UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 07-1174

ST. PAUL REINSURANCE COMPANY, LIMITED, 

 Plaintiff – Appellee, 

 v. 

JOSEPH J. RIVIELLO, 

 Defendant – Appellant, 

 and 

OLLIE'S SEAFOOD GRILLE AND BAR LLC; OLLIE'S BY THE BAY; 

CHRISTINE B. GOODMAN, 

 Defendants. 

No. 07-1203

ST. PAUL REINSURANCE COMPANY, LIMITED, 

 Plaintiff – Appellee, 

 v. 

OLLIE'S SEAFOOD GRILLE AND BAR LLC; OLLIE'S BY THE BAY; 

CHRISTINE B. GOODMAN, 

 Defendants – Appellants, 

 and 

JOSEPH J. RIVIELLO, 

 Defendant. 
Appeals from the United States District Court for the District 

of South Carolina, at Beaufort. Patrick Michael Duffy, District 

Judge. (9:06-cv-01080-PMD) 

Submitted: September 3, 2008 Decided: October 20, 2008 

Before MICHAEL, GREGORY, and SHEDD, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

John H. Tiller, Anne L. Ross, HAYNSWORTH SINKLER BOYD, P.A., 

Charleston, South Carolina, for Appellants Ollie’s Seafood 

Grille and Bar LLC, Ollie’s By the Bay, and Christine B. 

Goodman; Samuel S. Svalina, Beaufort, South Carolina, for 

Appellant Joseph J. Riviello. John S. Wilkerson, III, Nosizi 

Ralephata, TURNER PADGET GRAHAM & LANEY, P.A., Charleston, South 

Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 

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PER CURIAM: 

 In these consolidated cases, Ollie’s Seafood Grille and Bar 

LLC, Ollie’s by the Bay, Christine B. Goodman (collectively, 

“the Ollie’s appellants”), and Joseph J. Riviello appeal from 

the summary judgment entered in favor of St. Paul Reinsurance 

Company, Ltd. See St. Paul Reins. Co. v. Ollie’s Seafood Grille 

and Bar, LLC, 242 F.R.D. 348 (D.S.C. 2007). Finding no error, 

we affirm. 

 At all times pertinent to this case, Goodman owned Ollie’s 

by the Bay in Beaufort, South Carolina, through the limited 

liability company, Ollie’s Seafood & Grille, LLC. In September 

2001, Goodman purchased an insurance policy (the “Policy”) from 

St. Paul. The Policy included a Commercial General Liability 

Part (“CGL”) and a separate Liquor Liability Coverage Part. 

 In June 2005, Riviello filed suit in the Court of Common 

Pleas for Beaufort County against Jason Diggins, Richard 

Derleth, and the Ollie’s appellants. In that action, Riviello 

alleges that in June 2002 he visited Ollie’s by the Bay as an 

invitee and consumed alcoholic beverages on the premises. 

Diggins and Derleth, who were also invitees consuming alcoholic 

beverages at Ollie’s by the Bay, allegedly provoked an 

altercation and assaulted Riviello. As a result of the 

altercation, Riviello sustained serious injuries. In his first 

cause of action, Riviello asserts a claim against Diggins and 

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Derleth for assault and battery. In his second cause of action, 

brought against the Ollie’s appellants, Riviello asserts that he 

was injured as a result of their negligent or reckless breach of 

a duty to (1) provide a safe and controlled environment for the 

entertainment of invitees, (2) prevent the sale of alcohol to a 

person in an intoxicated condition, (3) prevent the sale of 

alcohol to minors, and (4) protect against the foreseeable 

criminal acts of third parties. Riviello seeks to recover for 

all injuries he allegedly sustained as a direct or proximate 

result of the assault and battery. 

 The Ollie’s appellants tendered the defense of the 

underlying lawsuit to St. Paul. In April 2006, St. Paul (which 

provided a defense under a reservation of rights) filed this 

declaratory judgment action seeking a declaration that it has no 

duty to defend or indemnify the Ollie’s appellants. St. Paul 

thereafter moved for summary judgment, arguing that the 

underlying lawsuit arises from an assault and battery and, 

therefore, is excluded from coverage under the plain language of 

the Policy. Specifically, St. Paul pointed to the CGL Part of 

the Policy, which excludes liability for claims arising out of 

“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 the Commercial 

Liquor Liability Coverage Part of the Policy, which excludes 

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“any claim arising out of an assault and/or battery . . . 

whether caused by the insured, an employee, a patron or any 

other person.” J.A. 45, 70. 

 The district court granted St. Paul’s summary judgment 

motion, holding that St. Paul has no duty to defend or indemnify 

the Ollie’s appellants in the underlying litigation. In 

reaching this decision, the district court applied common 

principles of South Carolina insurance contract law, and it 

relied particularly on the factually similar case of Sphere 

Drake Insurance Co. v. Litchfield, 438 S.E.2d 275 (S.C. App. 

1993). 

 In Sphere Drake, the state court of appeals held that an 

assault and battery exclusion in a nightclub’s insurance policy 

applied to a patron’s assault and battery and negligence claims 

arising from an incident in which the nightclub’s “bouncer” 

assaulted a patron. The policy in Sphere Drake excluded “claims 

arising out of Assault and Battery, whether caused by or at the 

direction of, the insured, his employees, patrons [or] any cause 

whatsoever.” Id. at 277. The court of appeals reasoned: 

[T]he separate acts of negligence alleged by [the 

plaintiff] are not actionable without the assault and 

battery, because without the assault and battery there 

would be no damage suffered as a result of the alleged 

negligence of [the defendant nightclub]. The 

negligence claims are for bodily injury “arising out 

of” assault and battery and come within the exclusion. 

Id.

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 Applying South Carolina law to the facts of this case, the 

district court concluded: 

In this case, the exclusionary clauses in both the 

Commercial General Liability Coverage Part and the 

Commercial Liquor Liability Coverage Part of the 

Policy unambiguously apply to the underlying lawsuit. 

In readily understandable language, these provisions 

exclude coverage for claims arising out of assault and 

battery, “whether caused by the insured, an employee, 

a patron or any other person” or by the “negligence of 

the insured, his employees, patrons or any causes 

whatsoever.” As was the case in Sphere Drake, the 

separate acts of negligence alleged in the underlying 

lawsuit would not be actionable without the assault 

and battery, because the only injuries suffered by 

Riviello were the result of the assault and battery. 

As such, the claim against the Ollie’s [appellants] 

for negligence “arose from” the alleged assault and 

battery, and are excluded from coverage under the 

plain terms of the Policy. 

242 F.R.D. at 351. 

 Summary judgment is appropriate “if the pleadings, 

depositions, answers to interrogatories, and admissions on file, 

together with the affidavits, if any, show that there is no 

genuine issue as to any material fact and that the moving party 

is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 

56(c). The relevant inquiry in a summary judgment analysis is 

“whether the evidence presents a sufficient disagreement to 

require submission to a jury or whether it is so one-sided that 

one party must prevail as a matter of law.” Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 251-52 (1986). “We review the 

district court’s order granting summary judgment de novo, 

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viewing the facts in the light most favorable to, and drawing 

all reasonable inferences in favor of, the nonmoving party.” 

Garofolo v. Donald B. Heslep Assocs., Inc., 405 F.3d 194, 198 

(4th Cir. 2005). 

 We have carefully reviewed the record, the parties’ briefs, 

and the controlling law. For the reasons articulated by the 

district court, we find that St. Paul is entitled as a matter of 

law to a declaration that it does not have a duty to defend or 

indemnify the Ollie’s appellants in the underlying lawsuit. 

Accordingly, we affirm the summary judgment.* We dispense with 

oral argument because the facts and legal contentions are 

adequately presented in the materials before the court and 

argument would not aid the decisional process. 

AFFIRMED

 *

While St. Paul’s summary judgment motion was pending, 

Riviello sought a continuance under Rule 56(f) in order to 

conduct further discovery. The district court denied Riviello’s 

request, concluding that he failed to show specific facts that 

he hoped to discover that would raise an issue of material fact 

regarding St. Paul’s duty to indemnify and defend the underlying 

lawsuit. See 242 F.R.D. at 352. Riviello appeals that aspect 

of the district court’s order. We hold that the district court 

did not abuse its discretion in denying his request. See 

generally Ingle v. Yelton, 439 F.3d 191, 195 (4th Cir. 2006) 

(stating standard of review).