In this appeal and cross-appeal, we affirm a judgment entered in favor of Ray Woodcock, individually and d/b/a Mulligan’s Bar and Grill “the bar”, and Bruce L. Stanfield, in ALEA London, Limited’s declaratory judgment action. The case hinges on the proper interpretation of the assault and battery exclusion in ALEA’s commercial general liability “CGL” insurance policy. Although we disapprove of the trial court’s decision to submit the question of contract construction to the jury, the jury properly determined that coverage existed for the incident in question, and the judgment entered on the verdict reflects that finding and correctly concludes that ALEA has both a duty to defend and the duty to indemnify Woodcock. The judgment therefore is affirmed.1 The relevant facts follow. ALEA filed this action against Woodcock and Stanfield seeking a declaration that the CGL policy ALEA issued to Woodcock did not cover injuries sustained by Stanfield when he was struck in the nose by a beer bottle thrown by a patron in the bar. The patron threw the bottle at a different person but missed, hitting Stanfield instead. Stanfield contended that Woodcock was liable because he and other employees failed to prevent the bottle thrower’s attack. Stanfield claimed he suffered serious injury and disfigurement and would incur $65,000 in medical expenses for reconstructive surgery.
ALEA claimed that it had no duty to defend or indemnify Woodcock because the incident fell within the policy’s assault and battery exclusion, which states: Exclusion a. . . . Expected or intended injury. “Bodily Injury” or Property Damage” expected or intended from the standpoint of any insured; or arising out of an assault and battery, provoked or unprovoked, or out of any act or omission in connection with prevention or suppression of an assault and battery, committed by any insured or an employee or agent of the insured. ALEA and Woodcock filed cross motions for summary judgment. ALEA argued that the exclusion barred coverage for the incident because Stanfield admitted that his injuries arose from an assault and battery that was unprovoked by him and perpetrated by a dangerous patron in the bar. Woodcock argued that the exclusion did not apply because the assault and battery was committed by a patron, and not “by any insured or an employee or agent of the insured.”
