Scotties Mdewakanton, Inc., d/b/a Knickerbockers Bar & Cafe, Appellant, vs. Credit General Insurance Company, Respondent.

may not be cited except as provided by

Minn. Stat. sec. 480 A. 08, subd. 3 (1996).

 STATE OF MINNESOTA

 IN COURT OF APPEALS

C8-98-556

Scotties Mdewakanton, Inc.,

d/b/a Knickerbockers Bar & Cafe,

Appellant,

vs.

Credit General Insurance Company,

Respondent.

Filed August 18, 1998

Affirmed

Harten, Judge

Hennepin County District Court

File No. 9519019

Richard A. Beens, Paul Hyun-Yeul Yoo, Felhaber, Larson, Fenlon & Vogt, P.A., 4200 First Bank Place, 601 Second Avenue South, Minneapolis, MN 55402-4302 (for appellant)

James P. Ashley, Chadwick & Associates, Americana Bank Building, Suite 210, 600 West 79th Street, P.O. Box 623, Chanhassen, MN 55317 (for respondent) Considered and decided by Harten, Presiding Judge, Forsberg, Judge,* and Thoreen, Judge.[**]

  U N P U B L I S H E D O P I N I O N

 HARTEN, Judge

Appellant Scotties Mdewakanton, Inc., d/b/a Knickerbockers Bar & Cafe, challenges adverse summary judgment in its declaratory judgment action in which it sought to establish that a commercial general liability policy issued by respondent Credit General Insurance Company required respondent to indemnify and defend appellant in an underlying dram shop action brought by an assault victim. We affirm.

 FACTS

On July 28, 1994, an assault occurred involving two participants in a billiards tournament at Knickerbocker's Bar & Cafe. The assailant struck the victim over the head with a billiards cue. The victim brought an action against the assailant for battery and against appellant for dram shop liability.

Appellant had a commercial general liability policy issued by respondent Credit General Insurance Company under the terms of which appellant expected respondent to defend it against and provide coverage for the dram shop action. The insuring agreement of the policy, in effect from March 16, 1994 to July 1, 1995, provided that respondent would pay those sums that appellant insured became legally obligated to pay as damages because of "bodily injury" or "property damage" within the policy terms.

A policy endorsement contained the following assault and battery exclusion:

1. This insurance does not apply to "bodily injury" or "property damage" arising out of:

(a) the actual or threatened assault or battery or the failure to suppress or prevent such action by the insured or by anyone else for whom the insured is legally responsible, or

(b) the negligent:

(i) employment;

(ii) investigation;

(iii) supervision;

(iv) training;

(v) retention;

of a person for whom any insured is or ever was legally responsible and whose conduct would be excluded by (a) above.

In addition, the original policy contained a liquor liability exclusion stating that the policy would not cover:

c. "Bodily injury" or "property damage" for which any insured may be held liable by reason of:

(1) Causing or contributing to the intoxication of any person;

(2) The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or

(3) Any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages.

For an additional premium, however, appellant purchased a liquor liability endorsement (effective July 1, 1994 to July 1, 1995) that deleted the original liquor liability exclusion and replaced it with the following exclusion that denied coverage for

c. "Bodily injury" or "property damage" for which the insured may be held liable by reason of causing or contributing to the intoxication of any person if such intoxicated person:

1. Was sold, served, or furnished with any alcoholic beverage while any required license is suspended or after such license expires, is cancelled or revoked; or

2. Was sold, served, or furnished with any alcoholic beverage not authorized to be sold; or

3. Was sold, served, or furnished with any alcoholic beverage either before or after operating hours allowed under any laws, license, or permit terms.

Contending that the victim's cause of action was within the policy's assault and battery exclusion, respondent denied coverage. Appellant disagreed and commenced a declaratory action against respondent, seeking an order requiring respondent to defend appellant. The district court held that the assault and battery exclusion did not apply to any liquor liability claims and granted summary judgment for appellant, directing respondent to defend and indemnify appellant in the dram shop action. Respondent appealed to this court. We reversed, holding that the existence of the liquor liability endorsement did not preclude the application of the assault and battery exclusion. Scotties Mdewakanton, Inc. v. Credit Gen. Ins. Co., No. C6-96-2618 (Minn. App. July 22, 1997), review denied (Minn. Sept. 25, 1997), (Scotties I). We also remanded, instructing the district court to determine whether the assault and battery exclusion applied. The district court held on remand that the assault and battery exclusion applied; it granted summary judgment for respondent. In so holding, the district court determined that the exclusion applied to all claims arising out of assault and battery--whether committed by the owner, an employee, or anyone else for whom the insured is responsible. This appeal followed.

D E C I S I O N

We review de novo a district court's ruling on a motion for summary judgment. Zip Sort, Inc., v. Commissioner of Revenue, 567 N.W.2d 34, 37 (Minn. 1997). We also review de novo a district court's interpretation of an insurance policy. American Commerce Ins. Brokers, Inc. v. Minnesota Mut. Fire and Cas. Co., 551 N.W.2d 224, 227 (Minn. 1996). In an action to determine coverage, unambiguous language in an insurance policy must be accorded its plain and ordinary meaning. SCSC Corp. v. Allied Mut. Ins. Co., 536 N.W.2d 305, 311 (Minn. 1995).

 1. Policy Ambiguity

Appellant alleges that the assault and battery exclusion is subject to two interpretations and is therefore ambiguous. Appellant asserts that on one hand the exclusionary language can be read to exclude: (1) any actual or threatened assault or battery when it is committed by appellant, (2) any actual or threatened assault or battery committed by those for whom appellant is legally responsible, i.e., appellant's employees, and (3) the failure of appellant or its employees to prevent such assault and battery by appellant or its employees. But appellant argues that on the other hand the endorsement can be read to exclude coverage for any assault or battery, or the failure of the insured or its employees to prevent such assault and battery, regardless of who commits it.

Respondent asserts that this issue was decided in its favor in Scotties I and is now the law of the case. In Scotties I, however, we held that the existence of the liquor liability endorsement did not render the assault and battery exclusion meaningless and remanded for a determination as to whether the claim was excluded under the assault and battery provisions. Scotties I is not law of the case on the issue now before us.

Insurance policy language will be found ambiguous only if it is reasonably subject to more than one interpretation. American Commerce Ins. Brokers, 551 N.W.2d at 227. If an ambiguity exists, the language is construed against the insurer. Id. But a court must "fastidiously guard against the invitation to `create ambiguities' where none exist." Id. (quoting Colombia Heights Motors v. Allstate Ins. Co., 275 N.W.2d 32, 36 (Minn. 1979)).

The ambiguity issue raised here was explicitly addressed by this court in Kabanuk Diversified Invs., Inc., v. Credit Gen. Ins. Co., 553 N.W.2d 65, 70-72 (Minn. App. 1996), review denied (Minn. Oct. 28, 1996). In fact, identical policy language was involved in Kabanuk. In examining that language, we held that the terms of the assault and battery exclusion were clear and unambiguous; we specified that the assault and battery exclusion excludes from coverage any claim against an insured that arises out of an assault or battery, regardless of who commits the assault. Id. at 72. The district court here relied on Kabanuk in making its decision.

We agree with the district court and hold that the policy language is clear and unambiguous. The assault and battery exclusion language,

[t]his insurance does not apply to "bodily injury" or "property damage" arising out of the actual or threatened assault or battery or the failure to suppress or prevent such action by the insured or by anyone else for whom the insured is legally responsible,

unambiguously means that the exclusion excludes from coverage claims arising out of (1) an actual or threatened assault or battery by anyone, or (2) the failure to prevent such an assault or battery by the insured or by anyone else for whom the insured is legally responsible.

 2. Whether Claim Arose from Battery

The burden of proving coverage rests with the insured, while the burden of proving an exclusion rests with the insurer. Domtar, Inc. v. Niagara Fire Ins. Co., 563 N.W.2d 724, 736 (Minn. 1997). Whether an insurer is obligated to defend is determined by comparing the complaint with the relevant policy language. Garvis v. Employers Mut. Cas. Co., 497 N.W.2d 254, 256 (Minn. 1993).

Appellant alleges that the victim's dram shop claim in the underlying action arises from appellant's sale of alcohol to the assailant, rather than from the assailant's assault on the victim, and therefore the exclusion does not apply. More specifically, appellant argues that in determining whether the dram shop claim arose from an assault or battery, a court does not look to the underlying events, but rather to whether the victim must prevail on a legal claim of assault or battery to maintain the dram shop claim against appellant. He claims that because the victim need not prevail in an assault or battery claim to maintain a dram shop action against appellant, the dram shop claim did not arise out of an assault and battery. It is settled, however, that in determining whether a claim "arises out of" an assault or battery, a court should ignore the legal theory of the complaint and instead look to whether the plaintiff's claim is causally connected to an assault or battery. Roloff v. Taste of Minnesota, 488 N.W.2d 325, 326 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992). "Arising out of" involves only a causal connection, not proximate cause. Id.

Minn. Stat. § 340 A. 801 governs civil dram shop actions and reads:

A spouse, child, parent, guardian, employer, or other person injured in person, property, or means of support, or who incurs other pecuniary loss by an intoxicated person or by the intoxication of another person, has a right of action in the person's own name for all damages sustained against a person who caused the intoxication of that person by illegally selling alcoholic beverages.

Minn. Stat. § 340 A. 801, subd. 1 (1996). To maintain a dram shop action, a defendant must inappropriately sell alcohol to a person whose victim suffers injury. Here, the victim's complaint alleges injury from being hit over the head with a billiards cue. "But for" this battery, the victim would have suffered no injuries and would not have been able to maintain a dram shop action. Thus, the victim's dram shop action at least "arose out of" an assault and battery, and the assault and battery exclusion governs the claim.

Affirmed.

*Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[**]Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.