Wednesday, September 18, 2013
No Insurance Coverage in Burning of Dancer at Valley Club—C.A.
Panel Says Exclusion for ‘Battery’ Not Limited to ‘Body-to-Body’ Contact
By KENNETH OFGANG, Staff Writer
An exclusion in the liability insurance policy for a now-closed Tarzana bikini bar precludes coverage for the highly publicized February 2009 attack that left a dancer with burns over 40 percent of her body, the Court of Appeal for this district has ruled.
Div. Three Monday affirmed a Los Angeles Superior Court judge’s ruling that Roberta Busby, doused with gasoline tossed from a soda bottle and set ablaze by a woman she’d had an argument with earlier, was the victim of a “battery” as defined in the policy’s exclusion of coverage for assault and battery.
Rianne Theriault-Odom was convicted of torture and aggravated mayhem. Now 32, she is serving a life sentence at the California Institution for Women at Corona, according to prison records.
Babes & Beer
Theriault-Odom was a Tarzana resident who had once been rejected for a job at Babes & Beer. Around 1:30 a.m., Theriault-Odom convinced Busby to step outside, then set her on fire, according to witnesses, who said the assailant’s lighter ignited on the third attempt.
Theriault-Odom acknowledged fighting with Busby but claimed that someone else started the fire. A male who was with Theriault-Odom was not charged, as prosecutors concluded there was insufficient evidence to prove he was involved in the attack.
A Daily News article last year said Busby, a mother of two who went to work at the bar after losing her job as a bill collector, and has become an advocate for burn victims, has had more than 50 skin grafts.
She sued her assailant as well as the bar owner, who stipulated to a $10 million judgment and agreed to assign its rights under the insurance policy to Busby. The insurer, Mount Vernon Fire Insurance Company, rejected the claim and brought a declaratory judgment action seeking a determination that it had no obligations under the policy.
In seeking a determination of coverage, Busby’s attorneys argued that because there was no “body-to-body” contact between her and her assailant, the attack fell outside of the policy’s definition of battery as “physical contact with another without consent.” Judge Michelle Rosenblatt, however, rejected that interpretation and granted summary judgment to the insurer based on the plain language of the policy.
Justice Walter Croskey, writing for the Court of Appeal, agreed. The language “necessarily includes a striking or touching as occurred in this case,” he wrote.
The policy must be construed on the basis of “reasonableness and context,” he said.
Noting that coverage would have been excluded, under the plaintiff’s interpretation, had her assailant struck Busby with the soda bottle, Croskey wrote:
“How, then, could or should the result be any different if the glass container were filled, as in this case, with a flammable substance used to set Busby afire?...Neither [the bar owner], nor its assignee Busby, could have had reasonable expectations to the contrary.”
Attorneys on appeal were Kathleen Mary Kushi Carter and Christine R. Arnold of HollinsLaw for the insurer and Russell G. Petti and Glenn R. Kantor for Busby.
The case is Mount Vernon Fire Insurance Corporation v. Oxnard Hospitality Enterprise, Inc., 4848.
Copyright 2013, Metropolitan News Company