This blog was co-authored by: Anitah Ndhlovu, Candidate Attorney

When a man was shot outside a food store, the wife sued the store’s operator and sought the benefits of the store’s insurance liability policy.  The claim failed because of two exclusions, namely an assault and battery exclusion and a weapons exclusion.

The policy indemnified “those sums that the insured becomes legally obligated to pay as damages because of bodily injury”.  The assault and battery exclusion precluded coverage for bodily injuries arising out of an assault or battery “caused, directly or indirectly by you, any insured, any person, any entity or by any means whatsoever”.  “Battery” included “any actual harmful or offensive contact between two or more persons which brings about harmful or offensive contact to another”.  The weapons exclusion excluded coverage for injuries that arise “directly or indirectly out of the possession, ownership, maintenance, use of or threatened use of a lethal weapon, including but not limited to firearms by any person”.

The court held that claims “arise out of” excluded conduct when “but for” that conduct, there could be no claim against the insured.  “But for” the use of a firearm the claims would not exist.  It was also clear that the shooting represented an “intentional or unintentional act” that brought about “harmful or offensive contact to another”.  Both exclusions were unambiguous, the claims fell within those exclusions, and therefore the claim for an indemnity failed.

The claimant alleged that the exclusion was unconscionable because the insured did not speak English.  The court pointed out that parties are bound to the contracts they enter into unless fraud prevents them from reading the contract, of which there was no evidence.  The exclusions were also said to be “commercially reasonable and conscionable”.

A similar outcome should follow in South African law.

Colony Insurance Company v Henry Properties, Inc US District Court Georgia Atlanta Division No 1:21-CV-4600-TWT