The United States District Court, M.D. Florida, Jacksonville Division noted that from the face of the complaints, the victims allege they were assaulted and shot on 845 North's premises and suffered damages as a result of the insured's negligence. The court decided that the weapons exclusion in the policy precludes coverage for claims that arise out of or result from the use of a lethal weapon. The claims at issue here necessarily involved, arose out of, and/or resulted from the use of a lethal weapon. Moreover, said the court, the victims plainly assert that they were assaulted and that someone shot them, which is a harmful or offensive touching constituting a battery under the policy definition.

 The court also found that the policy explicitly excludes claims arising from an assault and battery and based on a failure to prevent an assault, battery, or both, such as the ones the victims have asserted in the underlying actions. Therefore, the court concluded from the pleadings that the assault and battery and weapons exclusions apply and Seneca has no duty to defend or indemnify the insured.

 As an aside, the court noted that while neither victim specifically alleged that they were shot with a firearm, the weapons exclusion includes but is not limited to firearms. Instead, the weapons exclusion precludes coverage of bodily injury arising out of or resulting from the use of a lethal weapon, so even if the victims were shot with a weapon other than a firearm, such a weapon would constitute a lethal one falling within the weapons exclusion.

 The court also discussed the term “arising out of” and said that the term is broader in meaning than the term “caused by”, and means “originating from, growing out of, flowing from or having a connection with”.

 Editor's Note: The U.S. District Court noted that, in determining an insurer's duty to defend, a court looks solely to the allegations in the underlying complaint. The actual facts of the situation are not relevant, such that the insurer must defend even if facts alleged are actually untrue or legal theories unsound. In this instance, the allegations in the underlying complaint against the insured fell squarely within the stated exclusions and summary judgment for the insurer was appropriate.