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Essex Insurance Co. v. Night & Day Management

February 22, 2008


The opinion of the court was delivered by: John D. Bates United States District Judge


This insurance coverage dispute involves the same underlying incident that forms the factual basis of Mazloum v. District of Columbia, 522 F. Supp. 2d 24 (D.D.C. 2007). Plaintiff Essex Insurance Co. brings suit seeking a declaratory judgment that it is not responsible for covering any of defendants'*fn1 putative liability arising from the Mazolum action pursuant to the insurance policy between the two parties. Essex has moved for summary judgment in its favor. Defendants, for their part, have cross-moved for summary judgment and requested that this Court order Essex to defend the FUR nightclub in the Mazloum action.*fn2 Those motions are now fully briefed and ripe for resolution. Upon careful consideration, and for the reasons set forth below, the Court will grant plaintiff's motion and deny defendants' motion.


The circumstances of the underlying incident in this case are set out in detail in Mazloum, 522 F. Supp. 2d at 30-32, and will not be repeated at length here. For present purposes, it suffices to say that Emile Mazloum, a person of "Arabian ethnicity," alleges that he was the victim of a beating at defendants' nightclub on the evening of March 11-12, 2005.*fn3 Pl.'s Stmt. of Facts ¶¶ 1-10. As Mazloum would have it, after dancing on the stage at the club, he attempted to "descend[] a stairway from the stage" when -- upon no provocation on his part -- he was grabbed and assaulted by Michael Persons, a bouncer employed by Night & Day. Id. ¶¶ 4-10. The resulting skirmish drew the attention of several off-duty Metropolitan Police Department officers who were patrons at the FUR nightclub on that evening. Those officers intervened on Persons's behalf, allegedly assaulting Mazloum, employing excessive force to remove him from the nightclub and launching racial epithets at him in the process. Id. ¶¶ 7-11.

As a result of the beating supposedly administered by Persons and the off-duty officers, Mazloum "suffered a broken nose, bloody left eye, scrapes on his face and ears, swelling on the left side of his neck where he was grabbed, and an assortment of cuts, bruises and bumps on his head," all of which required medical attention at Inova Alexandria Hospital. Id. ¶ 12. The next day, after Mazloum filed an administrative report with the MPD, defendants Rehman and Fiorito allegedly "had a conversation with one of the off-duty police officers in which they discussed destroying the security camera films that allegedly would have shown the beating of Mazloum." Id. ¶ 13. Along those same lines, Fiorito met with Mazloum's friend, Imad Alkadi, that evening and warned him that Mazloum would "get burned" if he continued to prosecute his police report and that the videotapes that might have recorded the incident were "gone." Id. ¶ 14.

Mazloum initiated his civil action on January 4, 2006. In his first amended complaint, he asserted a claim of assault and battery against Persons and Night & Day under the principle of respondeat superior. He also added a discrimination claim premised upon the D.C. Human Rights Act ("DCHRA") against Night & Day, claiming that he was singled out for abusive treatment on account of his ethnicity. Moreover, Mazloum asserted a DCHRA retaliation claim against Night & Day for threatening Mazloum's friend and for purportedly destroying the videotape evidence in response to Mazloum filing his police report. Finally, Mazloum asserted a claim of reckless/negligent spoliation of evidence against defendants Night & Day, Rehman and Fiorito in connection with the alleged destruction of the videotape. Mazloum requested compensatory and punitive damages for his injuries.

Essex issued a "Commercial General Liability Policy" (hereinafter "Policy") to Night & Day covering the period of August 26, 2004 through August 26, 2005, which encompasses the date of the Mazloum incident. Id. ¶ 22. There are several provisions of that contract relevant to the inquiry here. To begin with, the Policy provides that Essex will "pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies." Pl.'s Mot. Eggert Decl. Ex. 2 at 17 (emphasis added).

A variety of general exclusions within the Policy itself and specified "endorsements" clarify the scope to which the Policy "applies." The first significant exclusion concerns actions that cause "'[b]odily injury' or 'property damage[s]'" that are "expected or intended from the standpoint of the insured." Id. (emphasis added). More specifically, the "Assault and/or Battery Exclusion" makes plain that:

The coverage under this policy does not apply to any claim, suit, cost or expense arising out of assault and/or battery, or out of any act or omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or direction of any Insured, Insured's employees, patrons or any other person.

Id. at 37. Similarly, the "Combination General Endorsement" excludes from coverage punitive damages as well as any liability arising from discrimination claims. Id. at 33 § 6 (punitive damages), § 7 (discrimination claims). Finally, the Policy specifically excludes from coverage damages to property "own[ed], rent[ed], or occup[ied]" by the insured or property "in the case, custody or control of the insured." Id. at 20.

Against that backdrop, Essex moved for summary judgment on the grounds that all of Mazloum's claims against defendants fall outside of the Policy's coverage because they amount to actions or damages that are specifically exempted by an applicable exclusion or endorsement. In fact, as plaintiff correctly points out, defendants do not dispute the bulk of plaintiff's arguments. Instead, defendants direct most of their effort towards establishing that the spoliation claim is covered by the Policy. And based upon that premise, defendants argue that "[i]t is black letter law that if a complaint states a claim within the policy's coverage, the insurer is obligated to accept defense of the entire lawsuit even though the other claims in the complaint are outside of the policy's coverage." Defs.' Reply at 1. Thus, defendants effectively argue that Mazloum's spoliation claim is the hook that compels plaintiff to defend the entire lawsuit.

Before the Court turns to analyzing the parties' arguments, it is worth noting that there have been several significant developments in Mazloum since the initiation of the instant case. On June 27, 2006, this Court dismissed Mazloum's conspiracy claims, which were centered upon 42 U.S.C. § 1985 and the District of Columbia's common law, against all defendants. Mazloum v. District of Columbia, 442 F. Supp. 2d 1, 11-15 (D.D.C. 2006). More importantly for present purposes, this Court dismissed the DCHRA and spoliation claims pending against Night & Day, Fiorito, Rehman, and Persons on November 6, 2007. Mazloum, 522 F. Supp. 2d at 57. Thus, the sole remaining claim against the Night & Day defendants in the underlying Mazloum action is the assault and battery claim against Persons (and Night & Day, vicariously). That matter is currently scheduled for trial beginning on April 23, 2008.


Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by identifying those portions of "the pleadings, the discovery and disclosure materials on file, and ...

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