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IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON
MAY 17, 2004 Session ST. PAUL REINSURANCE CO., LTD. v. ROBERT WILLIAMS and SHERROD JACKSON, Individually and d/b/a PURE PASSION; PURE PASSION, INC. and EUGENE PUGH
Direct Appeal from the Chancery Court for Shelby County No. CH-02-0038-I Walter L. Evans, Chancellor

No. W2003-00473-COA-R3-CV - Filed August 25, 2004

This case arises from events surrounding the shooting death of Decedent, Appellant's son. Appellee filed a motion for summary judgment claiming its policy of insurance did not apply to the circumstances of this case because Appellant's claim was specifically excluded from the insurance policy. The trial court granted Appellee's motion for summary judgment and, for the following reasons, we affirm.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY M. KIRBY , J., joined. Ron W. McAfee, Memphis, TN, for Appellant Gary H. Nichols, Jeffrey L. Lay, Dyersburg, TN, for Appellee OPINION Facts and Procedural History On August 19, 2000, Rodney Pugh ("Pugh" or "Decedent") was a patron at a nightclub in Shelby County, Tennessee, named Pure Passion. Pugh became involved in an altercation with other unknown patrons of Pure Passion. One of those individuals had a firearm and shot Pugh multiple times in the abdomen. Pugh died as a result of the gunshot wounds. Subsequently, on August 16, 2001, Eugene Pugh ("Appellant"), Decedent's father, filed a complaint, seeking compensatory and punitive damages, against Robert Williams and Sherrod

Jackson individually and d/b/a the Pure Passion Club. On January 7, 2002, St. Paul Reinsurance Company ("Appellee") filed a complaint for a declaratory judgment, seeking a decree that the commercial general liability policy issued to Pure Passion ("insurance policy") excluded the nature of Appellant's claim from coverage and that Appellee had no duty to defend or indemnify Pure Passion. The insurance policy between Appellee, as insurer, and Pure Passion, as insured, with an effective period of coverage from August 3, 2000, to August 3, 2001, provides, in pertinent part: Section I - Coverages Coverage A. Bodily Injury And Property Damage Liability 1. Insuring Agreement. a. We will pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies. We will have the right and duty to defend any suit seeking those damages. We may at our discretion investigate any "occurrence["] and settle any claim or suit that may result. ... c. Damages because of bodily injury include damages claimed by any person or organization for care, loss of services or death resulting at any time from the bodily injury. Under the insurance policy's list of exclusions, it states the following: Exclusion - Assault and Battery / Negligent Hiring Notwithstanding anything contained herein to the contrary, it is understood and agreed that this policy excludes claims arising out of; 1. Assault and Battery, whether caused by or at the instructions of, or at the direction of or negligence of the insured, his employees, patrons or any causes whatsoever and 2. Allegations of negligent act or omission by or on behalf of the Insured in connection with hiring, retention or control of employees, supervision or prevention or suppression of such assault and battery. Finally, the insurance policy excludes coverage for punitive or exemplary damages: Exclusion - Punitive Or Exemplary Damage -2-

The following exclusion is added to Coverages A, B, and C (Section I): This insurance does not apply to a claim of or indemnification for punitive or exemplary damages. If a suit shall have been brought against you for a claim within the coverage provided under the policy, seeking both compensatory and punitive or exemplary damages, then we will afford a defence for such action. We shall not have an obligation to pay for any costs, interest, or damages attributable to punitive or exemplary damages. Appellee filed a motion for summary judgment, an amended motion for summary judgment, a memorandum in support of such motion, and a statement of undisputed facts. After a hearing on September 6, 2002, the trial court found that the insurance policy does not provide coverage for the subject matter of Appellant's lawsuit. Therefore, the trial court granted Appellee's motion for summary judgment. After the trial court denied Appellant's motion to alter or amend the judgment, Appellant filed an appeal with this Court and presents the following issue for our review: whether the insurance policy provides coverage pursuant to the "concurrent causation doctrine" for the shooting death of Rodney Pugh. For the following reasons, we affirm the decision of the trial court. Standard of Review This Court has previously articulated the standard by which we must review this issue on appeal: We do not find a material factual dispute. Questions involving an insurance policy's coverage and an insurer's duty to defend require the interpretation of the insurance policy in light of claims asserted against the insured. Standard Fire Ins. Co. v. Chester-O'Donley & Assoc., Inc., 972 S.W.2d 1 (Tenn. App. 1998). The issues relating to the scope of coverage and an insurer's duty to defend present questions of law which can be resolved by summary judgment when the relevant facts are not in dispute. Id. at 5-6. Summary judgment may be granted only when there are no genuine material factual disputes with regard to the claim or the defense asserted in the motion, and when the moving party is entitle[d] to a judgment as a matter of law. Tenn. R. Civ. P. 56.03; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). Planet Rock, Inc. v. Regis Ins. Co., 6 S.W.3d 484, 490 (Tenn. Ct. App. 1999). Law and Analysis Appellant argues that Appellee should not have been granted summary judgment even though the insurance policy contains an assault and battery exclusion. Specifically, Appellant argues that a "concurrent cause," the negligence of Pure Passion's employees in maintaining a secure environment, contributed to the Decedent's death. -3-

The "concurrent causation doctrine" was first recognized by this Court in the unpublished decision Almany v. Nationwide Insurance Company, No. 85-341-II, 1987 Tenn. App. LEXIS 2460, at *23-25 (Tenn. Ct. App. January 29, 1987). Such doctrine provides that "coverage under a liability policy is equally available to an insured whenever an insured risk constitutes a concurrent proximate cause of the injury." Almany, 1987 Tenn. App. LEXIS, at *24. Concurrent causation was recognized and approved by the Tennessee Supreme Court in Allstate Insurance Company v. Watts, 811 S.W.2d 883, 887 (Tenn. 1991) (holding "there should be coverage in a situation . . . where a nonexcluded cause is a substantial factor in producing the damage or injury, even though an excluded cause may have contributed in some form to the ultimate result and, standing alone, would have properly invoked the exclusion contained in the policy."). In Watts, Dewey Crafton, the insured, was assisting Joseph Cole in replacing the brake shoes on Cole's truck in Crafton's garage. Watts, 811 S.W.2d at 884. Crafton and Cole had difficulty removing the lug nuts from one of the truck's wheels. Id. Bobby Watts, a friend of Crafton's, coincidentally stopped by Crafton's home and offered to use a welding torch he had in his vehicle to remove the lug nuts. Id. Before using the welding torch, Watts inquired whether there were any flammable materials present in the garage to which Crafton responded in the negative. Id. When Watts could not remove the lug nuts with the torch, Crafton asked Watts to cut the bolt off with the torch. Id. Watts did so and, as the bolt was being cut, sparks scattered over the garage floor and ignited a pan of flammable liquid under the truck. Id. at 884-85. Crafton picked up the pan, walked to the open garage door, but dropped the pan due to the heat and inadvertently kicked it. Id. at 885. As a result, flammable liquid splashed onto Watts, causing burns. Id. Crafton's homeowner insurance policy with Allstate Insurance Company provided that "[Allstate does] not cover bodily injury or property damage arising out of the ownership, maintenance, use, occupancy . . . loading or unloading of any motorized land vehicle or trailer." Id. at 884. Allstate argued that the insurance policy did not cover the injury to Watts because the circumstances surrounding Watts' injury involved the maintenance of Cole's truck and the language "arising out of" was sufficiently broad to mean any causal relationship, relying on the "chain of events" theory of application. Id. at 885, 887. The court recognized that the use of the welding torch to perform maintenance on Cole's truck was an excluded risk under the policy. Id. at 888. However, the court determined that other causes

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