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Hitting Plaintiff on Head with Metal Pole is a Battery & Even With  Assault & Battery Coverage Exclusion Applies  

Paul Semien ("Semien"), appealed the district court\'s dismissal of his  breach of contract claim for defense and indemnity against the  Burlington Insurance Company ("Burlington") after he was injured by a  convenience store employee who hit him on the head with a metal pole. In  Paul Semien v. The Burlington Insurance Company, No. 22-20195, United  States Court of Appeals, Fifth Circuit (October 3, 2022) the Fifth  Circuit applied the Eight Corners Rule and resolved the dispute in favor  of the insurer.  

BACKGROUND

Semien, a customer at a convenience store became embroiled in a dispute  with the store\'s clerk, Tam Truong, over Semien\'s entitlement to store  credits based on awards that he won from the store\'s video poker  machines. Truong left his post behind a glass-enclosed counter and hit  Semien on the head with a metal pole, causing Semien severe injuries.  Semien sued T&T and Truong in Texas state court (the "Underlying  Lawsuit") for negligence and assault against both Truong and his  employer.  T&T had a general commercial liability insurance policy issued by  Burlington (the "Policy.) "Coverage D" of the Policy provides for  coverage up to $100,000 for assault and battery. But, Coverage D also  excluded coverage when the assault or battery is "committed by any  insured or agent of any insured." The Policy defines "insured" to  include T&T\'s employees, but "only for acts within the scope of  their employment by [T&T] or while performing duties related to the  conduct of [T&T\'s] business."  Burlington denied that it had a duty to defend or indemnify T&T and  Truong in the Underlying Lawsuit. Semien subsequently entered into a  settlement agreement with T&T and Truong. As part of the settlement  agreement, they assigned Semien "all rights they have jointly or  separately to pursue claims and remedies under [their] insurance  contract with The Burlington Company."  Semien then sued Burlington. The district court granted the motion.  Plaintiff timely appealed.