An insurance company has been held bound to indemnify the employers of a door steward who caused the death of a person he was ejecting from a bar by using a dangerous neck hold.
Lord Uist in the Court of Session held that Fiona Grant, the widow of Craig Grant, was entitled to payment from International Insurance Co of Hanover Ltd over the actions of Jonas Marcius, then employed by Prospect Security Ltd, despite an argument for the insurers that an exclusion for “deliberate acts wilful neglect or default” applied.
The deceased was being escorted from a bar in Aberdeen after falling asleep at a table. He was unsteady on his feet. Once outside he made swiping motions towards the stewards, at which Marcius grabbed him round the neck from behind and pinned him to the ground while continuing to hold him for about three minutes. The deceased remained motionless after Marcius released his grip and was pronounced dead soon after. The cause of death was mechanical asphyxia. Marcius was charged with murder but after trial was convicted of assault and sentenced to a community payback order. There was evidence that the hold he used was dangerous and contrary to his training, but he told the police he believed he was acting in defence of his colleagues.
For the insurers it was argued that it was clear that Marcius had assaulted the deceased, and whether or not he intended to kill was irrelevant: he intentionally committed a blameworthy act, which on the authorities was what the exclusion should be construed as covering. There was no ambiguity such as to require a contra proferentem construction (restricting the scope of the clause against the insurers' interests).
Lord Uist said the question was one of pure construction of the policy. The basis of the action was that Marcius failed in his duty of reasonable care for the safety of the deceased and so caused his death. She did not aver, and would not seek to prove, that there was any wilful act, wilful neglect or default on Marcius's part causing the death of the deceased. “In my opinion,” he stated, “applying the contra proferentem rule..., the submission for the pursuer that the clause applies only when the outcome giving rise to liability, namely death, was the intended objective is correct.” Here the death was an unintended and unfortunate consequence of the assault.
He concluded: “Applying the contra proferentem rule to a policy of insurance, a wilful, deliberate or intentional act cannot, in my opinion, include a reckless one.” The insurers were obliged to indemnify Marcius's employers in respect of their liability to the pursuer, and the employers' right to indemnity had been transferred to and vested in the pursuer.