In Final Table, LLC v. Acceptance Casualty Ins. Co., 537 P.3d 990 (Or. App. 2023) the Oregon Court of Appeals upheld summary judgment enforcing the application of an assault and battery exclusion in a bar shooting case.
In this case, a bar patron named Sheets entered the insured’s bar drunk. Sheets exuded an unpleasant stench, causing one of the bar patrons, Thompson, to make a comment about the bar’s “atmosphere.” Sheets became enraged and left the bar briefly and then returned with a gun. Sheets grabbed Thompson by the head with one hand and fired his gun right through Thompson’s head with the other.
Sheets pled no contest to charges of attempted murder and second degree assault. Later, Thompson, who survived the head shot, sued the bar for overserving Sheets alcohol while he was present in the bar. Thompson secured a judgment against the bar. The bar, in turn, assigned Thompson its rights to its insurance coverage. The insurer denied coverage due to an assault and/or battery exclusion within its policy.
In finding that the assault and battery exclusion applied, the Court disregarded the parties’ dispute regarding the degree of intent that was required to establish that Sheets had committed the assault or battery. Instead, the Court focused on the facts of the guilty plea, which was confirmed by surveillance video in the bar. The Court found that whether Sheets was intoxicated or not, the video showed that Sheets grabbed Thompson’s head with one hand and fired a bullet through it with a gun held in the other hand. No reasonable person could dispute that Sheets intended to cause a harmful or offensive contact with Thompson, i.e., assault, by those actions. The Court noted that Sheets had pled no contest to charges of attempted murder and assault only buttressed that inescapable conclusion.