An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-1690


Filed: 16 August 2005


v .                         Mecklenburg County
                            No. 04 CVS 3102

    Appeal by plaintiff from order entered 4 November 2004 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 15 June 2005.

    The Olive Law Firm, P.A., by Lee Olive, for plaintiff- appellant.

    Carruthers & Roth, P.A., by Kenneth R. Keller, for defendant- appellee.

    CALABRIA, Judge.

    Lakita D. Laney (“plaintiff”) appeals an order of the trial court granting summary judgment in a declaratory judgment action in favor of Penn-America Insurance Company (“defendant”) after determining that the issued insurance policy provided no coverage for plaintiff's injury. We affirm.
    On 4 September 2000, plaintiff decided to listen to music and have some drinks at the Palomino Club (the “club”), a lounge for males above the age of twenty-one and females above the age of eighteen. While at the club, plaintiff sustained serious injuries from a gunshot wound inflicted by an unidentified individual whohad brought a gun into the club. In August 2001, plaintiff filed suit against the owners of the club, alleging a cause of action for negligence and intentional infliction of emotional distress.
    In her complaint, plaintiff cited 188 incidents at the club, including “approximately 12 fights, 22 assaults, 24 disturbances, 4 assaults with a deadly weapon and 3 incidents involving a gun.” Plaintiff went on to allege that the owners of the club knew or should have known of “the violence and other criminal conduct occurring at the lounge[.]” Based upon the injury resulting from an unidentified but armed patron in the club, plaintiff asserted the owners were negligent for, inter alia, the following: (1) failing to have security measures to protect the patrons from assaults and other criminal conduct, (2) failing to have procedures for resolving violent situations, (3) failing to adequately train its employees to protect patrons from being injured by assaults and other criminal conduct, and (4) breaching its duty to protect and warn of foreseeable, intentional, criminal acts of third persons. Plaintiff's infliction of emotional distress claim was based on her allegation that it was reasonably foreseeable the owners' negligence would cause plaintiff severe emotional distress. The owners of the club failed to plead in a timely manner to plaintiff's complaint, and a default judgment in favor of plaintiff against the owners was entered on 25 July 2002 in the amount of $145,000.00 for her personal injuries.
    Prior to the time plaintiff sustained her injury at the club, defendant issued the owners of the club a commercial generalliability policy obligating defendant to pay any sum, up to a specified limit, that the insured became legally obligated to pay as damages due to bodily injury. However, the policy expressly excluded from coverage any costs for damages for bodily injury “resulting from assault and battery or physical altercations that occur in, on, near or away from the insured's premises[.]” Defendant was notified of the injuries sustained by plaintiff and conducted an investigation. Defendant notified the owners of the club that they had concluded, as a result of the investigation, that “no coverage for defense or indemnity of this matter [existed] as your policy is subject to an assault and battery exclusion[.]”
    On 19 February 2004, plaintiff filed a complaint seeking a declaratory judgment that, “as a matter of law, coverage exists under the aforementioned insurance policy for any claims or causes of action arising from the incident of September 4, 2000, and/or claims and causes of action raised by [plaintiff].” Defendant answered and counterclaimed for declaratory judgment. Defendant moved for summary judgment, and after a hearing on the matter, the trial court granted defendant's motion. Plaintiff appeals, asserting defendant failed to establish the applicability of the policy exclusion. We affirm.
    Summary judgment is appropriate when the moving party establishes that “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 any party is entitled to a judgment as amatter of law.” Dawes v. Nash Cty., 357 N.C. 442, 444, 584 S.E.2d 760, 762, reh'g denied, 357 N.C. 511, 587 S.E.2d 417 (2003) (quoting N.C. Gen. Stat. § 1A-1, Rule 56(c)). The general rule for the construction of insurance contracts requires that (1) any ambiguity in the meaning of a particular provision be resolved in favor of the insured and against the insurance company and (2) exclusions from and exceptions to undertakings by the company are disfavored and strictly construed to provide the coverage which would otherwise be afforded by the policy. Maddox v. Insurance Co., 303 N.C. 648, 650, 280 S.E.2d 907, 908 (1981). The insured “has the burden of bringing itself within the insuring language of the policy. Once it has been determined that the insuring language embraces the particular claim or injury, the burden then shifts to the insurer to prove that a policy exclusion excepts the particular injury from coverage.” Hobson Construction Co. v. Great American Ins. Co., 71 N.C. App. 586, 590, 322 S.E.2d 632, 635 (1984).
    The crux of plaintiff's argument is that the assault and battery exclusion does not apply because it must be strictly construed and defendant has the burden of establishing the necessary elements. Specifically, plaintiff contends defendant “cannot provide any evidence which would indicate if this gunshot was accidental or intentional.” While it is true that there is no direct evidence that the shooting was intentional, plaintiff's cause of action (upon which the judgment of $145,000.00 was awarded) is premised upon the negligence of the owners of the club in guarding and protecting against assault, criminal conduct, andother “foreseeable, intentional criminal acts of third persons.” It would be incongruous to allow plaintiff to obtain a judgment against the owners of the club based on intentional acts by a third person and then deny that the acts were intentional for purposes of obtaining a recovery on that judgment through the insurance policy issued by defendant in favor of the owners. Accordingly, plaintiff's argument that the shooting may not have been intentional cannot be sustained.
    Alternatively, plaintiff argues defendant cannot show, as the language of the policy exclusion requires, an assault and battery. As noted supra, plaintiff's complaint pervasively makes reference to an “assault and other criminal conduct.” Plaintiff's cause of action is premised upon an intentional, criminal shooting by an unidentified, armed third party who gained entry into the club. Although plaintiff's argument on appeal is inventive, the clear import of the complaint is that the gun was intentionally fired and recovery was sought on the theory of an assault culminating in the infliction of a gunshot wound to plaintiff, regardless of whether plaintiff was the intended target. In such cases, we hold the assault and battery exclusion precludes recovery on the insurance policy issued to the owners of the club by defendant.
    Judges ELMORE and GEER concur.
    Report per Rule 30(e).

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