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Clear Blue Specialty Ins. Co v. TFS NY Inc.

Insurer Need Not Defend, Indemnify Nightclub Owner in State Court Injury Action

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MEMORANDUM DECISION AND ORDER The plaintiff brings this action seeking a declaratory judgment that it need not defend or indemnify defendant TFS NY¹ against a personal injury lawsuit pending in the New York Supreme Court, Kings County. Before the Court is the plaintiff’s motion for summary judgment under Federal Rule of Civil Procedure 56. (ECF Nos. 29, 32.) For the reasons that follow, the motion is granted. BACKGROUND² The defendant owns and operates a nightclub. Between April 2019 and April 2020, the plaintiff insured the defendant under a Commercial General Liability insurance contract. (ECF No. 33-1

11-12.) Like any other insurance policy, this contract had general coverage policies, endorsements and exclusions. At issue in this case is the scope of a Sublimited Assault or Battery endorsement and a Third Party or Contracted Security exclusion — specifically, whether these provisions require the plaintiff to defend and indemnify the defendant against a lawsuit pending in New York state court. Tywan Simmons claims in a New York lawsuit that he was assaulted in the defendant’s nightclub on March 7, 2020. (ECF No. 31-2 7.) Initially, Mr. Simmons alleged that the defendant’s employees “assaulted and battered” him and that the defendant was negligent in hiring those employees; in his amended complaint, he states that Castillo Security Services, which provided security services to the defendant’s nightclub, was also involved in the incident. (ECF No. 33-1

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