First Circuit holds that bouncer's unintentional injury to bystander comes within assault or battery exclusion

Zachary Eaton was minding his own business at a nightclub in Maine called Ushuaia. Another patron got into a skirmish with a bouncer. The bouncer kicked open a glass-and-aluminum door, which struck and injured Eaton.

Eaton sued Ushuaia, which submitted to judgment and assigned its rights against its insurer, Penn-America, to Eaton. Eaton then sued Penn-America to satisfy the judgment.

Penn-America denied coverage on the basis of an exclusion for "damages resulting from assault or battery or physical altercations."

In Eaton v. Penn-Am Ins. Co., __ F.3d __, 2010 WL 472287 (1st Cir.), the United States Court of Appeals determined the coverage issue under the law of Maine.

The court held, first, that while it is acceptable for appellate decisions to be pretentious, they should not "wax longiloquent." (Okay, to be fair, that was just dicta.)

It then held that because the door was dislodged in the course of the assault, Eaton's injuries resulted from the assault and the exclusion applies. It further held that the fact that the bouncer did not intend to injure Eaton was irrelevant to the exclusion, which does not have the same definition as assault and battery in a criminal context.