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Hanover must defend nightclub in shooting

Posted On: Mar. 30, 2022 1:41 PM CST


A federal appeals court Tuesday affirmed a lower court ruling that a Hanover Insurance Group unit must defend a nightclub in a shooting, stating the insurer’s appeal failed to address the basis of the lower court’s ruling.

After Shanika Everett was shot at the Hollywood Nights South nightclub in St. Petersburg, Florida, she sued the nightclub in state court, according to the ruling by the 11th U.S. Circuit Court of Appeals in Atlanta in AIX Specialty Co. v. Shaneka Everett, 1207 MLK Liquors, Inc. d.b.a. Hollywood Nights South.

Its insurer, Hanover unit AIX Specialty Insurance Co., agreed to provide Hollywood with a defense subject to a reservation of rights, but filed a judgment action in U.S. District Court in Tampa, seeking a declaration it had no duty to defend Hollywood under its commercial general liability insurance policy.

The CGL policy included a firearms exclusion for “the discharge of firearms” by those on the insured premises. The plaintiff argued the exclusion did not apply, because it referred to the discharge of “firearms,” while she alleged she was injured by “a single projectile,” the appeals court said.

“Because the exclusion used the plural form of firearm, the district court concluded that the exclusion barred coverage only when a person was injured in an incident that involved the discharge of multiple firearms,” the ruling said.

In its appeal brief, AIX focused exclusively on another issue, stating there was “a sufficient connection between Hollywood’s premises and Everett’s injury to satisfy the exclusion’s requirement that the injury be occasioned directly or indirectly or as an incident to a shooting,” the decision said.

“The problem here is that the district court’s ruling rested on a different ground, one that AIX does not challenge,” the ruling said.

“Because AIX abandoned any argument that the district court erred in interpreting the exclusion as requiring the discharge of multiple firearms, it follows that the district court’s judgment that AIX owed a duty to defend Hollywood must be affirmed,” a three-judge appeals court panel held.

A footnote to the decision states that nothing “forecloses AIX from arguing” to the district court the exclusion covers a single firearm’s discharge.

Attorneys in the case did not respond to a request for comment.