Nov 5, 2020

Appellate Division Rules Complaint Filed After A Plaintiff Has Died a Nullity

By Brian R. Lehrer, Esq.

In a case involving an insurance coverage dispute, the Appellate Division recently upheld a policy’s assault or battery exclusion in a suit for damages after a bar patron was shot. Pickett v. Moore’s Lounge, et al., - N.J. Super. – (App. Div. 2020).


The Estate of Roger Pickett sued EMRO, Inc. for damages after Pickett was fatally shot in the tavern. The estate alleged EMRO negligently permitted the shooter to enter the tavern armed, remain there and then shoot Pickett.


EMRO sought coverage from its insurer, Northfield Insurance. Northfield denied coverage invoking the policy’s assault or battery exclusion which bars coverage for bodily injury arising out of any act of assault or battery committed by any person. The trial Court granted summary judgment to Northfield and the Appellate Division affirmed.


The Appellate Division noted that the assault or battery exclusion bars claims against the insured for bodily injury that arise out of an assault or battery, and the estate alleged that the co-defendant, James Corley, had intentionally shot Pickett. The Court noted that the exclusion plainly encompassed negligent acts or omissions that failed to prevent or suppress the assault or battery. The Appellate Division distinguished an earlier case, L.C.S., Inc. v. Lexington Insurance, 371 N.J. Super. 42 (App. Div. 2004), on the grounds that plaintiff’s claim included an allegation of a bar negligently hiring and training its bouncers. 


DISCLAIMER: This Alert is designed to keep you aware of recent developments in the law. It is not intended to be legal advice, which can only be given after the attorney understands the facts of a particular matter and the goals of the client.