Being attacked by one or several restaurant employees is unexpected and somewhat disturbing. It happened so quickly that I could not react in time to avoid being victimized.

My wife arranged a "surprise" birthday dinner/party to celebrate my fortieth year. As dinner wound down, several restaurant employees came around the corner with sombreros aiming to put one on my head and sing me their version of "Happy Birthday." I had been through all this before so I knew what to expect - at least I thought I did.

There must have been 12 of them (well, actually, only two); one put the hat on my head and the second HIT me in the face with a whipped cream pie (it's true, my wife has the pictures on her FaceBook site). I was attacked in broad daylight in front of several witnesses, none of whom sprang to my aid (mostly they just laughed at me).

As the initial shock dissipated and I wiped off all the whipped cream I could reach; I began to think about the insurance implications of what just happened (yes, even in a time of shock I think insurance).

Legal Definitions Related to the Attack

Before I had my face fully whipped cream-free, I looked at the waitress and jokingly said, "You do realize that was assault and/or battery." She did not respond, but these terms have distinct legal meanings of which the restaurant's management now needs to be aware:
• Assault is not actual bodily contact, only the threat of bodily injury by force. Such threat is intentional and unlawfully directed towards another person such that the other party has a reasonable fear that injury is likely to occur. The apparent ability to carry out such a threat must also exist. A person pointing a gun at someone and telling them, "I'm going to kill you," would amply qualify as assault (in this case it's with a deadly weapon). Battery is actual physical touching and does not equate to assault.

• Battery (according to www.expertlaw.com) is actual physical contact with another individual against that person's will. Such contact does not have to result in physical injury to be considered battery. Such contact is not limited to physical touching or beating but can also refer to the physical restraint of a person. Spitting on a person, although not likely to cause injury, can qualify as battery. Battery can exist on its own without assault; an example would be someone just grabbing another person and beating them without provocation or warning.

Based on the legal definition, I was a victim of battery. However, the amount of damages which I may be able to recover is minimal since I was not hurt (other than a little bit of my ego). But what if the person has an allergy or was hit harder than expected resulting in a broken nose or gouged eye - would the restaurant's general liability policy respond; and how?

How the CGL Responds

Questions regularly arise as to whether the commercial general liability (CGL) policy responds to claims of assault and battery. The unendorsed CGL contains no specific exclusion for such actions, but coverage may depend on who perpetrates the assault or battery.

The CGL promises to pay all sums the insured is legally obligated to pay as a result of "bodily injury" or "property damage" suffered by a third party. Legal obligation can arise out of contract or tort. A tort relates to the insured's negligence in that if the insured is somehow negligent and a third party is injured as a result of that negligence, the CGL pays.

Relating this to assault and battery, if a customer is a victim of assault and/or battery and the insured is somehow held liable for the actions (did not keep the premises safe, allowed an argument to escalate, did not protect the customer, etc), the CGL responds and pays the claim. If, however, the insured is found not liable for the injury, then the policy will not pay.

But the attack on me was different. I was technically and factually a victim of battery and the restaurant was undoubtedly liable - because they did it. The last phrase seems to preclude coverage for the incident, leaving the restaurant on its own for any injuries that might have resulted; or does it?

Certainly the expected and intended injury exclusion (2.a.) would act to exclude coverage for this incident. However, when each word is assigned its everyday meaning and the wording viewed in its entirety, it does NOT necessarily exclude coverage for the restaurant's attack on me. The exclusion reads:

Expected Or Intended Injury
"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.

So, yes, the action was intended, but any injury that might have occurred is not intended, or even expected. Would the restaurant or anyone else reasonably expect someone to be injured by a putting of a pie in their face? Further, do they intend to hurt anyone with a whipped cream pie? Not likely on either.

For the exclusion to apply, the injury has to be expected or intended. Neither seems to apply in this practical joke, so CGL protection is still intact and available to pay.

What About "Mental Anguish?"

Although there was no apparent intent to do physical harm, such attack could cause an intense psychological reaction in some people. It may bring back memories of some awful event or create uneasiness in a person's belief in their ability to protect themselves.

I told my wife I was having dreams of being attached by a can of whipped cream and was unable to close my eyes and sleep because of the fear. This lack of sleep may lead to sleep deprivation, reduced mental capacity and job performance and ultimately the loss of my job. And my daughter, who saw the attack, is suffering from post-traumatic stress disorder even though she was not in the zone of danger.

Now, while I'm joking about my dreams and my daughter's stress (she was among those laughing), some people do suffer or claim to suffer such mental anguish "injuries." Defending these claims and paying the loss if the jury finds in favor of the plaintiff could be quite expensive; and there is NO coverage in the unendorsed CGL for claims of injury from "mental anguish."

"Bodily injury" is defined as "bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time." Nowhere is coverage for "mental anguish" provided under the "Bodily Injury and Property Damage" coverage section (Coverage A).

Neither does the definition of "Personal Injury" contemplate "mental anguish" losses. Coverage B, "Personal and Advertising Injury," also fails to provide any protection to the insured.

Insurers that either: 1) do not subscribe to ISO wording (in whole or in part); or 2) have proprietary endorsements may allow "bodily injury" to be redefined by endorsement to include "mental anguish." But many of those endorsements only extend coverage to include "mental anguish" CASUED by "bodily injury;" not simply "mental anguish" as its own cause of injury.

Protection from charges of "mental anguish" may be excluded under most CGL forms. Most likely any judgment or settlement arising out of such charges may have to be paid by the insured.

If This Were Your Insured

Had I been hurt by the attack, the liability policy would likely have responded to protect the restaurant. However, if I was mentally traumatized by this action, there is likely NO coverage for the restaurant's actions in the unendorsed commercial general liability policy. Beyond the insurance implications of the restaurant's joke, such actions are simply inappropriate and unacceptable from a risk management perspective.

It's unlikely that most agents have ever asked the question, "How do you celebrate a customer's birthday?" (I certainly never thought of asking); after this experience, I think it will be added to the checklist. The answer may lead to a good opportunity to provide risk management advice.