The Assault and Battery Exclusion: Closing the Most Dangerous Gap in Restaurant Liability

Commercial General Liability (CGL) insurance serves as the foundation of a restaurant’s risk management strategy. It is designed to protect against third-party bodily injury and property damage. However, a standard CGL policy often contains a significant limitation known as the "Assault and Battery" (A&B) exclusion. This exclusion can leave restaurant owners and operators exposed to substantial legal and financial risks.

For establishments that serve alcohol or operate late into the evening, the risk of physical altercations is an inherent operational reality. Understanding the technical nuances of the A&B exclusion is essential for maintaining comprehensive protection.

Defining the Assault and Battery Exclusion

In the insurance industry, "assault" typically refers to the threat of bodily harm or an action that causes a person to fear they will be harmed. "Battery" refers to the actual physical contact that results in harm.

The A&B exclusion is a provision within a liability policy that states the insurer will not provide coverage for any injury or damage arising out of an assault or battery. This exclusion often applies regardless of who committed the act. It may involve:

• A physical fight between two patrons.

• An altercation between a patron and a staff member.

• The use of force by security personnel or bouncers.

• Intentional acts that result in unexpected injuries.

The Gap in Commercial General Liability

Standard CGL policies, such as the ISO CG 00 01 form, are built around the concept of an "occurrence." An occurrence is defined as an accident, including continuous or repeated exposure to substantially the same general harmful conditions.

Insurers often argue that an assault or a battery is an intentional act, not an accident. Therefore, it does not meet the definition of an occurrence. Furthermore, most CGL policies contain an "Expected or Intended Injury" exclusion. This clause removes coverage for bodily injury or property damage expected or intended from the standpoint of the insured.

While the restaurant owner may not have intended for a fight to break out, the insurer may use the A&B exclusion to deny the claim entirely. This leaves the business to handle legal defense and potential settlements independently.

Why Restaurants Are High-Risk Environments

Restaurants and bars are unique environments due to the combination of crowds, tight spaces, and the consumption of alcohol. These factors increase the probability of conflict. Even high-end establishments are not immune to these risks.

Owners of fine dining restaurants must recognize that a single incident involving a slip, a fall, or a physical altercation can trigger a liability suit. When alcohol is involved, the legal landscape becomes even more complex.

The Intersection of Liquor Liability and A&B

Liquor liability insurance is a separate coverage designed for businesses that sell or serve alcohol. It addresses injuries that occur because a patron was over-served. However, many liquor liability policies also contain an A&B exclusion.

A common misconception is that liquor liability automatically covers fights. If a patron becomes intoxicated and strikes another guest, the injured party may sue the restaurant for negligent service of alcohol. If both the CGL and the Liquor Liability policies have A&B exclusions, the restaurant has a massive gap in its defense.

To ensure full protection, it is necessary to verify that "Assault and Battery" is either not excluded or is added back via a specific endorsement.

Security Personnel and the Use of Force

Many restaurants employ security guards or bouncers to manage crowds and maintain order. The presence of security creates a specific set of risks. If a security member uses physical force to remove a disruptive patron, and that patron is injured, an A&B exclusion will likely prevent the insurance company from defending the restaurant.

In many jurisdictions, the law views the actions of the security team as the actions of the business itself. Without a specific A&B endorsement, the business is essentially self-insuring the actions of its security staff.

Technical Language: The "Silent" Exclusion

Not all A&B exclusions are clearly labeled. Some policies utilize "Absolute" exclusions, which are broad and leave no room for interpretation. Others may use "Limited" exclusions that might offer some protection for "reasonable force" used to protect persons or property.

It is critical to analyze the "Definitions" and "Exclusions" sections of the policy. If the term "Assault" or "Battery" appears in the list of exclusions, the coverage is compromised.

Strategies for Closing the Coverage Gap

Closing the gap requires a proactive approach to policy structure. Insurance Alliance LLC provides expertise in identifying these vulnerabilities and securing the necessary endorsements.

1. Affirmative A&B Endorsements

An endorsement is an amendment to the insurance policy. An "Affirmative Assault and Battery Endorsement" explicitly states that the exclusion is deleted or that coverage is provided for these specific acts up to a certain limit.

2. Standalone A&B Coverage

In some high-risk scenarios, a standalone policy may be required. This is often the case for establishments with high alcohol sales volumes or those that stay open past midnight.

3. Reviewing "Duty to Defend"

A critical component of insurance is the "duty to defend." Even if a lawsuit is groundless, the legal fees can be devastating. A policy with an A&B exclusion often relieves the insurer of the duty to defend any suit alleging assault or battery. Securing coverage ensures that legal counsel is provided from the outset.

Operational Risk Management

While insurance provides a financial safety net, operational risk management reduces the likelihood of an incident occurring. Implementing the following practices can improve the risk profile of a restaurant:

• Server Training: Programs like TIPS (Training for Intervention ProcedureS) or RAMP (Responsible Alcohol Management Program) help staff identify signs of intoxication and de-escalate potential conflicts.

• Surveillance Systems: High-definition cameras throughout the premises provide an objective record of events. This documentation is vital during an investigation.

• Incident Logs: Maintain a detailed log of every incident, no matter how minor. Record the date, time, individuals involved, and actions taken by staff.

• Security Protocols: If security is used, ensure they are trained in de-escalation techniques rather than just physical removal.

The Importance of Professional Guidance

Insurance policies are legal contracts with complex language. Relying on a standard policy without a professional review can lead to catastrophic business loss. Insurance Alliance LLC serves as a resource for business owners to navigate these technical requirements.

By focusing on specific industry risks, such as those faced by fine dining restaurants, we help ensure that your coverage aligns with your operational reality. We offer comprehensive solutions across various sectors, including auto insurance and landlord insurance, ensuring that all aspects of your business and personal assets are accounted for.

Summary of Actionable Steps

1. Request a Policy Audit: Review your current CGL and Liquor Liability policies specifically for the words "Assault" and "Battery."

2. Verify Endorsements: Confirm if your policy includes an affirmative endorsement for A&B.

3. Evaluate Security: If you employ security, check if their actions are covered under your current policy definitions.

4. Implement De-escalation Training: Make staff training a mandatory part of the onboarding process.

The Assault and Battery exclusion is one of the most dangerous gaps in a restaurant's insurance portfolio. Addressing this gap is not just a matter of compliance; it is a fundamental step in protecting the longevity of the business.

Insurance Alliance LLC is dedicated to providing clear, technical guidance to help you manage these risks effectively. For more information on business protection and risk management, visit our blog or explore our sitemap.

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