Assurance Company of America, Inc. filed Friday in Federal Court claiming it is not responsible for expenses related to the death of Josh Bishop.
Assurance provided Chubby Cheeks commercial general liability commercial umbrella insurance. Assurance alleges that the policy does not cover the store or employees of the actions relating to the death of Bishop.
On Oct. 1, 2014, the Estate of Josh Bishop filed a wrongful death lawsuit against Chubby Cheeks, LLC and three employees in Miller County. The complaint alleges staff of Chubby Cheeks Liquor held two alleged shoplifters at gunpoint, handcuffed, and beat them with a hammer or mallet.Bishop was sent to UAMS Little Rock and underwent surgery to set his jaw and treat his other injuries. Bishop was released but re-admitted on Feb. 20, 2014 for further medical care.
“Upon dismissal from UAMS on the second occasion in February 2014, Mr. Bishop was prescribed liquid hydrocodone by his physicians due to the excruciating pain he was experiencing,” The complaint states. “Tragically, on the evening of Feb. 22nd or the early morning hours of Feb. 23rd, Mr. Bishop died in Bentonville, Benton County, Arkansas.”
Assurance states that “the actions of Allen Rogers, Lane Rogers and Sammie Townes were outside the scope of their duties to Chubby Cheeks, and were not a part of the conduct of the business of Chubby Cheeks as a retail liquor store.
Assurance alleges they only agreed to provide coverage for acts of employees of Chubby Cheeks which were within the scope of their duties to Chubby Cheeks, and which were within the conduct of the business of the retail liquor store. Therefore, no coverage applies to the events of January 25, 2014.
Assurance also points to an exclusion for expected or intended injury which states, “bodily injury or property damage expected or intended from the standpoint of the insured. This exclusion does not apply to “bodily injury” resulting from the use of reasonable force to protect persons or property.”
Assurance alleges the following violations of the terms and conditions of the policy.
- That, assuming that any applicable coverage might have existed under either the CGL policy form or the umbrella form, such coverage has been voided by the material breach of conditions of said policy forms
- That no notice of this incident was given to Assurance, by any person, until more than three months after the incident.
- That, in the interim and on or about February 23, 2014, Mr. Bishop passed away.
- That, due to the failure to provide Assurance with timely notice of the incident, Assurance was denied the opportunity to conduct a claims investigation which would have included taking a statement from Mr. Bishop.
- That Assurance has been prejudiced by the delay in reporting this incident
- That both the CGL policy form and the umbrella form require that “you must see to it that we are notified as soon as practicable of an occurrence or an offense, which may result in a claim.” Assurance denies that this incident constituted an “occurrence”, but, nevertheless, any potential for coverage was barred by the prejudicial failure of any person to give timely notice of this claim to Assurance.
- That, because there is no coverage for the acts which form the basis for the underlying tort claim, Assurance has no duty to defend any person for any allegation in the tort case.