IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

MAY 17, 2004 Session

ST. PAUL REINSURANCE CO., LTD. v. ROBERT WILLIAMS and

SHERROD JACKSON, Individually and d/b/a PURE PASSION; PURE

PASSION, INC. and EUGENE PUGH

Direct Appeal from the Chancery Court for Shelby County

No. CH-02-0038-I Walter L. Evans, Chancellor

No. W2003-00473-COA-R3-CV - Filed August 25, 2004

This case arises from events surrounding the shooting death of Decedent, Appellant’s son. Appellee

filed a motion for summary judgment claiming its policy of insurance did not apply to the

circumstances of this case because Appellant’s claim was specifically excluded from the insurance

policy. The trial court granted Appellee’s motion for summary judgment and, for the following

reasons, we affirm.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed

ALAN E. HIGHERS,J., delivered the opinion of the court, in which DAVID R.FARMER,J., and HOLLY

M. KIRBY, J., joined.

Ron W. McAfee, Memphis, TN, for Appellant

Gary H. Nichols, Jeffrey L. Lay, Dyersburg, TN, for Appellee

OPINION

Facts and Procedural History

On August 19, 2000, Rodney Pugh (“Pugh” or “Decedent”) was a patron at a nightclub in

Shelby County, Tennessee, named Pure Passion. Pugh became involved in an altercation with other

unknown patrons of Pure Passion. One of those individuals had a firearm and shot Pugh multiple

times in the abdomen. Pugh died as a result of the gunshot wounds. 

Subsequently, on August 16, 2001, Eugene Pugh (“Appellant”), Decedent’s father, filed a

complaint, seeking compensatory and punitive damages, against Robert Williams and Sherrod
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Jackson individually and d/b/a the Pure Passion Club. On January 7, 2002, St. Paul Reinsurance

Company (“Appellee”) filed a complaint for a declaratory judgment, seeking a decree that the

commercial general liability policy issued to Pure Passion (“insurance policy”) excluded the nature

of Appellant’s claim from coverage and that Appellee had no duty to defend or indemnify Pure

Passion. 

The insurance policy between Appellee, as insurer, and Pure Passion, as insured, with an

effective period of coverage from August 3, 2000, to August 3, 2001, provides, in pertinent part:

Section I - Coverages

Coverage A. Bodily Injury And Property Damage Liability

1. Insuring Agreement.

a. 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.

We will have the right and duty to defend any suit seeking those damages. We may

at our discretion investigate any “occurrence[”] and settle any claim or suit that may

result.

...

c. Damages because of bodily injury include damages claimed by any person or

organization for care, loss of services or death resulting at any time from the bodily

injury.

Under the insurance policy’s list of exclusions, it states the following:

Exclusion - Assault and Battery / Negligent Hiring

Notwithstanding anything contained herein to the contrary, it is understood and

agreed that this policy excludes claims arising out of;

1. Assault and Battery, whether caused by or at the instructions of, or at the direction

of or negligence of the insured, his employees, patrons or any causes whatsoever and

2. Allegations of negligent act or omission by or on behalf of the Insured in

connection with hiring, retention or control of employees, supervision or prevention

or suppression of such assault and battery.

Finally, the insurance policy excludes coverage for punitive or exemplary damages:

Exclusion - Punitive Or Exemplary Damage
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The following exclusion is added to Coverages A, B, and C (Section I):

This insurance does not apply to a claim of or indemnification for punitive or

exemplary damages. If a suit shall have been brought against you for a claim within

the coverage provided under the policy, seeking both compensatory and punitive or

exemplary damages, then we will afford a defence for such action. We shall not have

an obligation to pay for any costs, interest, or damages attributable to punitive or

exemplary damages.

Appellee filed a motion for summary judgment, an amended motion for summary judgment, a

memorandum in support of such motion, and a statement of undisputed facts. After a hearing on

September 6, 2002, the trial court found that the insurance policy does not provide coverage for the

subject matter of Appellant’s lawsuit. Therefore, the trial court granted Appellee’s motion for

summary judgment. After the trial court denied Appellant’s motion to alter or amend the judgment,

Appellant filed an appeal with this Court and presents the following issue for our review: whether

the insurance policy provides coverage pursuant to the “concurrent causation doctrine” for the

shooting death of Rodney Pugh. For the following reasons, we affirm the decision of the trial court.

Standard of Review

This Court has previously articulated the standard by which we must review this issue on

appeal:

We do not find a material factual dispute. Questions involving an insurance

policy’s coverage and an insurer’s duty to defend require the interpretation of the

insurance policy in light of claims asserted against the insured. Standard Fire Ins.

Co. v. Chester-O’Donley & Assoc., Inc., 972 S.W.2d 1 (Tenn. App. 1998). The

issues relating to the scope of coverage and an insurer’s duty to defend present

questions of law which can be resolved by summary judgment when the relevant

facts are not in dispute. Id. at 5-6. Summary judgment may be granted only when

there are no genuine material factual disputes with regard to the claim or the defense

asserted in the motion, and when the moving party is entitle[d] to a judgment as a

matter of law. Tenn. R. Civ. P. 56.03; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.

1993).

Planet Rock, Inc. v. Regis Ins. Co., 6 S.W.3d 484, 490 (Tenn. Ct. App. 1999).

Law and Analysis

Appellant argues that Appellee should not have been granted summary judgment even though

the insurance policy contains an assault and battery exclusion. Specifically, Appellant argues that

a “concurrent cause,” the negligence of Pure Passion’s employees in maintaining a secure

environment, contributed to the Decedent’s death. 
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The “concurrent causation doctrine” was first recognized by this Court in the unpublished

decision Almany v. Nationwide Insurance Company, No. 85-341-II, 1987 Tenn. App. LEXIS 2460,

at *23-25 (Tenn. Ct. App. January 29, 1987). Such doctrine provides that “coverage under a liability

policy is equally available to an insured whenever an insured risk constitutes a concurrent proximate

cause of the injury.” Almany, 1987 Tenn. App. LEXIS, at *24. Concurrent causation was

recognized and approved by the Tennessee Supreme Court in Allstate Insurance Company v. Watts,

811 S.W.2d 883, 887 (Tenn. 1991) (holding “there should be coverage in a situation . . . where a

nonexcluded cause is a substantial factor in producing the damage or injury, even though an

excluded cause may have contributed in some form to the ultimate result and, standing alone, would

have properly invoked the exclusion contained in the policy.”). 

In Watts, DeweyCrafton, the insured, was assisting Joseph Cole in replacing the brake shoes

on Cole’s truck in Crafton’s garage. Watts, 811 S.W.2d at 884. Crafton and Cole had difficulty

removing the lug nuts from one of the truck’s wheels. Id. Bobby Watts, a friend of Crafton’s,

coincidentally stopped by Crafton’s home and offered to use a welding torch he had in his vehicle

to remove the lug nuts. Id. Before using the welding torch, Watts inquired whether there were any

flammable materials present in the garage to which Crafton responded in the negative. Id. When

Watts could not remove the lug nuts with the torch, Crafton asked Watts to cut the bolt off with the

torch. Id. Watts did so and, as the bolt was being cut, sparks scattered over the garage floor and

ignited a pan of flammable liquid under the truck. Id. at 884-85. Crafton picked up the pan, walked

to the open garage door, but dropped the pan due to the heat and inadvertently kicked it. Id. at 885.

As a result, flammable liquid splashed onto Watts, causing burns. Id. 

Crafton’s homeowner insurance policy with Allstate Insurance Company provided that

“[Allstate does] not cover bodily injury or property damage arising out of the ownership,

maintenance, use, occupancy . . . loading or unloading of any motorized land vehicle or trailer.” Id.

at 884. Allstate argued that the insurance policy did not cover the injury to Watts because the

circumstances surrounding Watts’ injury involved the maintenance of Cole’s truck and the language

“arising out of” was sufficiently broad to mean any causal relationship, relying on the “chain of

events” theory of application. Id. at 885, 887. The court recognized that the use of the welding torch

to perform maintenance on Cole’s truck was an excluded risk underthe policy. Id. at 888. However,

the court determined that other causes–the placement of the pan of flammable substance on the

garage floor, Crafton’s failure to warn Watts of the presence of the flammable substance, and

Crafton’s negligence in dropping and kicking the burning substance–were not excluded by the

insurance policy, and, therefore, Allstate should provide insurance coverage when these other causal

factors “played a substantial role in producing the loss complained of by Watts.” Id. (citing

Travelers Ins. Co. v. Aetna Cas. & Sur. Co., 491 S.W.2d 363, 367 (Tenn. 1973)). Therefore, the

court found in favor of Watts and held that “an insuror should not be excused from its obligation

under a homeowner’s policy unless it has been determined that the loss being complained of did not

result in substantial part from a risk for which it provided coverage and collected a premium.” Id.

at 888. 
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This Court later addressed “concurrent causation” in Planet Rock, Inc. v. Regis Insurance

Company. In Planet Rock, Craig Williams, a patron of Planet Rock, had an altercation with

Benjamin Blackwell, another patron of the club. Planet Rock, Inc. v. Regis Ins. Co., 6 S.W.3d 484,

485 (Tenn. Ct. App. 1999). After taking the argument outside, Williams and Blackwell began

fighting and Williams was knocked unconscious. Id. Planet Rock employees brought Williams back

into the club and put him on a couch in one of the club’s offices. Id. When Planet Rock’s

employees checked on Williams some time later, he had died from his injuries. Id. Williams’

parents sued Planet Rock, seeking damages under a theory of wrongful death. Id. at 485-86.

Specifically, the parents alleged that Planet Rock undertook the medical care of Williams in a grossly

negligent manner. Id. at 486. 

Planet Rock held an insurance policy with Regis Insurance Company. When Regis denied

Planet Rock coverage pursuant to an assault and battery exclusion and Williams’ parents received

a judgment in their favor against Planet Rock, Planet Rock, for the use and benefit of Williams’

parents, filed a lawsuit against Regis. Id. at 486-88. In the insurance policy with Regis, the policy

provided that:

Actions and proceedings to recover damages for bodily injuries or property

damage arising from the following are excluded from coverage . . . [a]ssault and

[b]attery or any act or omission in connection with the prevention or suppression of

such acts [and] [h]armful or offensive contact between two or among two or more

persons . . . .

Id. at 488. In Planet Rock, this Court affirmed the order of the trial court granting summary

judgment to Planet Rock, Inc., which found that the negligent act of failing to make available the

appropriate medical care was covered, not excluded, by the insurance policy with Regis. Id. at 489,

493. 

In the instant case, Appellant contends that the claim against Pure Passion–negligence in

failing to provide security and a safe and secure premises–is a concurrent cause which is not

excluded by the insurance policy. Relying on Watts and Planet Rock, Appellant argues that this

Court should reverse the grant of summary judgment to the Appellee. We disagree. Unlike Watts

and Planet Rock, this case involves a claim which is excluded by the insurance policy. In Watts, the

nonexcluded causes were the placement of the pan of flammable substance, Crafton’s failure to warn

Watts of the presence of the flammable substance, and Crafton’s negligence in dropping and kicking

the burning substance. Watts, 811 S.W.2d at 888. In Planet Rock, the nonexcluded cause was the

insured’s failure to render or make available the appropriate medical care. Planet Rock, 6 S.W.3d

at 489, 493. However, in this case, the claim alleged by Appellant against Pure Passion is excluded

by the language of the assault and battery exclusion in the insurance policy. Such policy excludes

from coverage claims arising out of “[a]ssault and [b]attery, whether caused by or at the instructions

of, or at the direction of or negligence of the insured, his employees, patrons or any causes

whatsoever.” (emphasis ours). Additionally, the policy excludes claims arising out of “[a]llegations

of negligent act or omission by or on behalf of the [i]nsured in connection with hiring, retention or
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control of employees, supervision or prevention or suppression of such assault and battery.”

(emphasis ours). In this case, the Appellant’s claim falls within the exclusions articulated in the

insurance policy, and, therefore, the “concurrent causation doctrine” should not apply to Appellant’s

claim. For this reason, we affirm the grant of summary judgment in favor of Appellee.

Conclusion

For the foregoing reasons, we affirm the decision of the trial court. Costs of this appeal are

taxed to Appellant, Eugene Pugh, and his surety for which execution may issue if necessary.

___________________________________ 

ALAN E. HIGHERS, JUDGE