Wilshire Insurance v. Poinciana Grocer – Premises Liability for Third-Party Assault

Property owners are required to keep the site reasonably free of foreseeable harm to guests and patrons under Florida law. Generally speaking, property owners aren’t required to insure against harm caused by third parties except in certain circumstances.

Under Florida premises liability law, a property owner can be liable for third-party attacks when:
–There is a special relationship for which owner assumes a duty to protect.
–There is an element of foreseeability to the alleged crime (i.e., there have been similar crimes committed on site or nearby in the past).
–Precautions taken to protect or warn the guest of danger were inadequate.

There have been numerous examples of Floridians who were injured as a result of a third-party attack who successfully sue the site owner or manager for damages based on this aspect of premises liability law. However, these cases are often complex in nature and require the help of an experienced litigator. While a criminal prosecution may result in a judgment for restitution, in addition to other criminal sanctions, that’s not standard, nor is it the primary purpose of the criminal justice system. That’s why third-party lawsuits are initiated.

Our Cape Coral injury attorneys know usually these cases are brought on the grounds of negligent security. Still, as the recent case of Wilshire Insurance Co. v. Poinciana Grocer Inc. illustrates, insurance companies for those third parties are likely to dispute payment for such claims. This doesn’t mean plaintiff can’t still pursue litigation against the third party, but defendant won’t have the backing of its insurer.

In Wilshire, which was heard by Florida’s Fifth District Court of Appeal, the claim stemmed from an attack on the property of a convenience store.

According to court records, a man was legally on the property conducting trash removal as part of his employment. While he was there, he purchased a large amount of alcohol, and as he was leaving, was attacked and stabbed by another man on site.

He sued the store for failure to maintain the property in a safe condition, failure to warn and failure to prevent violence with adequate security or safety measures.

The store sought indemnification from its insurer. However, the insurance company sought summary judgment on the issue of indemnification, arguing the policy offered a clear exclusion for any claims arising out of assault or battery. The trial court denied summary judgment, but that ruling was reversed on appeal. The appellate court found language within the policy clear on this point, as it stated “any claims arising out of assault and/or battery are not covered.”

Again, this does not mean plaintiff will be unable to pursue his claim or that the store won’t have to pay it. It simply means the insurer will not have to provide a defense or tender damages for the claim.

It’s also worth noting that because plaintiff in the underlying action was reportedly working at the time of the incident, he may also be entitled to workers’ compensation coverage for the claim. His employer may dispute coverage if it argues the purchase of alcohol, which reportedly was the motive for the crime, did not occur within the course and scope of employment. However, that point would be one for the administrative law judge to weigh.

Call Associates and Bruce L. Scheiner, Attorneys for the Injured, at 1-800-646-1210.

Additional Resources:
Wilshire Insurance Co. v. Poinciana Grocer Inc., Nov. 7, 2014, Florida’s Fifth District Court of Appeal
More Blog Entries:
Pedestrian Injury Gives Rise to Premises Liability Lawsuit, Nov. 4, 2014, Cape Coral Premises Liability Lawyer Blog

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