UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

ESSEX INSURANCE COMPANY, INC., )

)

Plaintiff, )

)

v. )

)

GOOD DRINKS, LLC d/b/a ) Cause No. 2:12-CV-011-JD

GROWLERS ON HIGHWAY, MYRON )

CHAPMAN, DAVID PETERSEN, )

GEORGE PETERSEN, BOBBY BERNA, )

ANTHONY CHARLES MONALDI, )

AND MATTHEW MERRY, )

)

Defendants. )

OPINION AND ORDER

Now before the Court is Plaintiff Essex Insurance Company’s Motion for Summary

Judgment [DE 15-17] against Defendants Good Drinks, LLC; Myron Chapman; David Petersen;

George Petersen; Bobby Berna; Anthony Monaldi; and Matthew Merry (collectively

“Defendants”). Defendant Matthew Merry (“Merry”) [DE 18-20] and the remaining defendants

(“Good Drinks Defendants”) [DE 21-22] responded, and Plaintiff replied [DE 23]. For the

reasons set forth below, the Court grants the Plaintiff’s Motion for Summary Judgment.

I. BACKGROUND

Defendant Good Drinks, LLC (“Good Drinks”) entered into a twelve month commercial

insurance liability agreement (“Policy”) with Plaintiff Essex Insurance Company, Inc. (“Essex”)

that began on May 12, 2010 [DE 1-1]. The Policy specifically excluded coverage for:

‘bodily injury,’ . . . or any injury, loss, or damage arising out of: . . . [a]ssault

and/or [b]attery, or out of any act or omission in connection with the prevention

or suppression of such acts, whether caused by or at the instigation or direction of

1

case 2:12-cv-00011-JD document 29 filed 06/04/13 page 1 of 15
any Insured, Insured’s employees, patrons or any other person. Nor does this

insurance apply with respect to any charges or allegations of negligent hiring,

training, placement or supervision.

[DE 1-1 at 13]. 

On October 6, 2011, Merry filed a complaint in state court alleging he was assaulted and

battered at Growler’s on February 27, 2011 by Defendants Anthony Monaldi and Bobby Berna

[DE 1-6; DE 17-2]. In Merry’s complaint, he alleged that Good Drinks, LLC, doing business as

Growler’s, is owned by Defendants Myron Chapman, David Peterson, and George Peterson. At

the time, both Monaldi and Berna were employed as bouncers for Good Drinks at Growler’s [DE

22 at 3, 5]. Merry not only claimed that Monaldi and Berna committed an assault and battery

upon Merry, but that Monaldi and Berna were negligent in dealing with Merry, and in turn,

Good Drinks and its owners were vicariously liable for its employees’ negligence, assault and

battery [DE 1-6; DE 17-2]. Merry additionally complained Good Drinks negligently hired,

employed, supervised, and retained Monaldi and Berna. Id.

The uncontested facts indicate on February 27, 2011, after drinking approximately eight

beers, Merry visited Growler’s and danced with two girls he did not know [DE 17-4 at 3]. A

male patron named Cory (the brother to one of the girls) approached Merry after the song ended

and told Merry not to dance with his little sister because she was married. Id.

As Cory and Merry were talking with one another, they each had placed a hand over the

other’s neck to facilitate conversation. Id. Merry testified in his deposition that it was necessary

to “mouth-to-ear” talk because it was so loud and crowded [DE 17-4 at 3-4]. Next thing Merry

knew, he was on his back being pulled to the ground, and once Merry let go of the bouncer’s

wrist (which Merry held to prevent the bouncer from punching Merry) the bouncer had Merry’s

2

case 2:12-cv-00011-JD document 29 filed 06/04/13 page 2 of 15
shirt and another grabbed Merry’s pants and carried him to the door and “threw [him] out on the

sidewalk.” Id. Merry admitted that things were escalated between he and Cory, and while there

was no kind of physical altercation he believed that the “neck holding between the two of [them]

is what brought the bouncers” over. Id. at 4. Merry affirmed he did not give consent for the

bouncers to touch him and he is “100%” certain his leg was broken during the encounter with the

bouncers while inside Growler’s—but he did not know what actually caused the injury (whether

the bouncers or someone or something else) [DE 17-4 at 4, 6-7; DE 20 at 8; DE 22 at 8].

Berna admits in his affidavit that he approached Merry to break up what he believed was

an altercation between Merry and Cory [DE 22 at 3-4]. Monaldi similarly admits that he then

intervened in what appeared to be a physical altercation between Merry and Berna [DE 22 at 5-

6]. During the bouncers’ encounter with Merry, Berna admits he shoved Merry, but claims he

did so in self-defense. Id. And Merry admits he was combative, or resisted the bouncer by

holding his wrists [DE 20 at 11]. Berna also admits he picked Merry up by his pants, while

Monaldi held Merry’s upper half and they carried Merry out of Growler’s [DE 22 at 3-6]. 

Monaldi similarly concedes he assisted Berna in carrying Merry out of the bar. Id. Berna and

Monaldi deny they battered or assaulted Merry, and claim they did not intend or expect Merry

would be injured. Id. 

II. STANDARD OF REVIEW

On summary judgment, the burden is on the moving party to demonstrate that there “is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). That means that the Court must construe all facts in the light most

favorable to the nonmoving party, making every legitimate inference and resolving every doubt

3

case 2:12-cv-00011-JD document 29 filed 06/04/13 page 3 of 15
in its favor. Kerri v. Bd. Of Trustees of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006). A

“material” fact is one identified by the substantive law as affecting the outcome of the suit.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” exists with

respect to any such material fact, and summary judgment is therefore inappropriate, when “the

evidence is such that a reasonable jury could return a verdict for the non-moving party.” Id. On

the other hand, where a factual record taken as a whole could not lead a rational trier of fact to

find for the non-moving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing Bank of Ariz. v. Cities Servs. Co., 391 U.S.

253, 289 (1968)). 

In determining whether a genuine issue of material fact exists, this Court must construe

all facts in the light most favorable to the non-moving party, as well as draw all reasonable and

justifiable inferences in that party’s favor. King v. Preferred Technical Grp., 166 F.3d 887, 890

(7th Cir. 1999). However, the non-moving party cannot simply rest on the allegations or denials

contained in its pleadings, but must present sufficient evidence to show the existence of each

element of its case on which it will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986); Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000).

III. DISCUSSION

Essex has sought a declaratory judgment from this Court to determine whether it must

defend Good Drinks, its owners and bouncers against Merry’s underlying suit. The parties do

not raise a choice of law issue (and in fact rely on Indiana law in their briefs) and therefore the

Court applies federal procedural law and Indiana state substantive law. Erie R. Co. v. Tompkins,

304 U.S. 64, 78 (1938); Best Craft, LLC v. St. Paul Fire and Marine Ins. Co., 611 F.3d 339, 345

4

case 2:12-cv-00011-JD document 29 filed 06/04/13 page 4 of 15
(7th Cir. 2010) (applying the law of the forum state because no party raised a choice of law

issue) (citing Casio, Inc. v. S.M. & R. Co., 755 F.2d 528, 531 (7th Cir. 1985); Lloyd v. Loeffler,

694 F.2d 489, 495 (7th Cir. 1982) (same)). Contract interpretation is a substantive issue, Bourke

v. Dun & Bradstreet Corp., 159 F.3d 1032, 1036 (7th Cir. 1998); thus, Indiana state law applies

to the issues presented in this case.

In Indiana, insurance policies are governed by the same rules of construction as other

contracts, and their interpretation is a question of law. Bradshaw v. Chandler, 916 N.E.2d 163,

166 (Ind. 2009). When interpreting an insurance policy, the court looks at the terms from the

perspective of an ordinary policyholder of average intelligence, id., with the goal of ascertaining

and enforcing the parties’ intent as manifested in the insurance contract. Buckeye State Mut. Ins.

Co. v. Carfield, 914 N.E.2d 315, 318 (Ind. Ct. App. 2009). If insurance policy language is clear

and unambiguous, it should be given its plain and ordinary meaning. Bradshaw, 916 N.E.2d at

166. Where an ambiguity exists, that is, where reasonably intelligent people may interpret the

policy’s language differently, the court construes insurance policies strictly against the insurer.

Id. The court may not extend insurance coverage beyond that provided in the contract, nor may

the court rewrite the clear and unambiguous language of the insurance contract. Am. States Ins.

v. Adair Indus., 576 N.E.2d 1272, 1273 (Ind. Ct. App. 1991).

The nature of the claim rather than the merit of the claim determines the insurance

provider’s duty to defend. Trisler v. Ind. Ins. Co., 575 N.E.2d 1021, 1023 (Ind. Ct. App. 1991). 

Therefore the duty to defend is broader than the duty to indemnify. Id. And as noted by the

parties [DE 16 at 6-7; DE 18 at 2-3], the allegations of the claim and the facts known or

ascertainable by investigation determine the scope of the duty to defend. See Ind. Farmers Mut.

5

case 2:12-cv-00011-JD document 29 filed 06/04/13 page 5 of 15
Ins. Co. v. Ellison, 679 N.E.2d 1378, 1381-82 (Ind. Ct. App. 1997). “[I]f the pleadings fail to

disclose a claim within the coverage limits or one clearly excluded under the policy, and

investigation also reveals the claim is outside the coverage of the policy, no defense is required.”

See id. at 1382; see also, Ind. Farmers Mut. Ins. Co. v. North Vernon Drop Forge, Inc., 917

N.E.2d 1258, 1269 (Ind. Ct. App. 2009) (citing Auto–Owners Ins. Co. v. Harvey, 842 N.E.2d

1279, 1291 (Ind. 2006) for the proposition that the Indiana Supreme Court has more recently

entertained extrinsic, designated evidence when assessing an insurer’s duty to defend). 

The case essentially comes down to one question: whether or not the Assault and/or

Battery (“A&B”) exclusion of the Policy applies. If it does, Essex owes no duty to defend. If it

does not, Essex retains a duty to defend. The fact that the case revolves around an exclusion

simplifies the placement of the burden of proof—it is well-settled that an insurer bears the

burden of proving that an exclusion applies. PSI Energy, Inc. v. Home Ins. Co., 801 N.E.2d 705,

725 (Ind. Ct. App. 2004) (“Generally, a coverage exclusion is an affirmative defense, proof of

which is the insurer’s burden”); Hoosier Ins. Co. v. Audiology Found. of Am., 745 N.E.2d 300,

309 (Ind. Ct. App. 2001); see also Home Fed. Sav. Bank v. Ticor Title Ins. Co., 695 F.3d 725,

732 (7th Cir. 2012) (applying Indiana law and determining that coverage exclusions are

construed strictly against the insurer who bears the burden of showing the exclusion applies). 

Accordingly, the Court considers whether Essex has shown the absence of any genuine disputes

of material fact with respect to the application of the exclusion, and whether Essex has shown it

is entitled to judgment as a matter of law.

Defendants oppose the entry of summary judgment [DE 18 at 4-8; DE 21 at 5-7] and

dispute the application of the A&B exclusion. Defendants argue that Berna and Monaldi did not

6

case 2:12-cv-00011-JD document 29 filed 06/04/13 page 6 of 15
commit assault and battery and they did not intend to injure Merry. Defendants further believe

that a genuine issue of material fact exists relative to the actual cause of Merry’s broken leg. 

The Court disagrees.

In this case, the language of the Policy clearly and unambiguously excludes injuries

arising out of assault and battery by stating that “‘bodily injury,’ . . . or any injury, loss, or

damage arising out of: . . . [a]ssault and/or [b]attery” is not covered under the Policy. Granted,

“assault” and “battery” are not terms which are defined in the policy, but not every word in a

contract must be defined. Sans v. Monticello Ins. Co., 676 N.E.2d 1099, 1101 (Ind. Ct. App.

1997). The clear meaning of assault and battery refers to an intentional touching or the

apprehension of such, and does not require an intent to injure. See Singh v. Lyday,889 N.E.2d

342, 360 (Ind. Ct. App. 2008) (“[o]ne is liable for the tort of battery if ‘(a) he acts intending to

cause a harmful or offensive contact with the person of the other or third person, or an imminent

apprehension of such contact, and (b) a harmful contact with the person of the other directly or

indirectly results.’”) (citing Mullins v. Parkview Hosp., Inc., 865 N.E.2d 608, 610 (Ind. 2007)

(quoting Restatement (Second) of Torts § 13 (1965))). And just as an intentional touching may

be a basis for a battery claim, it also may be a basis for an assault claim. Lessley v. City of

Madison, Ind., 654 F.Supp.2d 877, 914 (S.D. Ind. 2009) (Hamilton, J.) (citing Singh, 889 N.E.2d

at 360). There is no other reasonable interpretation of these contract terms. See e.g., Knight v.

Ind. Ins. Co., 871 N.E.2d 357, 362 (Ind. Ct. App. 2007) (“[a]n assault creates an apprehension of

imminent harmful or offensive contact, while battery is the intentional harmful or offensive

contact . . . [a] touching, however slight, may constitute an assault and battery”) (citation and

internal citation omitted); Smock v. American Equity Ins. Co., 748 N.E.2d 432, 436 (Ind. Ct.

7

case 2:12-cv-00011-JD document 29 filed 06/04/13 page 7 of 15
App. 2001) (“[t]he policy does not define [battery for purposes of the assault and battery

exclusion], but an English language dictionary provides that a ‘battery’ is ‘the act of battering,

beating, or pounding . . . [the] illegal beating or touching of another person’”) (citing Webster’s

New World Dictionary 118 (3rd college ed. 1988)); Merriam-Webster’s Collegiate Dictionary

73, 104 (11th ed. 2003) (defining battery as “an offensive touching or use of force on a person

without the person’s consent” and defining assault as “a threat or attempt to inflict offensive

physical contact or bodily harm on a person . . . that puts the person in immediate danger of or in

apprehension of such harm or contact.”). Notably, the parties do not argue that either of the

terms are ambiguous, nor do they present alternative interpretations for the terms “assault and

battery.” [DE 16 at 9; DE 18 at 3-4; DE 21 at 4-7; DE 23 at 2-7]. Rather, Defendants seemingly

argue disputed issues of material fact exist concerning whether an assault and battery occurred

during the encounter inside Growler’s. 

 To the extent Berna and Monaldi draw the unsupported legal conclusion in their

affidavits that they did not assault and batter Merry, their undisputed actions belie such an

assertion. Here, the designated evidence shows that by their own admissions Berna “shoved”

“picked up” and “grabbed” Merry who resisted, while Monaldi “picked up” and “carried” Merry

out of the bar. And Merry’s own admissions establish that he physically resisted by grabbing one

of the bouncer’s wrists to prevent the bouncer from punching Merry. No reasonable trier of fact

could draw the inference that the acts committed during the physical altercation were accidental,

welcomed, or unoffensive. What Berna did was a battery, what Monaldi did was a battery, and

what Merry did was a battery.1 Moreover, the facts of this case are readily distinguished from

1

And any claim of self-defense does not purge an act of its intended nature, instead, it is a justification for

intended action. Home Ins. Co. v. Neilsen, 332 N.E.2d 240, 244 (Ind. Ct. App. 1975).

8

case 2:12-cv-00011-JD document 29 filed 06/04/13 page 8 of 15
cases involving material disputes over whether the intent to apply the force constituting battery

is established. See Sans, 676 N.E.2d at 1104 (the court was not prepared to hold “as a matter of

law” that the gun could not have been fired accidentally, and therefore it was genuinely disputed

whether the shooting of the gun was intentional, and as a result, whether the shooting constituted

an assault and battery); Franklin Gen. Ins. Co. v. Hamilton, 133 N.E.2d 93 (Ind. Ct. App. 1956)

(holding the evidence raised a question of fact as to whether injury was the result of an assault

and battery because the insured driver did not see the victim near the car before backing up and

the driver tried to stop as soon as he saw the victim). Therefore, unlike the possible accidental

touching involved in Sans and Franklin, the Defendants’ own uncontroverted admissions,

although each somewhat unique, establish they committed assault and battery because the

touchings were intended.2

Essex and the Defendants further disagree about the appropriate intent element required

of an assault and battery: Defendants argue Essex has not provided evidence which leads to the

sole and only conclusion that the conduct of Berna and Monaldi showed they had the requisite

intent to injure Merry; whereas, Essex argues that the only reasonable inference that need be

drawn from the evidence establishes the bouncers’ intent to apply the force constituting battery

and therefore Essex is entitled to judgment as a matter of law.

Defendants rely on Sans v. Monticello Ins. Co., 676 N.E.2d 1099 (Ind. Ct. App. 1997)

wherein the insurance policy at issue covered “bodily injury . . . neither expected nor intended

from the standpoint of the insured” (“first clause”) and excluded coverage for “bodily injury . . .

2

As discussed infra, the Policy also excludes coverage for bodily injury arising out of Berna, Monaldi,

and/or Merry’s “act[s] or omission[s] in connection with the prevention or suppression of such acts.” The

uncontested facts similarly establish the application of this exclusion. 

9

case 2:12-cv-00011-JD document 29 filed 06/04/13 page 9 of 15
arising out of assault & battery or out of any act or omission in connection with the prevention or

suppression of such acts” (“second clause”). Sans v. Monticello Ins. Co., 718 N.E.2d 814, 817 n.

6, 7 (Ind. Ct. App. 1999). Clearly, the A&B exclusion at issue in this case, is akin to the second

clause involved in Sans. However, Defendants mistakenly rely on the first clause of Sans which

concerns an “expected or intended” injury, and thus argue that the bouncers must have intended

to injure Merry in order for coverage to be denied. Sans, 676 N.E.2d at 1102-04 (“We have

analyzed Indiana law with respect to standard ‘intended or expected’ exclusionary clauses . . .”). 

Not only did Sans analyze “intended or expected” exclusionary clauses, but it relied on cases

that involved the same type of clause. See id. (quoting Stevenson v. Hamilton Mutual Ins. Co.,

672 N.E.2d 467, 470-72 (Ind. Ct. App. 1996) (involving a standard policy exclusion for

intentional or expected conduct)). In turn, the court in Stevenson relied on Trisler v. Ind. Ins.

Co., 575 N.E.2d 1021 (Ind. Ct. App. 1991) which explicitly discussed Indiana’s analysis of

standard “intended or expected” exclusionary clauses. And similar to the first clause of Sans,

Trisler involved an insurance policy which provided coverage for “an accident . . . which results

in personal injury . . . neither expected nor intended from the standpoint of the insured,” and

excluded coverage for acts committed by Trisler “with intent to cause personal injury.” Trisler,

575 N.E.2d at 1023-24. Thus, while it is clear that “intended or expected” clauses requires an

intent to injure, the same clause is not at issue in this case.

The distinction between bodily injury “caused intentionally” versus contracts which

expressly exclude damages resulting from an assault and battery was similarly addressed in

Home Ins. Co. v. Neilsen, 332 N.E.2d 240 (Ind. Ct. App. 1975). In Neilsen, the Court noted that

the contract did not expressly exclude damages from an assault and battery, “[i]nstead, it speaks

10

case 2:12-cv-00011-JD document 29 filed 06/04/13 page 10 of 15
of injuries caused intentionally.” Id. at 243. The Court determined that the exclusion for “bodily

injury . . . caused intentionally” was ambiguous, and therefore the policy was construed against

the insurer to exclude coverage for “an intentional act with was intended to cause injury.” Id. at

244. However, even employing an interpretation favoring the insured, the court still held that

insurance coverage was properly excluded where the insured had admitted that he had

intentionally struck the other man although he had not intended to cause injury. Id. at 243-44. 

The Indiana Court of Appeals reasoned that the insured could not avoid the inference of intent to

harm that necessarily follows the deliberate blow to the victim’s face. Id. at 451; but see, State

Farm Fire & Casualty Co., 858 F.Supp.2d 971 (N.D. Ind. 2012) (Miller, J.) (holding that a

genuine issue of material fact existed as to whether the insured’s son intended to cause harm,

although he admittedly intentionally struck another minor, because the policy only excluded

coverage for “bodily injury . . . which is either expected or intended by the insured”).

All of this is to say, that unlike the first clause of Sans, the Essex A&B exclusion does

not contain an “intentional or expected injury” clause, rather it clearly excludes coverage for

injuries arising out of an assault or battery. Given this, the holding of Smock v. American Equity

Ins. Co., 748 N.E.2d 432, 435 (Ind. Ct. App. 2001) supports the conclusion that Essex’s A&B

exclusion applies making summary judgment appropriate. In Smock, the Strawn’s (parents of

their deceased son Michael), sued KTK (owner and operator of Body Shop Showclub), the

club’s bouncer Ronald Smock, and Steven Toscano (a friend of Michael’s) for negligently

causing Michael’s death and negligently hiring and training Smock. 748 N.E.2d at 434. The

lawsuit was based on an incident wherein Michael was patronizing the club when he became

belligerent after consuming alcohol and marijuana, and was removed from the club by Smock.

11

case 2:12-cv-00011-JD document 29 filed 06/04/13 page 11 of 15
Id. at 433. Toscano attempted to take Michael home, but Michael resisted by striking Toscano.

Id. At one point, Toscano placed his hand on Michael’s neck. Id. Smock then intervened by

placing Michael in a “sleeper hold” rendering Michael unconscious. Id. Ultimately, Michael

was later found dead due to asphyxiation from manual strangulation, but it could not be

determined whether death resulted from the “sleeper hold” or from compression by a broader

surface, such as a forearm or foot. Id. at 433-34.

The Smock Court specifically analyzed whether the conduct alleged was excluded from

coverage by the policy which barred coverage for bodily injury:

(1) Expected or intended from the standpoint of any insured; or

(2) Arising out of an assault or battery, provoked or unprovoked, or out of any act or

omission in connection with prevention or suppression of an assault or battery,

committed by any Insured or an employee or agent of the insured.

748 N.E.2d at 435. The Court noted that even though “[t]he parties vehemently disagree[d] as to

whether Smock intended to inflict injury and, thus, whether the ‘expected or intended’ part of the

exclusion applies,” it need not decide the issue because the case was readily decided on the

second clause of the policy relating to batteries. Id. at 435 n. 5. Concluding that what Smock did

was a battery, what Toscano did was a battery, and what Michael did was a battery, the Court

determined that under the exclusion, there is no coverage if bodily injury arose out of an

employee’s battery. Id. at 435. And although it was uncertain whether Smock’s act of placing a

“sleeper hold” on Michael’s neck actually caused Michael’s death, the Court held that to the

extent the underlying wrongful death complaint asserts that KTK and Smock are liable for

Smock’s battery, the claims are excluded under the assault and battery provision. Id.

Relevant to Merry’s negligence claims, the Court further determined that the assault and

battery clause excluded any claim for negligence relating to Smock’s failure to prevent or

12

case 2:12-cv-00011-JD document 29 filed 06/04/13 page 12 of 15
suppress batteries committed by third parties. Smock, 748 N.E.2d at 436. Thus, a “necessary

corollary is that the exclusion also applies to KTK under the theory of respondeat superior.”

Smock, 748 N.E.2d at 436. Going one step further, even though the policy did not expressly

exempt from coverage the claim against KTK for negligent hiring, supervision, and training of

Smock, the Court explained that the exclusion expressly applied to bodily injury arising out of an

employer’s acts or omissions relating to prevention or suppression of a battery, and therefore

even if the batteries were the result of KTK’s own negligence the exclusion applied. Id.

As in Smock, Essex’s A&B exclusion prevents coverage for: “‘bodily injury,’ . . . or any

injury, loss, or damage arising out of: . . . [a]ssault and/or [b]attery, or out of any act or omission

in connection with the prevention or suppression of such acts.” However, Essex’s policy is more

broad in two respects: it explicitly excludes coverage for the same whether “caused by or at the

instigation or direction of any Insured, Insured’s employees, patrons or any other person”; and, it

explicitly precludes coverage “with respect to any charges or allegations of negligent hiring,

training, placement or supervision.” 

In this case, Merry has admitted that he is absolutely certain his injuries occurred during

the encounter with the bouncers while inside Growlers, even though he is uncertain as to what

actually caused his broken leg.3

 Additionally, it is uncontested that just prior to the altercation

between Merry and the bouncers, things were escalated between Merry and Cory who had a hold

of each others’ necks (although Merry suggests it was simply to facilitate their communication in

loud surroundings) and Berna believed these patrons were engaged in a “physical altercation.”

3

Merry argues another patron or employee may have stepped on his leg or the loud noise and crowd

contributed to his injury by limiting communication thereby causing the altercation. But the actual cause of Merry’s

injury matters not since the injuries undisputedly arose out of an assault and battery (or even prevention thereof)

during the encounter with the bouncers. See Smock, 748 N.E.2d at 435. 

13

case 2:12-cv-00011-JD document 29 filed 06/04/13 page 13 of 15
Thereafter, Monaldi intervened believing Merry and Berna were fighting. Even Merry admitted

that the bouncers likely came over because of the “neck holding” and that he physically resisted

the bouncers to prevent one of the bouncers from hitting him. Thus, the A&B exclusion prevents

coverage for Merry’s bodily injury which arose not only from the assault and battery, but out of

Berna, Monaldi, and Merry’s acts or omissions in connection with the prevention or suppression

of such.

As in Smock, Merry’s bodily injuries arose out of Berna and Monaldi’s battery of Merry,

out of their acts or omissions in connection with the prevention or suppression of batteries by

others (like Coy or Merry), out of Merry’s prevention or suppression of a battery, and/or out of

the Good Drinks, LLC and its owners’ acts or omissions relating to any said battery (including

the possibility that the bar was too crowded and that one of the patrons caused the injury or the

music too loud—as Defendants contend). There simply is no basis for the argument that Merry’s

state court claims did not arise out of an assault and battery occurring inside Growler’s, even if

the actual cause of Merry’s broken leg is unknown—because it is undisputed that the injury

occurred during that incident. Consequently, the A&B exclusion clearly and unambiguously

precludes coverage for the claims raised in Merry’s underlying state court action because the

claims were brought for injuries that arose from the assault and battery incident at Growler’s.

Since there is no genuine issue of material fact that the Policy clearly excludes the

conduct complained of in Merry’s state court complaint, Essex is entitled to judgment as a matter

of law. It is for the state court in the underlying case to determine the merit of Merry’s claims

and the liability, if any, of the Defendants. In the Seventh Circuit, an insurance company

ordinarily cannot obtain declaratory judgment regarding its duty to indemnify before its insured

14

case 2:12-cv-00011-JD document 29 filed 06/04/13 page 14 of 15
is found liable. Lear Corp. v. Johnson Elec. Holdings, Ltd, 353 F.3d 580, 583 (7th Cir. 2003).

Indeed, “the duty to indemnify is not ripe for adjudication until the insured is in fact held liable

in the underlying suit.” Nationwide Ins. v. Zavalis, 52 F.3d 689, 693 (7th Cir. 1995). When a

party seeks a declaratory judgment on an unripe duty-to-indemnify claim, it is proper for the

Court “to dismiss that aspect of the case[.]” Med. Assur. Co. v. Hellman, 610 F.3d 371, 375 (7th

Cir. 2010). Therefore, the Court finds that any declaratory judgment concerning Essex’s duty to

indemnify issued prior to the establishment of liability would be an improper exercise of its

authority, and would amount to an adjudication of a dispute that is not ripe.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS the Plaintiff’s Motion for Summary

Judgment, and judgment shall be entered in favor of Plaintiff Essex Insurance Company, Inc.

declaring that Essex has no duty under the Policy to defend against any of Merry’s claims

alleged in his state court complaint filed in Lake County, 45D03-1110-CT-0195. Any claim

relative to Essex’s duty to indemnify is DISMISSED WITHOUT PREJUDICE.

SO ORDERED.

ENTERED: June 4, 2013 

 /s/ JON E. DEGUILIO 

Judge

United States District Court

15

case 2:12-cv-00011-JD document 29 filed 06/04/13 page 15 of 15