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 concurrentproximate-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 independentand-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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