaced by the following:

(a) "bodily injury" or "property damage" expected or intended from the standpoint of any insured.

Docket No. 47-7.) This particular endorsement was twice revised. The 2008-09 policy contained Assault and/or Battery exclusion form AGL-046 01/07 (Docket No. 48-5), and the 2009-10 and 2010-11 policies contained Assault and/or Battery ...


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