Great Lakes Insurance SE v. Michael L. Andrews

United States Court of Appeals
For the Eighth Circuit
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No. 21-1725
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Great Lakes Insurance SE
Plaintiff - Appellee
v.
Michael L. Andrews
Defendant
Ray A. Perrin; RAJJ Entertainment Inc., doing business as Tool Shed Lounge
Defendants - Appellants
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: January 13, 2022
Filed: May 10, 2022
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Before LOKEN, GRUENDER, and GRASZ, Circuit Judges.
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GRUENDER, Circuit Judge.
A patron of RAJJ Entertainment, which is a bar doing business as “Tool Shed
Lounge,” successfully sued RAJJ and its owner, Ray A. Perrin, for negligence after
being injured in the bar’s parking lot. RAJJ and Perrin’s insurance company, Great

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Lakes Insurance, then sued for a declaration stating that it was not required to
indemnify RAJJ and Perrin for the damages award because the insurance policy
excluded from coverage injuries that arose from physical altercations. The district
court1 granted summary judgment to Great Lakes, and we affirm.
I.
In August 2012, Michael Andrews went to the Tool Shed Lounge. While
Andrews was in the parking lot, Kyle Buelterman, a bar employee, approached him.
Buelterman yelled and threatened to attack Andrews, and as Andrews was turning
around, Buelterman struck him repeatedly on his head and body, causing injury.
Andrews initiated a negligence lawsuit in state court against RAJJ and Perrin.
The petition for damages alleged that Buelterman had “placed [Andrews] in
imminent apprehension of harmful contact and fear of physical injury,” and during
the trial, Andrews’s counsel described the event as an “assault” and an attack that
came “out of the blue.” Andrews testified that Buelterman “hit [Andrews] on the
left side of [his] face when [he] w[as]n’t looking.” Andrews claimed that RAJJ and
Perrin knew or should have known about Buelterman’s “propensity for violence”
based on his “vicious tendencies,” including “prior particular acts of a mischievous,
wanton and brutal nature,” and that RAJJ and Perrin failed to anticipate, guard
against, and warn about Buelterman’s conduct. The jury returned a verdict in favor
of Andrews, finding RAJJ and Perrin liable for (1) “failing to provide safe travel or
failing to protect or failing to warn or failing to provide adequate security” and (2)
“negligent hiring, retaining or supervision.” The court entered judgment and ordered
that RAJJ and Perrin were separately liable for $97,500 each. RAJJ and Perrin
appealed the state court judgment, describing the incident in the parking lot as a
“physical altercation” in their Notice of Appeal.2
1 The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri.
2 The jury instructions also referred to the incident as a “physical altercation.”

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Great Lakes then filed a complaint in federal court against RAJJ, Perrin, and
Andrews seeking a declaratory judgment stating that its insurance policy did not
require it to indemnify RAJJ and Perrin because Andrews’s injuries were excluded.
The insurance policy provides, in relevant part: “We will pay those sums that
the insured becomes legally obligated to pay as damages because of ‘bodily injury’
or ‘property damage’ to which this insurance applies.” However, the policy contains
the following exclusion:
This insurance does not apply to “bodily injury” . . . arising out of an
“assault”, “battery”, or “physical altercation”:
a. Whether or not caused by, at the instigation of, or with the direct
or indirect involvement of an insured, an insured’s employees,
patrons, or other persons in, on, near, or away from an insured’s
premises; or
b. Whether or not caused by or arising out of an insured’s failure to
properly supervise or keep an insured’s premises in a safe
condition; or
c. Whether or not caused by or arising out of any insured’s act or
omission in connection with the prevention, suppression, or
failure to warn of the “assault”, “battery”, or “physical
altercation”, or providing or not providing or summoning or not
summoning medical or other assistance in connection with the
“assault”[,] “battery”, or “physical altercation”, including but not
limited to, negligent hiring, training, or supervision; or
d. Whether or not caused by or arising out of negligent, reckless, or
wanton conduct by an insured, an insured’s employees, patrons,
or other persons.
The policy provides the following definitions:
“Assault” means any attempt of [sic] threat to inflict injury on another
including any conduct that would reasonably place another in
apprehension of such injury.

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“Battery” means the intentional or reckless physical contact with or any
use of force against a person without his or her consent that entails some
injury or offensive touching whether or not the actual injury inflicted is
intended or expected.
“Physical altercation” means a dispute between individual [sic] in
which one or more persons sustain bodily injury arising out of the
dispute.
In this declaratory-judgment action, the district court granted summary
judgment to Great Lakes, and RAJJ and Perrin appeal.
II.
We review a grant of summary judgment de novo. Green Plains Otter Tail,
LLC v. Pro-Env’t, Inc., 953 F.3d 541, 545 (8th Cir. 2020). “Summary judgment is
proper if there are no genuine issues of material fact and the moving party is entitled
to judgment as a matter of law.” Id. Because this is a diversity action in which
Missouri law controls, “we are bound by the decisions of the Missouri Supreme
Court regarding issues of substantive state law.” Burger v. Allied Prop. & Cas. Ins.,
822 F.3d 445, 447 (8th Cir. 2016). “Decisions by the Missouri Court of Appeals
may be used as an indication of how the Missouri Supreme Court may rule, but we
are not bound to follow these decisions.” Id.
A.
First, we address whether the assault-and-battery exclusion applies to the
damages award. Insurance companies are not required to indemnify the insured for
injuries that are excluded by a policy. Sprint Lumber, Inc. v. Union Ins., 627 S.W.3d
96, 114 (Mo. Ct. App. 2021) (“If relevant evidence adduced at [the underlying] trial
contradicts or adds facts necessarily indicating the absence of coverage, then the
insurer has no duty to indemnify the insured.”); see also McCormack Baron Mgmt.
Servs., Inc. v. Am. Guarantee & Liab. Ins., 989 S.W.2d 168, 173 (Mo. 1999) (noting
that the duty to indemnify is determined by the facts established in the underlying

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trial). “The burden of showing that an exclusion to coverage applies is on the
insurer.” Manner v. Schiermeier, 393 S.W.3d 58, 62 (Mo. 2013). Generally, “where
a plaintiff’s negligence claim arises out of an assault or battery, the assault or battery
exclusion bars coverage of the insured’s negligence claim.” Trainwreck W. Inc. v.
Burlington Ins., 235 S.W.3d 33, 44 (Mo. Ct. App. 2007); see also Acceptance Ins.
v. Winning Concepts of Westport, Inc., 842 S.W.2d 206, 208 (Mo. Ct. App. 1992)
(holding that “[n]egligently hiring persons with violent propensities which
negligence results in an individual being assaulted and battered . . . [was] excluded
under the terms of the policy”).
Here, “[t]he clear language of the policy controls.” See Acceptance Ins., 842
S.W.2d at 208; Hempen v. State Farm Mut. Auto. Ins., 687 S.W.2d 894, 894 (Mo.
1985) (“Unless policies are ambiguous, they must be enforced by the courts as
written.”). Andrews suffered a “‘bodily injury’ . . . arising out of” Buelterman’s
actions. Those actions, as described by Andrews’s petition, testimony, and theory
of the case in the negligence trial, undeniably fit the policy’s definitions of assault,
battery, and physical altercation. The verdict indicates that the jury agreed.
Therefore, the “relevant evidence adduced at trial” confirms the exclusion of
coverage. See Sprint Lumber, 627 S.W.3d at 114.
RAJJ and Perrin rely on Penn-Star Insurance v. Griffey, 306 S.W.3d 591, 599
(Mo. Ct. App. 2010), but that case is distinguishable. In Penn-Star, a bouncer
ejected someone from a bar and dropped him on a sidewalk, failing to realize that
the patron was unconscious. Id. at 594. The court held that the assault-and-battery
exclusion did not apply because, although the bouncer’s action “conceivably could
have been an ‘assault and battery’ . . . [,] we do not know that it was an assault and
battery.” Id. at 602-03. In other words, the insurer did not meet its burden of proof.
See id.; Manner, 393 S.W.3d at 62. By contrast, Buelterman’s conduct was a
textbook assault and battery, and the incident was clearly a physical altercation. See
Penn-Star, 306 S.W.3d at 600 (noting that a “physical altercation” involves “heated,
angry physical contact between the participants, as in a personal fight”). RAJJ and
Perrin do not argue otherwise.

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RAJJ and Perrin’s remaining arguments are meritless. First, they claim the
exclusion does not apply because the underlying lawsuit “arose out of” their
negligence—not any assault, battery, or physical altercation. But the policy
language concerns how the bodily injury arose, not how the lawsuit arose. At most,
Andrews’s injuries arose from RAJJ and Perrin’s negligence in addition to the
assault, battery, and physical altercation. The policy expressly anticipates this
situation, stating that the exclusion applies to injuries “[w]hether or not caused by or
arising out of” an insured’s omissions, including “negligent hiring, training, or
supervision.” See Acceptance Ins., 842 S.W.2d at 208. Second, RAJJ and Perrin
argue that the exclusion does not apply because neither “RAJJ [n]or Perrin engaged
in assault or battery.” That is irrelevant because the exclusion covers injuries
regardless of the “direct or indirect involvement of an insured,” and the policy
contemplates that they may be “caused by, at the instigation of, or with the direct or
indirect involvement of . . . an insured’s employees.”
Missouri law “strictly construes exclusionary clauses against the drafter,”
Burns v. Smith, 303 S.W.3d 505, 510 (Mo. 2010) (emphasis omitted), so prudent
insurance companies take pains to avoid ambiguities when drafting policy language.
Great Lakes successfully did so here.
B.
Second, RAJJ and Perrin argue that even if the assault-and-battery exclusion
applies, their negligence counts as a separate, covered cause under the concurrent-
proximate-cause rule. See Taylor v. Bar Plan Mut. Ins., 457 S.W.3d 340, 347-48
(Mo. 2015); Intermed Ins. v. Hill, 367 S.W.3d 84, 88 (Mo. Ct. App. 2012). The rule
provides that “where an insured risk and an excluded risk constitute concurrent
proximate causes of an accident, a liability insurer is liable as long as one of the
causes is covered by the policy.” Intermed, 367 S.W.3d at 88. Under the rule, “the
injury must have resulted from a covered cause that is truly independent and distinct
from the excluded cause.” Taylor, 457 S.W.3d at 348 (internal quotation marks
omitted).

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The concurrent-proximate-cause rule does not apply here because RAJJ and
Perrin’s negligence is not a “covered cause.” See id. The policy states that injuries
arising out of an assault, battery, or physical altercation are excluded whether or not
they were “caused by or arising out of” (1) “an insured’s failure to properly supervise
or keep an insured’s premises in a safe condition”; (2) an insured’s “act or omission
in connection with the prevention, suppression, or failure to warn of the ‘assault’,
‘battery’, or ‘physical altercation’ . . . , including but not limited to, negligent hiring,
training, or supervision”; and (3) “negligent, reckless, or wanton conduct by an
insured.” So, if an assault, battery, or physical altercation is excluded, then the
policy also excludes negligence that caused the assault, battery, or physical
altercation. The specific causes described in the jury verdict—failing to “provide
safe travel,” “protect,” “warn,” or “provide adequate security,” and “negligent
hiring, retaining, or supervision”—all fall within the exclusion. Because neither
RAJJ and Perrin’s negligence nor the assault, battery, and physical altercation is a
covered cause, it does not matter how “independent and distinct” they are for the
purposes of the concurrent-proximate-cause rule; the rule does not apply.
The Missouri Court of Appeals’ decision in Adams v. Certain Underwriters
at Lloyd’s of London does not change this outcome. See 589 S.W.3d 15, 32 (Mo.
Ct. App. 2019). That case was about an insurer’s duty to defend a negligence lawsuit
based on injuries sustained in a shooting outside a nightclub. Id. at 21, 26. Like the
policy at issue here, the Adams policy excluded bodily injuries “arising out of assault
or battery, or out of any act or omission in connection with assault or battery, or with
the prevention or suppression of an assault or battery.” Id. at 22. It also excluded
bodily injuries “arising out of charges or allegations of negligent hiring, training,
placement, or supervision with respect to [an assault-and-battery provision].” See
id. Yet the court held that “assuming [the victim’s] injury arose out of assault or
battery, the negligence of [the insured and the nightclub’s owner] was a concurrent
proximate cause of [the victim’s] injury.” Id. at 32.
Adams is not binding, see Burger, 822 F.3d at 447, nor is it persuasive.
Although the case discusses the concurrent-proximate-cause rule at length, it never
addresses the threshold question whether the insured’s negligence was covered by

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the policy, Adams, 589 S.W.3d at 29-34, as it must be for the rule to apply, see
Taylor, 457 S.W.3d at 348. Instead, it proceeds to analyze whether the negligence
claim “could be covered . . . as an independent and distinct cause,” as though the
concurrent-proximate-cause rule could override policy language that would
otherwise exclude negligence relating to an assault and battery. Adams, 589 S.W.3d
at 32.
Furthermore, even if RAJJ and Perrin’s negligence were covered, that would
not require Great Lakes to indemnify them because their negligence was not “truly
independent and distinct” from the assault, battery, or physical altercation. See
Taylor, 457 S.W.3d at 348 (internal quotation marks omitted). The independent-
and-distinct requirement has not been interpreted consistently by Missouri courts.
In some cases, courts have adopted a but-for approach, asking whether the injury
would not have occurred but for the excluded cause. See, e.g., Hunt v. Capitol
Indem. Corp., 26 S.W.3d 341, 345 (Mo. Ct. App. 2000) (holding that negligence was
not independent and distinct because “[w]ithout the underlying assault and battery,
there would have been no injury and therefore no basis for plaintiffs’ action . . . for
negligence”). In other cases, courts have taken an element-based approach, asking
whether the elements of a covered cause, such as negligence, require pleading any
element of an excluded cause, such as assault and battery. See, e.g., Intermed Ins. v.
Hill, 367 S.W.3d 84, 88-89 (Mo. Ct. App. 2012) (holding that two causes were
independent and distinct because “proof of negligent supervision does not require
proof of an offensive touching,” an element of battery).
In recognizing the concurrent-proximate-cause rule in Taylor, the Missouri
Supreme Court did not expressly endorse either approach. 457 S.W.3d at 347-48.
Instead, it appeared to favor a narrow application of the doctrine, insisting that the
covered cause be “wholly separate” from the excluded cause, that is, “truly” and
“totally” independent and distinct from it. See id. at 347 & n.8, 348. The court also
signaled that the range of foreseeable harms is relevant to whether two causes are
independent and distinct. See id. at 347 n.8. (citing Intermed, 367 S.W.3d at 89-90)
(describing Intermed, a prior Missouri Court of Appeals case as holding that the
defendant’s negligence was “totally independent” from an excluded cause where the

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negligence “could have resulted in multiple kinds of injury, and it was only
incidental that it in fact resulted in an injury excluded by the policy”). If an injury
is just one of many foreseeable harms that could have occurred because of the
covered conduct, the excluded cause is incidental. See id. Thus, for example, the
negligent hiring of a maniac might be independent and distinct from his act of arson,
but not so for the negligent hiring of a pyromaniac.
The foreseeability analysis further distinguishes Great Lakes’s case from
Adams. In Adams, a teenager was shot and killed outside of a nightclub that had
engaged in various negligent acts, including “inviting a large group of children to a
parking lot, with no supervision, no security, and no police presence in a dangerous
neighborhood at night” as well as locking its doors when there was gunfire. 589
S.W.3d at 22, 33. The court noted that the club’s negligence could have resulted in
“innumerable possible harms,” such as another victim being “struck by a random
bullet,” and it concluded that if an assault and battery occurred, it was “only
incidental.” Id. at 33.
By contrast, the scope of foreseeable harms from RAJJ and Perrin’s
negligence is narrow. According to Andrews’s petition, RAJJ and Perrin knew about
Buelterman’s history and reputation yet failed to prevent the attack on Andrews.
The petition alleged that Buelterman was known to be violent and belligerent; it did
not paint him as clumsy, lascivious, or having other potentially harmful
characteristics. The harms that foreseeably flow from failing to restrain such a
person are few—they include assaults, batteries, physical altercations, and not much
more. Thus, it was not “only incidental” that RAJJ and Perrin’s negligence resulted
in precisely those things. See Taylor, 457 S.W.3d at 347 n.8. Because the excluded
causes of Andrews’s injuries were not truly independent and distinct from RAJJ and
Perrin’s negligence, the concurrent-and-proximate-cause rule would not require
indemnification even if their negligence were covered.

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III.
For the foregoing reasons, we affirm the district court’s grant of summary
judgment to Great Lakes.
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