Bar is entitled to defense from insurer where patron alleges excessive force by bouncer
Mario Kacho sued KSK Hospitality and James Gibbons alleging that Gibbons struck, tackled, or "negligently beat, batter[ed] and wound[ed]" Kacho, injuring his wrist. KSK tendered the defense of Katcho's claim to its insurer, St. Paul Surplus Lines, which denied coverage. St. Paul cited its contract language that rejected liability for intentional [non-"accidental"] acts, while KSK argued that it was entitled to a defense under the policy language that stated "We won't apply this exclusion to intentional bodily injury...that results from the use of reasonable force to protect people or property." Normally, to constitute an "intentional act" an insured must intend both the act and the reasonable consequences of the act, and there was little doubt that by this definition, Gibbons' behavior was "intentional."
Gibbons had claimed that he deliberately pushed Kacho to separate him from another altercation involving one of Kacho's friends. Gibbons claimed he never intended to hurt Kacho, but that his actions were necessary to protect another patron whom Kacho was kicking in the head. Given the factual dispute arising out of the purpose of Gibbons' actions, the Court held that under the policy language, the bar was entitled to rely upon St. Paul to defend Kacho's lawsuit. Although the Court did not anticipate this development in its decision, St. Paul won't be obligated to pay any verdict against the bar, since an award in favor of Kacho will necessarily mean the jury has repudiated Gibbons' explanation of his actions.