Intentional Torts and Coverage For Workplace Torts in Ohio - DD 12/03

Defense Digest

Intentional Torts and Coverage For Workplace Torts in Ohio

In Altvater v. Ohio Casualty Insurance Company, et al., 10th Dist. No. __, 2003 Ohio 4758; 2003, Ohio APP. LEXIS 4296, the Franklin County Court of Appeals affirmed the judgment of the Franklin  County Court of Common Pleas.  In this case Viola Altvater filed a cause of action on behalf of  Robert K. Altvater, deceased.  From 1948 to 1980, Mr. Altvater was a plug mill operator in a brick factory owned by Claycraft Company.  During the course of his employment, Altvater was exposed to silica dust and died on March 17, 1983, as a result of chronic obstructive pulmonary disease.  An autopsy slide of his lungs showed 15 percent silica dust. 

Claycraft Company was insured by Ohio Casualty Insurance Company from January 1, 1977, to January 1, 1986, under various policies of insurance, including general liability and commercial umbrella policies. 

Viola Altvater filed a lawsuit against Claycraft alleging that her husband died as a direct and proximate result of an employment-related intentional tort. 

Sometime later, the intentional tort claim proceeded to trial.  A jury returned a verdict in favor of the decedent’s estate in the amount of $1,346,000.00 in compensatory damages and $500,000.00 in punitive damages.  The jury found that Claycraft had knowledge of the existence of a dangerous condition within its business operation, and had knowledge that if the decedent was subjected to such dangerous conditions, then harm to him would be a substantial certainty.  Claycraft never satisfied the judgment, and the decedent’s estate filed a supplemental complaint against Ohio Casualty seeking to satisfy the jury verdict. 

The trial court granted Ohio Casualty’s motion for summary judgment on the supplemental complaint stating that Ohio Casualty owed no duty to indemnify Claycraft on the judgment rendered against it.  An appeal from this decision followed.

The court of appeals affirmed the judgment of the trial court, employing well settled principles in insurance policy interpretation.

In this case, all of the special multi-peril policies and the commercial umbrella policies defined “occurrence” as “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.”  Further, several of the policies contained an exclusion indicating that the policies did not apply to bodily injury or any employee of the insured arising out of and in the course of employment by the insured, or to any obligation of the insured to indemnify another because of damages arising out of such injury.

The Franklin County Court of Appeals noted that in Altvater’s successful action against Claycraft, the jury found that Claycraft’s actions constituted an employment-related intentional tort.  In Ohio, employers are generally immune from those accidents that occur to employees in the course and scope of the employees' employment.  However, Ohio has carved an exception to this immunity where the employer does not directly intend to injure the employee but acts with the belief that injury is substantially certain to occur.  The question in the appeal is whether or not a substantial certainty employer intentional tort is the same type of conduct that is precluded by a provision exempting or excluding bodily injuries “expected or intended” from the standpoint of the insured. 

The question on appeal is whether or not the insurer must demonstrate the existence of an actual intent to injure, thus precluding coverage. 

The court of appeals analyzed recent Ohio case law, and determined that an intent to injure will be inferred as a matter of law in substantial certainty cases.  Thus, the court of appeals held that, where substantial certainty exists, an intent to harm will be inferred as a matter of law, and there is no coverage for a substantial certainty employer intentional tort where an insurance policy excludes coverage for bodily injury, expected or intended, from the standpoint of the insured.  Thus, where an employer is found liable for exposing an employee to harm which was either certain or substantially certain to occur, and the insuring policy contains language that precludes coverage for those acts intended or expected from the standpoint of the insured, then coverage may very well be denied, for the courts will infer that any injury that was substantially certain to occur involves an inference of an intent to injure. 

Thus, the Ohio courts are clearly indicating that injuries that were substantially certain to occur are intentional notwithstanding the knowledge of the party held responsible for the injuries. 

*Sam is the managing attorney of our Akron, OH office.  He can be reached at (330) 255-0039 or scasolari@mdwcg.com.