Insurer won't have to defend bar in wrongful death suit
- SCCLR Newsletter
- Jan 9
- 3 min read
By: Ray Sugrim
A South Carolina District Court granted summary judgment in favor of an insurer, ruling that they were not obligated to defend or indemnify a bar involved in a wrongful death lawsuit. The case is Burlington Ins. Co. v. Lowery's Soc. Club, 2025 LX 186410 (D.S.C. 2025).
Background
The wrongful death lawsuit arose from an incident at Lowery’s Social Club on November 28, 2020. Cole Pettus and his father, William Clyde Pettus, Jr., were at the bar when an altercation occurred involving Michael Barnette. During the altercation, Barnette punched William Pettus, causing him to fall and hit his head, and ultimately resulted in his death. Barnette pled guilty to assault and battery but later claimed he acted in self-defense and did not intend to harm Pettus.
The Estate of William Pettus filed a lawsuit against Lowery’s Social Club and its owner, alleging negligence for serving alcohol to Barnette when he was already intoxicated. The Burlington Insurance Company (TBIC) insured Lowery at the time under a commercial general liability insurance policy. TBIC filed a declaratory judgment action, claiming it had no duty to defend or pay judgments because the policy contained an assault and battery exclusion. Pettus argued that the exclusion goes against South Carolina Code.
The policy & the exclusion
The TBIC policy included a commercial general liability coverage form and a liquor liability coverage form. The liquor liability coverage form states that the insurer will pay sums that the insured is legally obligated to pay as damages due to injury, if liability for the injury is due to the selling, serving, or furnishing of alcoholic beverages.
An endorsement to the policy included an “assault, battery, or other physical altercation” exclusion. The exclusion barred coverage for “bodily injury”, “injury”, or “property damage” expected from the standpoint of an insured, and arising out of any assault or battery committed or attempted by any person, among other things.
The endorsement states that the exclusion applies “to all acts or omissions, including any act or omission in responding to or failing to respond or render aid, medical or otherwise, to any victim of the "assault" or "battery" or physical confrontation or altercation and all theories of liability (direct or vicarious) asserted against any insured, including but not limited to all theories of negligence, gross negligence, recklessness or intentional tort and shall not be subject to any severability or separation of insureds provision in the policy.”
S.C. Code §61-2-145
S.C. Code Ann. §61-2-145 governs liquor liability insurance requirements for locations that are permitted to sell alcohol for on-premises consumption. Any such place is required to carry coverage of at least $1 million for every biennial period.
Pettus argued that the statute implicitly prohibits insurers from having an assault and battery exclusion in a liquor liability policy. They contended that allowing the exclusion undermined the statute’s purpose of protecting the public from intoxicated customers. They continued that having an assault and battery exclusion on liquor liability insurance makes the insurance virtually meaningless.
The court’s decision
The Court disagreed with Pettus’s claims. The court held that while South Carolina law requires bars to obtain insurance to hold a liquor license, the statute does not dictate the specific terms that insurance companies must offer. The Court found that the exclusion was not in violation of state law and stated that other courts in the district ruled in the same manner.
In response to the Pettus claim that the exclusion made the insurance contract virtually meaningless, the court pointed out that even with the exclusion, the liquor liability policy provided coverage for other significant risks such as motor vehicle accidents caused by intoxicated patrons.
Finally, Pettus claimed that the exclusion should not apply since Barnette claimed to be acting in self-defense and did not intend to cause injury. However, the court found the policy unambiguous and barred coverage for injuries “arising in whole or in part out of any assault or battery”. The court found that a battery clearly occurred and the exclusion did not require intent to cause harm, only that the injury arose from the battery. Based on their findings, the court ruled that the insurer, TBIC, has no duty to defend Lowery and is not obligated to pay for the damages.
Editor’s note: This case highlights the importance of knowing your insurance contract and what may be excluded. Exclusions are always enforceable if they are unambiguous and not in violation of state law.
