The judges of the Eighth Circuit recently affirmed the dismissal of two cases against an insurer after finding the concurrent causation rule did not prevent the application of a policy exclusion for assault and battery. The case is called Scaglione v. Acceptance Indem. Ins. Co., 75 F.4th 944 (8th Cir. 2023).

In the wee hours of June 16, 2019, two patrons of Voce Bar in downtown St. Louis got into a fight with firearms. A stray shot struck and injured a bystanding patron, Sominkcole Conner, who sued Voce's owner and operator, Steven Scaglione, for premises liability and negligence in Missouri state court. Conner claimed Scaglione knew patrons, especially early morning patrons, came to the bar armed, yet he did not have sufficient security measures in place to protect innocent bar patrons. Scaglione sought defense and indemnity under his CGL policy with Acceptance, who refused to provide either service. The case went to arbitration, which ended with a $2.5 million award to Conner. 

Conner filed suit against Scaglione and Acceptance for fulfillment of her award; Scaglione, in turn, sued Acceptance for both bad faith failure to defend and indemnify and breach of fiduciary duty. In the District Court for the Eastern District of Missouri, Acceptance sought dismissal of both claims because Scaglione's CGL policy contained an assault-and-battery exclusion. Conner argued the assault-and-battery exclusion couldn't apply because the exclusion in the policy did not specify it applied to injuries caused by a third party unrelated to the insured where the victim was a bystander. She also argued that Scaglione's alleged negligence was a separate and distinct cause of her injuries from the gunfire, so her award should be covered under the concurrent proximate cause rule, sometimes called the "concurrent causation doctrine."