DAVID RODRIGUEZ et al. v. SOONYONG GOODLIN, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5887-04T15887-04T1

DAVID RODRIGUEZ and PATRICIA

CASTRO, h/w,

Plaintiffs,

v.

SOONYONG GOODLIN, individually

and as agent, servant, and/or

employee of SHERLOCK'S LOUNGE &

LIQUORS, SHERLOCK'S LOUNGE &

LIQUORS, individually, KIMLOR

CORPORATION, individually, and as

agent, servant, and/or employee of

SHERLOCK'S LOUNGE & LIQUORS,

ADDOL, INC., individually, and as

agent, servant, and/or employee of

SHERLOCK'S LOUNGE & LIQUORS,

Defendants,

SOONYONG GOODLIN, SHERLOCK'S

LOUNGE & LIQUORS, KIMLOR

CORPORATION, and ADDOL, INC.,

Third-Party Plaintiffs-

Appellants,

v.

RUBEN ALMEIDA,

Third-Party Defendant,

CERTAIN UNDERWRITERS AT LLOYD'S

OF LONDON, LLOYD'S UNDERWRITERS,

AND LLOYD'S, LONDON,

Third-Party Defendants-

Respondents.

 
Argued August 9, 2006 - Decided August 21, 2006

Before Judges Kestin and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, ATL-L-515-03.

George L. Farmer argued the cause for appellants.

Gerard W. Quinn argued the cause for respondents (Cooper Levenson April Niedelman & Wagenheim, attorneys; Mr. Quinn, on the brief).

PER CURIAM

Ruben Almeida stabbed David Rodriguez in Sherlock's Lounge & Liquors, a tavern in Atlantic City. Rodriguez sued Sherlock's for injuries he sustained in the assault. Sherlock's filed a third-party complaint against Almeida; and against Lloyd's of London (Lloyd's) for coverage under a commercial general liability policy it issued insuring Sherlock's.

Rodriguez's claim against Sherlock's was settled for $45,000. On appeal is the Law Division's summary judgment dismissing Sherlock's claim against Lloyd's. We affirm.

In his complaint and amended complaints, Rodriguez claimed Sherlock's failed to provide adequate security. He alleged that Sherlock's "carelessly and negligently failed to prohibit an altercation from breaking out on the premises."

For purposes of the summary judgment motion, it was undisputed that Almeida stabbed Rodriguez while on Sherlock's premises. According to Rodriguez's deposition, he initially entered Sherlock's at approximately 9:30 p.m. on March 18, 2001, and stayed until about midnight. During that time, he drank approximately five beers. He observed Almeida in the bar between 10:00 and 11:00 p.m., and saw him drink beer, although Rodriguez did not know how many beers Almeida had consumed. Rodriguez considered Almeida drunk because "the way he was talking seem[ed] like he was drunk." According to Rodriguez, Almeida "was talking senseless, he was talking he was mad." The parties apparently had a conversation about forty dollars Rodriguez owed Almeida.

Rodriguez left the bar at about midnight, went home, and returned fifteen to thirty minutes later. When he returned, he drank an additional three beers and consumed two "20s" of cocaine in the bathroom. This all occurred before Rodriguez and Almeida began fighting at approximately 5:27 a.m. on March 19, 2001; during the fight, Almeida pulled a knife and stabbed Rodriguez.

In Sherlock's statement of material facts submitted in support of its summary judgment motion, it claimed that "[a]t the time of the altercation, Almeida was not intoxicated and did not show any visible signs of intoxication."

Lloyd's denied coverage based on an assault and battery exclusion in its general liability policy. That exclusion says:

This insurance does not apply to:

A. Assault and/or Battery committed or alleged to have been committed by any person whosoever regardless of degree of culpability or intent; or

B. Any actual or alleged act or omission in the employment, investigation, supervision, reporting or failing to report to the proper authorities or retention of a person for whom any insured is or was legally responsible which results in an assault and/or battery; or

C. Any actual or alleged act or omission in the prevention or suppression of an assault and/or battery.

All other terms and conditions of this policy remain unchanged.

In addition to general liability coverage, Lloyd's also provided liquor liability coverage to Sherlock's. The policy says Lloyd's will provide coverage if Sherlock's becomes "legally obligated to pay as damages because of 'injury' to which this insurance applies if liability for such 'injury' is imposed on the insured by reason of the selling, serving or furnishing of any alcoholic beverage."

Judge Perskie found that the assault and battery exclusion was applicable, and because the assault did not occur as the result of the selling, serving or furnishing of an alcoholic beverage, no liquor liability coverage existed for the assault. In addressing Sherlock's motion, the judge found:

For purposes of this discussion the material facts are that the plaintiff was injured as a result of an assault and battery that took place upon him after he and the third party defendant Almeida were in the defendants' premises and after each of them had consumed some alcoholic beverage. There is no suggestion in the facts of this case that the assaulter, Almeida, was intoxicated or even, for that matter, that Rodriguez was or that either was served when apparently or visibly intoxicated. There is no allegation by the plaintiff against the defendant resulting or arising out of its service of alcoholic beverage or in any way suggesting that the service of alcoholic beverage by the defendant was in any way actionable or improper. Rather, the suggestion is that the defendant failed to maintain adequate security in its premises.

The third party complaint as, in effect, amended on the record here today asserts a claim for coverage against the third party defendant pursuant to the liquor liability endorsement of its liability policy, and specifically at the section of the policy that we've referred to as page 53 under the date stamp. I am satisfied that there is no exclusion under that policy for alcoholic - for assault and battery events and therefore, that policy provides coverage if it's to be interpreted as Mr. Farmer interprets it and it doesn't provide coverage if it's to be interpreted as Ms. McGuigan interprets it, and that difference of interpretation is, on the very simple question, simple is the wrong word - uncomplicated question of whether the policy is intended to cover actions in which the service of the alcoholic beverage is factually unrelated to the cause of action or it is not.

I am satisfied that the proper interpretation of the policy is that . . . to trigger the . . . coverage under alcoholic beverage there has to be some factual nexus and factual relationship between the service of the alcoholic beverage on the one hand and the damage claimed by the complainant against the defendant on the other. That does not exist in this case . . . .

On reconsideration, the court framed the liquor liability issue as follows: "The question is whether there is any basis in the record to indicate that it was the service of or the consumption of liquor that was in any way related to the happening of the event." The judge answered the question in the negative. He found:

All of the evidence, to the contrary, suggests that these people had a history and that the bar was simply the locus of what eventually arose out of their history, and there is no reason to believe from the snippet of deposition testimony that has been offered that the incident arose in any way out of the bar's service of alcohol.

Rejecting plaintiff's claim that the assault and battery exclusion did not apply under the circumstances, the judge said:

In this instance . . . the suggestion is that the bar failed in its supervisory responsibilities and in the creation of a dangerous condition. . . .

So the focal point for me is to look again at the language of this policy, the one I have before me, and to determine against the [L.C.S., Inc. v. Lexington Ins. Co., 371 N.J. Super. 482 (App. Div. 2004)] standard whether it is so clear to the average reader that the kind of incident alleged in this complaint is intended to be excluded. I find that it is. I find that the language of this policy, while not tracking word for word the language of the [Stafford v. T.H.E. Ins. Co., 309 N.J. Super. 97 (App. Div. 1998)] policy that the court expressly indicated would suffice, is nevertheless much closer to Stafford than it is to [L.C.S.], and I find that the average reader reading these three exclusions, A, B, and C, or A, B, or C, because they are in the disjunctive, cannot but conclude that the kind of incident alleged in this complaint, a failure to supervise two patrons of a bar who get into a fight and one hurts the other by assault and battery, cannot . . . but conclude that that kind of act was intended by this language to be excluded from coverage.

We agree with the judge's analysis and conclusions. Rodriguez's injuries resulted from Almeida's assault. The assault and battery exclusion in the subject policy precludes coverage for an assault and battery and for any act or omission "in the prevention or suppression of an assault and/or battery." Given that the terms of the policy are clear, it is to be enforced as written. Stafford, supra, 309 N.J. Super. at 103. While we are mindful that coverage provisions are broadly interpreted and exclusionary clauses are strictly interpreted, here, the policy is not ambiguous, and we may not ignore the clear meaning and intent of the exclusion provision. See ibid.

We also agree with the trial judge that no coverage is afforded to Sherlock's under the liquor liability provision of the policy. As the judge noted, no evidence exists from which a jury could reasonably conclude that the assault was the result of the selling, serving or furnishing of any alcoholic beverage. To the contrary, the only reasonable inference is that the altercation took place because Rodriguez owed Almeida money.

What is most significant, however, is that no evidence is extant from which a jury could reasonably conclude that Almeida appeared intoxicated when he was served the alcoholic beverages. Without those proofs, plaintiff has no cause of action under the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act, N.J.S.A. 2A:22A-1 to -7, commonly known as the dram shop law, for injury resulting from the sale of alcoholic beverages. See Truchan v. Sayreville Bar & Restaurant, Inc., 323 N.J. Super. 40, 51 (App. Div. 1999). That Rodriguez considered Almeida to be drunk would not permit a jury, without speculating, to reasonably conclude that Almeida was served while visibly intoxicated.

Nor, for that matter, did plaintiff even allege in its complaint, amended complaint or second amended complaint, a cause of action against Sherlock's based on negligence in the service of alcohol. The allegations in the complaint simply related to Sherlock's alleged lack of security, which was excluded from coverage. Consequently, Lloyds had no duty to defend. See L.C.S., Inc., supra, 371 N.J. Super. at 490-91.

We affirm substantially for the reasons expressed by Judge Perskie in his decisions from the bench on April 30, 2004 and April 1, 2005, as modified by his June 11, 2004 memorandum of decision.

Affirmed.

 

In this opinion, we refer collectively to the tavern and its owners and employees as Sherlock's.

(continued)

(continued)

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A-5887-04T1

 

August 21, 2006