MOORE, Chief Judge
MEMORANDUM
This matter is before the Court on defendant Blackbeards Castles [Blackbeards] motion and plaintiff Classic Fire & Marine Insurance Companys [Classic] cross-motion for summary judgment whether defendant has coverage under a general liability insurance policy written by plaintiff Classic for a judgment it may receive in a suit filed against the hotel by its patron and codefendant Peter Edick.
This Court has general civil jurisdiction equivalent with that of a district court of the United States under Revised Organic Act of 1954 § 22(a), 48 U.S.C. § 1612(a). The Court has specific jurisdiction in this controversy because of diversity of citizenship between litigants contesting an amount in excess of the jurisdictional threshold. 28 U.S.C. § 1332.
I. RELEVANT FACTS
Defendant Blackbeards is a popular hotel in St. Thomas. Effective from October 1, 1994, to October 1, 1995, Classic through its predecessor in interest, Classic Syndicate, issued Commercial General Liability Policy No. DOL 204897 [the policy] purporting to insure Blackbeards premises.
On December 18, 1994, defendant Peter Edick [Edick] was a guest at Blackbeards. In his litigation against the hotel, Edick alleges he was robbed at gunpoint by two as yet unknown assailants who had secreted themselves on the grounds of Blackbeards either in the shrubbery or the structure near Edicks room.
It is alleged that at the onset of the attack Edick was immediately threatened with death and ordered to crawl into his room. Once inside, one of the assailants shoved a gun under his chin and the other placed his hand on Edicks shoulder forcing him to the floor. This second assailant then held him down at knife point and rifled his pockets. After this going over, the two bandits escorted Edick to a nearby automated teller machine and forced him to withdraw $500 which they also took from him.
Fortunately, Edick was not wounded or killed during the attack. However, in his complaint against his co-defendant here, he alleges injury in the nature of psychological trauma.
Following receipt of Edicks complaint, Blackbeards tendered same to its insurance agent claiming coverage under the policy. Classic ultimately began to defend the complaint under a reservation of rights and filed this action seeking declaratory judgment that its insurance policy does not cover Edicks claims. Blackbeards has cross-claimed seeking declaratory judgment that it is indeed entitled to coverage in the event it suffers an adverse judgment in favor of Edick.
II. DISCUSSION
The Court will first set down the legal standard for assessing summary judgment. It then examines and affirms Classics assertion coverage is excluded.
A. Standards for Summary Judgment
Summary judgment applies to actions for declaratory judgment and is appropriate where the pleadings . . . together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Summary judgment may be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that partys case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once the moving party properly supports its motion for summary judgment, the non-moving party must establish a genuine issue of material fact in order to preclude a grant of summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). [T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson, 477 U.S. at 247-48. In addition, a complete failure of proof concerning an essential element of the non-moving partys case necessarily renders all other facts immaterial. Celotex, 477 U.S. at 323.
B. The Assault and Battery Exclusion
Classic bases its claim to summary judgment on the ground that the claims in Edicks complaint are excluded by the following policy language:
ASSAULT AND BATTERY/HIRING SUPERVISION EXCLUSION
It is agreed this policy does not cover any claims arising out of Assault and Battery or out of any act or omission in connection with the prevention or suppression of such acts. Whether caused by or at the instigation or direction of the Insured, Insureds Employees, patrons or any other person. Further, claims accusations or charges of negligent hiring, placement, training or supervision arising from the foregoing are not covered.
(Plaintiffs Memorandum Exhibit 1.) Blackboards contends the exclusion does not apply because the Edick complaint states only a claim for assault, not assault and battery.
The Court can see no reason to torture the language of the policy as Blackboards invites it to do. The exclusion forestalls claims arising from an assault and battery which is to be determined from all the circumstances of the incident. Although Mr. Edicks complaint only states a claim for assault, the body of the complaint makes clear that he was also subjected to the harmful touching which converts a mere assault to assault and battery. Blackboards concedes in its memorandum that a gun was shoved under his chin and that one of his assailants leaned on Edick during the attack. (Blackboards Memorandum in Support of Motion for Summary Judgment at 13-14, n.3.) The Court therefore finds that Edicks complaint against Blackboards could not have arisen but for the assault and battery he claims to have suffered upon their premises. The conclusion that the exclusion applies is, therefore, ineluctable.
III. CONCLUSION
The Court having considered the matter, there are no material issues of fact in dispute and plaintiffs are entitled to judgment as a matter of law. An appropriate order shall issue.
ENTERED this 10th day of September, 1998.
ORDER
For the reasons set forth in the accompanying memorandum it is hereby
ORDERED that defendant Blackbeards Castles request for leave to file in opposition out-of-time be and the same is hereby GRANTED. And it is further
ORDERED that defendant Blackbeards Castles motion for summary judgment be and the same is hereby DENIED. And it is further
ORDERED that plaintiffs motion for summary judgment be and the same is hereby GRANTED. And it is further ORDERED that the file is deemed CLOSED and each side will bear its own costs in this action.
ENTERED this 10th day of September, 1998.
Edick v. Blackbeards Castle and Guesthouse, Inc., No. 1995-175. Defendant Blackbeards has also requested leave to file its opposition to Classics cross-motion for summary judgment out of time. As that motion is unopposed, it will be granted.
The complete Revised Organic Act of 1954 is found at 48 U.S.C. §§ 1541-1645 (1994), reprinted in V.I. Code Aw., Historical Documents, Organic Acts and U.S. Constitution at 73-177 (1995 & Supp. 1998) (preceding V.I. Code Ann. tit. 1).
Classic Syndicate merged into Classic Fire and Marine Ins. Co. on Dec. 29, 1995.
Because it has determined coverage is excluded the Court does not reach assertions by Classic that Edicks damages, if any, are not bodily or personal injury or an occurrence, as defined by the policy.