On Application for Rehearing

STUART, Justice.

The opinion of January 11, 2013, is withdrawn, and the following is substituted therefor.

Ryan Price-Williams sued Admiral Insurance Company and Gabriel Dean and Charles Baber in the Mobile Circuit Court pursuant to Alabama's direct-action statute, § 27-23-2, Ala.Code 1975.1 Both Dean and Baber were alleged by Price-Williams to be covered under a commercial general-liability insurance policy Admiral had issued the national Kappa Sigma fraternity to which Dean and Baber belonged. Price-Williams alleged that Admiral was obligated to pay a judgment that had been entered in favor of Price-Williams and against Dean and Baber in a previous action ("the underlying action"). Following a bench trial, the trial court entered a judgment in favor of Price-Williams and against Admiral, holding that the Admiral policy provided coverage to Dean and Baber for the negligent and/or wanton acts that formed the basis of the underlying action. We reverse and remand.

I.

On January 31, 2004, Price-Williams was attacked and beaten at a fraternity house maintained by the University of South Alabama chapter of Kappa Sigma in Mobile (the local chapter is hereinafter referred to as "Kappa Nu"; the national fraternity is referred to as "Kappa Sigma"). Price-Williams suffered significant, permanent injuries as a result of the assault and incurred medical expenses of approximately $27,145. On November 28, 2005, Price-Williams sued Kappa Sigma and Kappa Nu and Dean, Baber, and Michael Howard, the three individuals alleged to have committed the assault, in the Mobile Circuit Court.2 Price-Williams's complaint sought recovery based on the assault and asserted negligence and/or wantonness claims based on Dean's and Baber's failure as officers of Kappa Nu to implement the risk-management program Kappa Sigma required of local chapters, which program, Price-Williams alleged, would have either prevented the assault entirely or, at a minimum, limited its duration and intensity.3

Shortly after it received the complaint, Kappa Sigma notified its insurer Admiral of a possible occurrence under its commercial general-liability policy; however, because its policy with Admiral contained a self-insured retention clause, Kappa Sigma took initial responsibility for the defense of Price-Williams's claims.4 Kappa Sigma therefore retained its own counsel, which also represented Kappa Nu. However, that counsel did not represent either Dean or Baber, neither of whom made a claim upon Admiral for coverage based upon their status as officers of Kappa Nu. In fact, Dean, Baber, and Howard never retained counsel, never answered the complaint, and never appeared in the action, and a default judgment was accordingly entered against them. A summary judgment was also entered in favor of Kappa Sigma, and, by the time the jury trial began on November 17, 2008, Kappa Nu was the only remaining defendant.5

After closing arguments were made at the conclusion of the trial, Kappa Nu reached a settlement with Price-Williams. Upon notifying the trial court of the settlement agreement, Price-Williams moved the trial court to withdraw his jury demand and to enter a final judgment against Dean, Baber, and Howard based upon the evidence adduced at trial.6 The trial court granted the motion, dismissed the jury, and thereafter entered a 10-page order containing the following findings of fact and judgment:

Subsequently, there was a dispute between Price-Williams and Kappa Nu regarding the settlement agreement and, specifically, whether as part of the settlement Price-Williams had agreed to release only Kappa Sigma and Kappa Nu or, as Kappa Nu maintained, to release Kappa Sigma, Kappa Nu, and Dean and Baber in their capacities as agents of Kappa Nu. Motions were filed by both parties with the trial court, which eventually ruled in favor of Price-Williams. Kappa Nu appealed that judgment to this Court, which affirmed the decision of the trial court, stating:

Kappa Sigma Fraternity v. Price-Williams, 40 So.3d 683, 693 (Ala.2009).

On October 6, 2009, approximately two months before our decision in Kappa Sigma was released, Price-Williams filed the instant action pursuant to § 27-23-2, alleging that, by virtue of their status as officers of Kappa Nu, Dean and Baber were additional insureds under the commercial general-liability insurance policy Kappa Sigma held with Admiral on the date of the assault. Admiral filed a response denying that Dean and Baber were covered under Kappa Sigma's policy.7 On May 3, 2011, the trial court conducted a bench trial; however, Admiral did not attend the trial, having been under the mistaken belief that the case would be decided through the submission of briefs.8 Notwithstanding Admiral's absence, the trial court proceeded to hear testimony from Baber and to receive exhibits, depositions, and documentary evidence from the parties in attendance.

Admiral and Price-Williams thereafter submitted trial briefs in support of their positions, and, on March 9, 2012, the trial court entered an order stating its findings of fact and conclusions of law and entering a judgment in favor of Price-Williams. In that final judgment, the trial court recognized that an assault-and-battery exclusion in the Admiral policy excluded coverage for any bodily injury resulting from Dean's and Baber's assault on Price-Williams but held that the exclusion did not apply to bodily injury caused by Howard's assault or bodily injury attributable to Dean's and Baber's negligence and wantonness in failing to implement a proper risk-management program, which failure, the trial court concluded, "actually facilitated Howard's conduct of assaulting [Price-Williams]." No postjudgment motions were filed, and, on April 19, 2012, Admiral filed its notice of appeal to this Court.

II.

The trial court in this case considered both oral and written evidence; however, our resolution of the issues on appeal hinges solely on the application of unambiguous language in the Admiral commercial general-liability insurance policy to undisputed facts. Accordingly, the ore tenus rule is inapplicable here, and the trial court's judgment is afforded no presumption of correctness. Our review, therefore, is de novo. See also McDonald v. U.S. Die Casting & Dev. Co., 585 So.2d 853, 855 (Ala.1991) ("If the terms within a contract are plain and unambiguous, the construction of the contract and its legal effect become questions of law for the court....").

III.

Admiral argues that the trial court's judgment should be reversed because, it says, the gravamen of Price-Williams's claims is that he suffered bodily injury as a result of an assault and battery and Kappa Sigma's policy with Admiral contains the following exclusion: "This insurance does not apply to `bodily injury,' `property damage,' `personal injury,' or `advertising injury' arising out of any act of assault and/or battery by any insured or additional insured." Accordingly, Admiral argues, the trial court erred in finding that coverage existed because it is undisputed that Price-Williams's injuries arose out of an assault in which Dean and Baber participated.

In support of this argument, Admiral cites Gregory v. Western World Insurance Co., 481 So.2d 878 (Ala.1985), in which this Court affirmed a judgment declaring that a plaintiff's negligence and wantonness claims against a bar based on injuries he received after being assaulted by a patron at the bar were not covered by the bar's insurance policy because the policy specifically excluded any claim alleging "`bodily injury or property damage arising out of assault and battery ..., whether caused by or at the instigation or direction of the insured, his employees, patrons, or any other person.'" 481 So.2d at 878 (quoting insurance policy).

Price-Williams concedes that, based on the clear terms of the assault-and-battery exclusion in the policy, injuries attributable to Dean's and Baber's participation in the assault were not covered under the Admiral policy. However, he nevertheless argues that coverage exists for his claim because the Admiral policy excludes only coverage for bodily injury "arising out of any act of assault and/or battery by any insured or additional insured" and he was assaulted not only by Dean and Baber — who were additional insureds under the Admiral policy — but also by Howard, who was not an insured or additional insured under the Admiral policy (emphasis added). Price-Williams argues that this limiting language in the assault-and-battery exclusion differentiates the Admiral policy from the broader assault-and-battery exclusion in the insurance policy at issue in Gregory — which excluded coverage for any claim alleging bodily injury arising out of assault and battery "`whether caused by or at the instigation or direction of the insured, his employees, patrons, or any other person.'" 481 So.2d at 878 (quoting insurance policy (emphasis added)). Thus, Price-Williams argues, this case is distinguishable from Gregory.9

However, Price-Williams's argument that Howard's involvement in the assault avoids the application of the assault-and-battery exclusion in the Admiral policy fails to recognize that his action against Admiral was brought pursuant to § 27-23-2 to seek payment of a judgment previously entered against Admiral insureds Dean and Barber in the underlying action. In Haston v. Transamerica Insurance Services, 662 So.2d 1138, 1139-40 (Ala.1995) (reversed on other grounds by Travelers Indemnity Co. of Connecticut v. Miller, 86 So.3d 338 (Ala.2011)), this Court stated:

(Emphasis added.) Thus, in this § 27-23-2 action, Price-Williams effectively stands in the shoes of the insured tortfeasors Dean and Baber in making his claim, and he is entitled to recover from Admiral only to the extent of Dean's and Baber's coverage for the claims asserted against them. It is acknowledged by all parties that Dean and Baber did not have coverage for their act of assault because of the assault-and-battery exclusion in the Admiral commercial general-liability insurance policy, and that exclusion therefore prevents Price-Williams from recovering from Admiral as well.

The fact that Howard, a non-insured, also participated in the assault is ultimately of no effect. Price-Williams's attempt to distinguish Gregory on the basis of the more broad assault-and-battery exclusion in that case misses the mark because Price-Williams is not attempting to require Admiral to fulfill a judgment entered against its insured Kappa Nu for injuries he received in an assault committed solely by a non-insured such as Howard; rather, he is attempting to require Admiral to fulfill a judgment entered against its insureds Dean and Baber for injuries he received as the result of an assault in which they participated. As we stated in Gregory: "[I]nsurance companies are entitled to have their policy contracts enforced as written...." 481 So.2d at 881. The assault-and-battery exclusion in the Admiral policy excludes coverage for an act of assault committed by an insured such as Dean or Baber, and § 27-23-2 cannot be used to require Admiral to pay a judgment entered against an insured for injuries inflicted in a non-covered assault simply because a non-insured also participated in the assault.

Moreover, the assault-and-battery exclusion bars Price-Williams from recovering from Admiral on the basis of the negligence and wantonness claims he asserted against Dean and Baber based on their failure to implement a risk-management program for Kappa Nu even though that negligent or wanton conduct is not itself excluded from coverage. As the trial court stated in its final judgment, Dean's and Baber's negligent or wanton acts in failing to implement a risk-management program combined with the assault to result in "one indivisible injury" to Price-Williams. Stated another way, it is impossible to allocate some portion of Price-Williams's injuries and the award of damages based on those injuries to the failure to implement a risk-management program and some other portion to the assault. Compare Crews v. McLing, 38 So.3d 688, 694 (Ala.2009) (affirming the trial court's judgment that there was not a "single indivisible injury" where expert witnesses were able to distinguish between damage to a mobile home attributable to the manufacturer and other damage attributable to the installer).10 All of Price-Williams's injuries arose from and were the product of the assault — notwithstanding the fact that the negligent or wanton failure to implement a risk-management program may have been an additional proximate cause. See Springer v. Jefferson Cnty., 595 So.2d 1381, 1384 (Ala.1992) (recognizing that an injury may have several concurrent proximate causes).

The assault-and-battery exclusion in the Admiral policy states that there is no coverage for "`bodily injury' ... arising out of any act of assault and/or battery by any insured or additional insured." All of Price-Williams's injuries without question resulted from an act of assault in which additional insureds Dean and Baber participated. Therefore, regardless of the fact that there may have been a separate act that also contributed to Price-Williams's injuries, there is no coverage in this case. The clear terms of the assault-and-battery exclusion must be enforced. See Auto-Owners Ins. Co. v. American Cent. Ins. Co., 739 So.2d 1078, 1081 (Ala.1999) ("If a policy provision is unambiguous, then a court must enforce the policy as it is written and cannot defeat express provisions, including exclusions from coverage.").

IV.

Price-Williams sued Admiral pursuant to § 27-23-2 after obtaining a judgment against Dean and Baber, who he alleged were insured by Admiral under a policy Admiral had issued to Kappa Sigma, by virtue of their positions as officers of Kappa Nu. Following a bench trial, the trial court entered a judgment in favor of Price-Williams, obligating Admiral to fulfill the judgment entered against Dean and Baber in the underlying action. However, because the Admiral policy did not provide coverage to Dean and Baber for "any act of assault and/or battery" and because Price-Williams's injuries undisputedly arose from an assault in which Dean and Baber participated, the trial court erred in holding Admiral responsible for the judgment entered against Dean and Baber in the underlying action. The trial court's judgment is accordingly reversed and the cause remanded.

APPLICATION GRANTED; OPINION OF JANUARY 11, 2013, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

BOLIN, PARKER, MAIN, WISE, and BRYAN, JJ., concur.

MURDOCK, J., concurs specially.

MOORE, C.J., and SHAW, J., concur in the result.

MURDOCK, Justice (concurring specially).

I concur in the disposition by the main opinion of the issues addressed therein. I write separately to further explain my reasons for doing so and to comment on the context in which the issues addressed in the main opinion arise.

Preliminary Observations

Before explaining my agreement with the disposition by the main opinion of the issues addressed therein, I believe it important to note certain aspects of the context in which these issues are presented in this case. First, the formulation and implementation of a risk-management policy was something the national fraternity, Kappa Sigma, asked of the officers of local chapters in their capacity as agents of the national fraternity. Gabriel Dean and Charles Baber, in their capacities as president and vice president, respectively, of the local chapter, therefore, may have assumed a responsibility to the national fraternity to promulgate such a policy in order to aid the national fraternity in fulfilling the duties imposed by law upon it in relation to visitors to the fraternity house. We do not appear to be presented in this appeal with the question whether Dean and Baber, in their individual capacities, owed a personal duty to Ryan Price-Williams to promulgate and implement a risk-management policy. Obviously, they owed a personal duty to Price-Williams not to assault and batter him. A duty specifically to create and implement a risk-management policy for his benefit is a different issue, however. See generally Restatement (Third) of Agency: Duty to Principal; Duty to Third Party § 7.02 (2006) ("An agent's breach of a duty owed to the principal is not an independent basis for the agent's tort liability to a third party. An agent is subject to tort liability to a third party harmed by the agent's conduct only when the agent's conduct breaches a duty that the agent owes to the third party."); cf. Commercial Union Ins. Co. v. DeShazo 845 So.2d 766, 770 (Ala.2002) ("Furthermore, the `inspection and audit' clauses also indicate that any inspection was solely for the benefit of the defendants, and not, as described in the clauses, made `on behalf of or for the benefit of the named insured or others.'" (emphasis omitted)).

Second, the Court decides this case today on the basis of an "exclusionary clause" applicable to injuries resulting from an assault and battery. It may be noted as well that the "coverage" language in the policy applies in the first place only to "occurrences" or, as that term is defined, "accidents." "[A] CGL policy is intended `"to protect an insured from bearing financial responsibility for unexpected and accidental damage to people or property...."'" Town & Country Prop., L.L.C. v. Amerisure Ins. Co., 111 So.3d 699, 707 (Ala.2011) (quoting Essex Ins. Co. v. Holder, 372 Ark. 535, 539, 261 S.W.3d 456, 459 (2007), quoting in turn Nabholz Constr. Corp. v. St. Paul Fire & Marine Ins. Co., 354 F.Supp.2d 917, 923 (E.D.Ark. 2005)). From the standpoint of the insureds, Dean and Baber (in whose shoes Price-Williams must stand in pursuing his direct-action claim against their insurer to recover the damages he has been awarded against them personally), the "damage" to Price-Williams was anything but "unexpected and accidental." Dean and Baber intentionally, physically attacked and "battered" the victim, Price-Williams.

The result achieved in this case thus is in accord not only with the public policy in Alabama and elsewhere against indemnifying an insured for a loss resulting from his or her own intentional wrongdoing, but also with the fact that an "assault and battery" is an intentional act and therefore cannot properly be considered an "accident" within the meaning of liability policies:

Kimberly J. Winbush, Annotation, Validity, Construction and Effect of Assault and Battery Exclusion in Liability Insurance Policy at Issue, 44 A.L.R.5th 91 (1996).11

Issues Addressed in the Main Opinion

As to the issues addressed in the main opinion, the outcome in this case is governed by two facts. First, the plaintiff has a single, nonseverable claim. As the main opinion notes, Price-Williams's claim is for bodily injury that cannot be divided and allocated between Dean's and Baber's alleged negligence in not promulgating and implementing a risk-management policy and their subsequent act of intentionally assaulting and battering Price-Williams. Nor can it be divided between those blows struck by Michael Howard and those struck by Dean and Baber during the assault. Price-Williams's single, nonseverable claim is either covered — in its entirety — by the Admiral insurance policy, or it is not. Second, regardless of whatever other acts or omissions by Dean and Baber or by a third party (i.e., Howard) may have facilitated or contributed to Price-Williams's bodily injury, it is undeniable that this indivisible bodily injury did arise out of an assault and battery committed by Dean and Baber.

To be applied to these two facts is the following simple policy language: "This insurance does not apply to `bodily injury,'... [or] `personal injury' ... arising out of any act of assault and/or battery by any insured or additional insured." Courts in other states that have addressed the issue are essentially unanimous in understanding assault-and-battery exclusions to bar coverage when a loss arises from an assault and battery, regardless of whether there are other acts or "causes of action" that have contributed to that loss.12 Even more specifically, most of these cases stand for the proposition that liability-policy clauses that exclude losses arising from an assault and battery are effective to bar payments for any such loss, even when the only improper conduct of the insured is a purely negligent act or omission that simply made possible or facilitated the subsequent intentional assault or battery. A fortiori, this basic understanding applies in a case such as this in which it is the insured himself who commits the subsequent intentional assault and battery.

Admiral relies on such cases as Auto-Owners Insurance Co. v. American Central Insurance Co., 739 So.2d 1078 (Ala. 1999), Horace Mann Insurance Co. v. D.A.C., 710 So.2d 1274 (Ala.Civ.App.1998), and Gregory v. Western World Insurance Co., 481 So.2d 878 (Ala.1985). Price-Williams argues that these cases are distinguishable because, he says, they involve separate "claims" arising out of the same "act," whereas in this case it is possible to distinguish between Price-Williams's claim alleging an intentional assault and his claims alleging negligence because the claims are based on two separate and distinct acts. This argument misunderstands the rationale of Auto-Owners.

First, it appears that there were in fact two different acts by the insured in Auto-Owners. As the trial court in Auto-Owners found: "`While the claims in the underlying case involve both intentional and unintentional acts, the defendant has provided case law supporting the nonseverability of the claims.'" Id. at 1080 (emphasis added). The trial court did not say that the case involved alternative legal theories or causes of action in relation to the same act; it said that the complaint alleged "both intentional acts and unintentional acts." The claims against the insured in Auto-Owners involved allegations that he allowed other fraternity members to commit intentional acts and that he himself committed such acts. This Court acknowledged that separate acts were involved:

Auto-Owners, 739 So.2d at 1082 (emphasis added).13

That said, however, the underlying reason the claims in Auto-Owners were not severable is exactly the same as in the present case: there was only one set of indivisible injuries suffered by the victim of an assault. Those injuries cannot be severed and allocated to different causes, whether those "causes" are separate legal theories or "claims" relating to the same act or are actually separate acts that combined to cause the injuries. This simple fact was true in Auto-Owners, just as it is true in this case and in dozens of indistinguishable cases throughout the country.

Price-Williams also seeks to distinguish Gregory, invoking the fact that a third party, Howard, also landed some blows to Price-Williams during the assault. Price-Williams argues that the exclusion provision at issue applies only to injuries arising out of any act of assault and battery "by any insured or additional insured" and that Howard is not an "insured or additional insured."

This attempt to distinguish Gregory ignores basic principles of tort law regarding joint and several liability of multiple tortfeasors contributing to a single, indivisible injury. If the separate acts of two or more tortfeasors combine to cause an indivisible injury, then all actors are jointly and severally liable for that entire injury. See Breland v. Rich, 69 So.3d 803, 825 (Ala.2011) (observing that "`where separate causes act contemporaneously to produce a given result, the causes of injury are concurrent within the rule making separate wrongdoers equally liable for the resultant injury'" (quoting Davison v. Mobile Infirmary, 456 So.2d 14, 26 (Ala. 1984))); Franklin v. City of Athens, 938 So.2d 950, 953 (Ala.Civ.App.2005) (stating that "[t]he negligence of two or more tortfeasors may combine to result in a single, indivisible injury for which both tortfeasors are liable"); and Holcim (US), Inc. v. Ohio Cas. Ins. Co., 38 So.3d 722, 729 (Ala. 2009) (explaining that "[u]nder Alabama law governing joint and several liability, `[a] tort-feasor whose negligent act or acts proximately contribute in causing an injury may be held liable for the entire resulting loss'" (quoting Nelson Bros., Inc. v. Busby, 513 So.2d 1015, 1017 (Ala.1987) (emphasis omitted))).

In other words, it is the indivisible nature of an injury that is the focus of tort law in deciding that more than one actor or act is to be deemed responsible for a given loss. And it is this single, indivisible nature of the bodily injury in this case that is dispositive. Aside from whatever other combining cause may have been involved, the undeniable fact remains that the individual insureds assaulted and battered the victim. As the main opinion aptly notes, if portions of the resulting injury and related hospital bills could be attributed solely to the earlier negligent actions of Dean and Baber in not promulgating a risk-management policy or to the acts of Howard during the actual attack on Price-Williams (the latter being alleged by Price-Williams to have been made possible by the prior negligent actions of Dean and Baber), we would have a different case. We do not have that case.

In Board of Education of East Syracuse-Minoa Central School District v. Continental Insurance Co., 198 A.D.2d 816, 604 N.Y.S.2d 399 (1993), the court applied policy language limiting "coverage" to "accidents" as well as an exclusion for bodily injury occurring during the course of the injured party's employment. In that case, very much as in this one, the insured pinned its hopes for coverage upon certain wrongdoing on its part that, standing alone, might provide a basis for coverage. Those arguments were rejected with sound reasoning apparently embraced by this Court in Auto-Owners:

198 A.D.2d at 817, 604 N.Y.S.2d at 400.

Likewise in this case, the argument that Dean and Baber committed acts separate from the assault and battery that directly injured Price-Williams and that by those previous acts of negligence they "failed to stop or prevent" their own intentional assault and battery of the victim or the participation of a third party in that subsequent assault and battery must fail. In this regard, I find helpful the following explanation of Texas law, which I submit is no different than the law of Alabama and basically every other state:

Canutillo Indep. Sch. Dist. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 99 F.3d 695, 703-04 (5th Cir.1996) (emphasis added).

The same is true here. The "legal claims asserted are not independent ..., but [are] related to and dependent upon excluded conduct," i.e., the assault and battery. The only difference between this case and the Texas case quoted above (and most other cases addressing this issue) is that the exclusion is deemed to apply in the other cases to bar a claim against a negligent insured even though the actual assault and battery was not committed by that insured. Here, the actual assault and battery was committed by the same insureds who seek recovery.