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An insurer does not have to indemnify a gas station-convenience store customer who was injured by a store employee under an exclusion in its coverage, a federal appeals court said Monday, in affirming a lower court.
In June 2019, Paul Semien became embroiled in a dispute with the store’s clerk over Mr. Semien’s entitlement to store credits based on awards he won from the store’s video poker machines, according to the ruling by the 5th U.S. Circuit Court of Appeals in New Orleans in Paul Semien v. The Burlington Insurance Co.
The clerk left his post behind a glass-enclosed counter and hit Mr. Semien on the head with a metal pole, causing Mr. Semien severe injuries, the ruling said.
Mr. Semien filed suit against the store owner, Houston-based T&T Global Enterprises Inc., and the clerk in state court.
At the time of the incident, T&T had a commercial general liability insurance policy issued by Burlington, North Carolina-based Burlington Insurance Co. that provided up to $100,000 in coverage for assault and battery, but excluded coverage when the assault and battery was committed by an insured, which was defined to include T&T employees “for acts within the scope of their employment.”
Citing this exclusion, Burlington denied it had a duty to defend T&T and the clerk. Mr. Semien subsequently entered into a settlement with T&T and the clerk. As part of the settlement agreement, they assigned Mr. Semien the right to pursue claims against the insurer.
Mr. Semien filed suit against Burlington in U.S. District Court in Houston, which ruled in the insurer’s favor.
It was affirmed by a three-judge appeals court panel, which agreed with the lower court the policy excluded coverage for Mr. Semien’s claims
A “reading of the underlying pleading negates plaintiff’s contention that (the clerk) was outside the scope of his employment at the time of the assault,” the decision said.
Attorneys in the case did not respond to requests for comment.