Is a resident on resident altercation covered, or does the assault and battery sublimit capture it?

Behavioral expressions of dementia, including physical aggression, are a clinically expected feature of the conditions memory care exists to serve. A facility that admits residents with documented behavioral history has knowingly accepted a foreseeable risk, which is what it is licensed and staffed to manage.

When one resident injures another, the claim against the facility is therefore about assessment, placement, care planning and supervision. In substance it is a professional liability claim. Plaintiff counsel pleads it that way.

Many assault and battery endorsements do not limit themselves to intentional torts. They apply to any claim arising out of assault or battery, and frequently add language extending to any act or omission in connection with the prevention or suppression of such acts, and often a phrase applying the sublimit regardless of whether the claim is pleaded as negligence.

That last phrase is the one that does the damage. It is specifically drafted to defeat the argument that a negligence theory escapes the sublimit. Where it appears, a resident on resident injury is a sublimited claim no matter how the complaint is framed.

So the number matters less than the trigger language. An operator comparing two programs at the same sublimit can be comparing very different coverage.

Assault and battery and sexual abuse and molestation are usually separate endorsements with separate sublimits, and a single incident can implicate both. A resident on resident incident with a sexual component can be captured by whichever endorsement is drafted more broadly, and in a bad case both apply to different aspects of the claim.

Read them together rather than separately, and specifically check whether the two sublimits share an aggregate with each other or with the general aggregate.

Two asks, in order. First, a carve-back for resident on resident incidents, so that claims arising from the behavioral expression of a diagnosed condition are treated as professional liability at the full limit rather than as assault at the sublimit. That is the correct characterization of the exposure and it is a defensible request.

Second, if a carve-back is not available, a materially higher assault and battery sublimit with its own aggregate, sized against the fact that this is a core rather than peripheral exposure for a memory care operator.

Underwriters respond to the same evidence here as on abuse: behavioral assessment protocols, staffing ratios on memory care units, de-escalation training records, and a documented process for reassessing residents whose behavior changes.

Ask this exactly: does our assault and battery endorsement apply to claims arising out of assault or battery regardless of how they are pleaded, and if so, what is the sublimit and does it have its own aggregate.

If the answer is that the endorsement applies regardless of pleading and the sublimit is a small fraction of the main limit, then for a memory care operator that is the most important open item in the program, ahead of premium.