Preferred Mut. Ins. Co. v. Thompson

• Citation: 23 Ohio St.3d 78,491 N.E.2d 688,23 OBR 208
• Decision Date: 11 April 1986
• Docket Number: No. 85-122,85-122
• Parties: , 23 O.B.R. 208 PREFERRED MUTUAL INSURANCE COMPANY, Appellant, v. THOMPSON et al., Appellees.
• Court: United States State Supreme Court of Ohio

Page 78

23 Ohio St.3d 78

491 N.E.2d 688, 23 O.B.R. 208

PREFERRED MUTUAL INSURANCE COMPANY, Appellant, v. THOMPSON et al., Appellees.

No. 85-122.

Supreme Court of Ohio.

April 11, 1986.

Syllabus by the Court

When an insured admits that he intentionally injured a third party and the surrounding circumstances indicate that he acted in self-defense in causing the injury, the insured's insurance company may not refuse to defend the insured from the third party's intentional tort claim on the grounds that the third party's injuries fall within an exclusion from coverage for "bodily injury * * * which is either expected or intended from the standpoint of the [i]nsured."

On February 22, 1983, Victor E. Thompson brought suit against Albert F. Sabo, alleging that Sabo, on May 6, 1982, had negligently or intentionally caused bodily injury to Thompson. Sabo contacted his insurer, Preferred Mutual Insurance Company ("Preferred"), and requested that it provide him with a defense to Thompson's claims and indemnification, under the terms of his homeowners insurance policy, for any verdict rendered against him as a result of Thompson's claims. Preferred denied Sabo's request on the basis of two exclusions in the homeowners policy that precluded coverage for (1) "bodily injury * * * which is either expected or intended from the standpoint of the [i]nsured" and (2) "bodily injury * * * arising out of business pursuits of any [i]nsured except activities therein which are ordinarily incident to non-business pursuits." Preferred then brought an action in the Court of Common Pleas of Richland County seeking a judgment declaring that Preferred had no duty either to defend Sabo against Thompson's claims or to provide Sabo with liability coverage for any verdict rendered on said claims.

The matter was submitted to the trial court on the briefs of the parties ¹ and on the undisputed testimony of Albert Sabo taken at deposition. Based upon the evidence before it, the trial court found that on May 6, 1982, Albert Sabo was the owner and landlord of the mobile home park in which he was residing. The court found further that Sabo was awakened on May 6, 1982 by Victor Thompson, who was throwing rocks at Sabo's house trailer. (Thompson apparently was angered because Sabo had stated his intent to evict Thompson's friend, Sandra Riley, from the mobile home park.) Sabo, being determined to quiet the disturbance, picked up a gun and went outside to confront Thompson. An altercation ensued, and Thompson allegedly pulled Sabo off the steps of his trailer, breaking Sabo's leg. Sabo then fired one warning shot into the air; and, when Thompson continued to move toward him, he fired a second shot that struck and injured Thompson.

The trial court concluded that Sabo had intentionally shot Thompson, "although possibly in self-defense." The court then stated that although "shooting in self-defense is an intentional act, it is not an intentional tort so as to deny coverage under the insurance policy." The court also concluded that while the dispute between Sabo and Thompson "arose out of a business pursuit," "[t]he business pursuit exclusion [in Sabo's homeowners policy] has no applicability under the circumstances because Sabo's act in defending himself constituted conduct ordinarily incident to a nonbusiness pursuit." In its judgment entry, the trial court held that Preferred "shall provide a defense for Albert Sabo in his dispute with Victor Thompson and shall pay any judgment rendered by a jury against Mr. Sabo."

The court of appeals affirmed the judgment of the trial court in its entirety.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Baran & Baran Co., L.P.A., and John Tarkowsky, Mansfield, for appellant.

Inscore, Rinehardt, Whitney, Enderle & DeWeese and John R. Enderle, Mansfield, for appellee Albert E. Sabo.

SWEENEY, Justice.

An insurance company has a duty to defend an action against its insured when the allegations of the complaint against the insured bring the action within the coverage of the insured's policy. Motorists Mut. v. Trainor (1973), 33 Ohio St.2d 41, 294 N.E.2d 874 paragraph two of the syllabus. See, also, Willoughby Hills v. Cincinnati Ins. Co. (1984), 9 Ohio St.3d 177, 459 N.E.2d 555. In the instant case, the allegations of negligence set forth in Victor Thompson's complaint against Albert Sabo bring the action within the coverage of Sabo's homeowners policy; and, the presence of additional allegations, which state an intentional tort claim, does not automatically remove Thompson's action from the coverage of that policy. When a complaint against an insured states both negligence and intentional tort claims that are based upon the same occurrence, the insurance company that is contractually obligated to defend the insured in negligence actions is required to make a defense as to both claims against the insured, regardless of the ultimate outcome of the action or the insurance company's ultimate liability to the insured. See State Farm Fire & Cas. Co. v. Pildner (1974), 40 Ohio St.2d 101, 321 N.E.2d 600 (insurer must provide defense in a civil action that is based upon the same occurrence that formed the basis for the insured's criminal conviction on charge of "shooting with intent to wound"); Motorists Mut. v. Trainor, supra; and Willoughby Hills v. Cincinnati Ins. Co., supra, 9 Ohio St.3d at 180-181, 459 N.E.2d 555.

In spite of the foregoing, the appellant (Preferred) contends that, because Sabo's pretrial admissions and the facts developed before the trial court clearly reveal that Sabo intentionally injured Thompson and that the underlying dispute between Sabo and Thompson arose out of a landlord-tenant relationship, Sabo's homeowners policy exclusions for "expected or intended" injuries and injuries "arising out of business pursuits" remove any obligation that Preferred might otherwise owe to Sabo.

With regard to Preferred's assertion that Thompson's injuries arose out of Sabo's business pursuit, we note that the trial court, as trier of fact, determined that "Sabo's act in defending himself constituted conduct ordinarily incident to a non-business pursuit," which conduct is expressly excepted from the business-pursuit exclusion. While Sabo originally became embroiled in a dispute with Thompson as a result of his business activity (i.e., as a landlord), the evidence in the record also shows that (1) Thompson was throwing rocks at Sabo's own residence, (2) Sabo was standing just outside the doorway of his residence when he was "grabbed" by Thompson, and (3) Sabo was attempting to prevent personal injury to himself when he shot Thompson. In light of the foregoing, the evidence clearly supports the trial court's conclusion that Thompson's injuries, having arisen out of activities "ordinarily incident to a non-business pursuit," are not excluded from the coverage of Sabo's homeowners policy.

We next address Preferred's assertion that, by shooting Thompson, Sabo caused an injury that was "expected or intended" and therefore excluded from the coverage of his homeowners policy. Sabo's undisputed testimony reveals that he did, in fact, intend to shoot Thompson, but a question remains as to whether this intentional act properly falls within the "expected or intended" injury exclusion to Sabo's policy of insurance. Preferred accepts the trial court's conclusion that the shooting was "possibly in self-defense," but it contends that no distinction may be drawn under the "expected or intended" injury exclusion between injuries caused by persons acting wrongfully and those acting under a claim of right (e.g., in self-defense). While...