C5-99-1898

Assicurazioni Generali, S.P.A., et al.,

Respondents,

vs.

AMPA, Inc., d/b/a Y’All Come Back Saloon, et al.,

Appellants,

Daniel K. Brennenstuhl,

Defendant.

Filed April 18, 2000

Affirmed

Harten, Judge

Hennepin County District Court

File No. CT-99-5219

Robert V. Espeset, Barry L. Blomquist, Jr., Blomquist & Espeset, 255 Broadway Place East, 3433 Broadway Street, NE, Minneapolis, MN 55413 (for appellants)

Scott P. Drawe, Stich, Angell, Kreidler, Brownson & Ballou, P.A., The Crossings, Suite 120, 250 Second Avenue South, Minneapolis, MN 55401-2122 (for respondents)

Leslie L. Lienemann, Celeste E. Culberth, 8400 Lyndale Avenue South, Suite 7, Bloomington, MN 55420 (for defendant)

Considered and decided by Harten, Presiding Judge, Lansing, Judge, and Foley, Judge.^*

U N P U B L I S H E D O P I N I O N

HARTEN, Judge

Appellants, two bars, their owner corporations, and the sole shareholders of those corporations, were sued by a patron who alleged damages resulting from acts of the bars’ former manager. Appellants applied to respondents, their insurers, for defense and indemnification. Respondents brought this declaratory judgment action to determine their liability. The district court held that the assault and battery exclusions in respondents’ policies precluded coverage. Because we see no error of law in this holding, we affirm.

FACTS

The six appellants include two Minneapolis bars, the Y’All Come Back Saloon and The Brass Rail, the two corporations that own them, AMPA, Inc., and 422 Hennepin, Inc., and the sole shareholders of those corporations, James Anderson and John Moore. Respondents are the insurers with whom the bars had Commercial General Liability (CGL) policies during 1994, the time relevant to this action. Respondent Assicurazioni Generali, S.P.A., (A.G.) insured AMPA; Respondent T.H.E. Insurance Company (T.H.E.) insured 422 Hennepin.

The incidents giving rise to the underlying action resulted from a short, consensual, personal relationship between plaintiff Daniel Brennenstuhl and Timothy Romans, the bars’ manager. After Brennenstuhl considered the relationship to be over, he visited one of the bars when Romans was on duty, but refused to speak to Romans. Romans then grabbed Brennenstuhl by the coat and pushed him out of the bar. Following this incident, Romans repeatedly verbally harassed Brennenstuhl and damaged his property; these acts resulted in Romans being jailed. Appellants terminated his employment.

In January 1996, Brennenstuhl sued appellants, alleging negligent retention for retaining Romans after learning he was a threat to others; vicarious liability for Romans’ alleged battery of Brennenstuhl, vicarious liability for Romans’ alleged intentional infliction of emotional distress on Brennenstuhl, and negligent supervision of Romans. Appellants moved for summary judgment, which was denied on the claims of negligent supervision, vicarious liability for battery, and negligent retention, but granted on the claim of intentional infliction of emotional distress.^[1]

Appellants tendered their defense against Brennehstuhl’s claims to respondents, who defended while reserving their rights. Respondents also brought this declaratory judgment action to determine their obligations under the policies. Following a hearing, the district court determined that respondents have no duty to defend or indemnify appellants against Brennenstuhl’s claims because the policies’ assault and battery exclusions preclude coverage. This appeal, which is limited to Brennenstuhl’s negligent retention claim, followed.

D E C I S I O N

“Insurance coverage issues are questions of law for the court.” State Farm Ins. Cos. v. Seefeld, 481 N.W.2d 62, 64 (Minn. 1992) (citation omitted).

Both respondents’ policies provide that:

In consideration of the premium charged, it is agreed that NO coverage of any kind (including, but not limited to, cost of defense) is provided by this policy for Bodily Injury and/or Property Damage arising out of or caused in whole or in part by an assault and/or battery. Further, NO coverage is provided if the underlying operative facts constitute an assault and/or battery irrespective of whether the claim alleges negligent hiring, supervision and/or retention against the insured or any other negligent action.

Brennenstuhl’s claim of negligent retention arose out of Romans’ alleged battery.

“[W]e have held that negligent retention claims are limited to circumstances involving a threat of physical injury or actual physical injury.” Benson v. Northwest Airlines, Inc., 561 N.W.2d 530, 540 (Minn. App. 1997) (citing Bruchas v. Preventive Care, Inc., 553 N.W.2d 440,442-43 (Minn. App. 1996)), review denied (Minn. June 11, 1997).

Brennenstuhl never alleged the threat of physical injury, and his own deposition testimony demonstrates that he had no physical injury.

Q. Were you physically injured as a result of this altercation [with Romans at the bar]?

A. No.

* * * *

Q. [Y]ou did not sustain any physical injury [from Romans’ assault and battery]; is that correct?

A. No. No.

Q. My statement is correct?

A. Yes.

Q. Any other injuries that you sustained were emotional injuries; is that correct?

A. Basically, yes.^[2]

Brennenstuhl had no physical injury to serve as the basis for his negligent retention claim.

Appellants allege that Brennenstuhl suffered property damage, in that his car tires were repeatedly slashed. But negligent retention claims are not based on property damage. See, e.g., id.; see also Doe v. Park Center High School, 592 N.W.2d 131 (Minn. App. 1999) (negligent retention claim brought by student sexually assaulted by teacher); Yunker v. Honeywell, Inc., 496 N.W.2d 419, 424 (Minn. App. 1993) (reversing dismissal of negligent retention claim in a wrongful death action), review denied (Minn. Apr. 20, 1993).

Appellant relies on Meadowbrook, Inc. v. Tower Ins. Co., 559 N.W.2d 411 (Minn. 1997) to argue that the assault and battery exclusions do not preclude coverage for emotional injuries. Meadowbrook held that

plaintiffs [in the underlying action] included claims for emotional distress and bodily injury, and therefore the insurer cannot withhold its defense on the grounds that the claims for emotional distress did not include sufficient physical manifestations to fit within the policy’s bodily injury coverage.

Id. at 419. Brennenstuhl’s complaint in the underlying action, like the complaint in Meadowbrook, alleged physical and emotional injury. However, Brennenstuhl testified that there was no physical injury. “In addition to looking at the complaint, the insurer can look to facts outside the complaint to determine whether coverage exists.” Haarstad v. Graff, 517 N.W.2d 582, 584 (Minn. 1994) (citation omitted). Respondents were entitled to base their decision that there was no duty to cover a claim for bodily injury on the plaintiff’s sworn statement that there was no bodily injury.^[3]

If Brennenstuhl did not have physical injury, as he testified he did not, he cannot claim coverage under the policy for damages from negligent retention; if he did have physical injury, as he now alleges, coverage is precluded by the policies’ assault and battery exclusions. There was no error of law in the district court’s conclusion that respondents have no obligation to defend.

Affirmed.

^* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

^[1] Although appellants moved successfully for dismissal of this claim in the underlying action, they allege on appeal that “[their] liability for Romans’ intentional infliction of emotional distress is based on three separate causes of action” and that “the tort of intentional infliction of emotional distress, with its physical manifestations of injury requirement, certainly is the type of conduct for which an employer is liable under a negligent retention claim.” Appellants do not explain their change in position on this claim.

^[2] This testimony is consistent with the district court’s conclusion in the underlying action: “Brennenstuhl has failed to provide any objective medical evidence demonstrating physical damages arising from Romans’ conduct. Therefore, Count III of his complaint [Intentional Infliction of Emotional Distress] fails as a matter of law.”

^[3] Appellants also argue that the policy’s “Separation of Insureds” clause, providing that coverage applies separately to each named insured against whom a claim is made, overrides the assault and battery exclusion. They interpret the clause to mean that there is coverage for an employer’s negligence even if the employee’s conduct resulting from that alleged negligence may be covered by an exclusion. For this argument, appellants rely only on an unpublished decision of this court, which has no precedential value and which we may not consider. See Minn. Stat. § 480A.08, subd. 3 (1998). We note, however, that appellants’ interpretation would render exclusions meaningless: the insurer would have no reason to exclude coverage for employees but extend it to employers.