Wedge Products, Inc. v. Hartford Equity Sales Co.

• Decision Date: 17 June 1987
• Docket Number: No. 86-370,86-370
• Citation: 509 N.E.2d 74,31 OBR 180,31 Ohio St.3d 65
• Parties: , 31 O.B.R. 180 WEDGE PRODUCTS, INC., Appellee, v. HARTFORD EQUITY SALES COMPANY, D.B.A. Hartford Fire Insurance Company, Appellant.
• Court: Ohio Supreme Court

Page 65

31 Ohio St.3d 65

509 N.E.2d 74, 31 O.B.R. 180

WEDGE PRODUCTS, INC., Appellee, v. HARTFORD EQUITY SALES COMPANY, D.B.A. Hartford Fire Insurance Company, Appellant.

No. 86-370.

Supreme Court of Ohio.

June 17, 1987.

Syllabus by the Court

An intentional tort allegedly committed by an employer against its employee is not covered by an insurance policy which provides protection for bodily injuries "neither expected nor intended" by the employer.

Defendant-appellant, Hartford Equity Sales Company, d.b.a. Hartford Fire Insurance Company ("Hartford"), issued an insurance policy providing general liability coverage to plaintiff-appellee, Wedge Products, Inc. ("Wedge"), effective from July 1, 1978 to July 1, 1981. The policy provided coverage for bodily injuries resulting from an "occurrence," which was defined 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." (Emphasis added.) The policy excluded coverage for any obligation for which Wedge was liable under the workers' compensation laws, and further excluded coverage for bodily injuries to employees of Wedge arising out of and in the course of their employment.

During the period when the policy was in effect, two employees of Wedge, Mark Pariseau and Donald Walls, filed separate actions against Wedge for personal injuries sustained in separate punch press accidents that occurred while they were working at Wedge's facility in Cleveland. Both employees alleged that their injuries resulted from intentional torts committed by Wedge. ¹ It is undisputed that Pariseau and Walls had previously applied for and received workers' compensation benefits.

Wedge timely notified Hartford of both actions filed against it, but Hartford declined to defend either of them. Hartford maintained that the policy provided no coverage because: (1) the employees' injuries were "expected or intended" by Wedge and (2) the employees' injuries arose out of and in the course of their employment.

Wedge brought declaratory judgment actions against Hartford. The trial court consolidated the two actions and held that Hartford was obligated under the policy to defend Wedge, and to indemnify Wedge for any judgments obtained against it by Pariseau or Walls. The court of appeals affirmed.

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

Petro, Rademaker, Cleveland, Matty & McClelland, Robert C. McClelland and Anne M. Wilhelm, Cleveland, for appellee.

McNeal, Schick, Archibald & Biro, Thomas Schick, Benesch, Friedlander, Coplan & Aronoff and John E. Martindale, Cleveland, for appellant.

Byron & Cantor Co., L.P.A., David E. Cruikshank and Barry M. Byron, Willoughby, urging affirmance for amici curiae, Ohio Municipal League et al.

HERBERT R. BROWN, Justice.

The threshold issue presented by this appeal is whether Hartford's insurance policy provides coverage for the claims asserted against Wedge by its employees. For the reasons that follow, we find that there is no coverage.

In Blankenship v. Cincinnati Milacron Chemicals (1982), 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572, we held that neither the Ohio Constitution nor the workers' compensation laws preclude an employee from enforcing common-law remedies against his employer for an intentional tort. In Jones v. VIP Development Co. (1984), 15 Ohio St.3d 90, 15 OBR 246, 472 N.E.2d 1046, paragraph one of the syllabus, we defined the term "intentional tort":

"An intentional tort is an act committed with the intent to injure another, or committed with the belief that such injury is substantially certain to occur."

We further explained: "Thus, a specific intent to injure is not an essential element of an intentional tort where the actor proceeds despite a perceived threat of harm to others which is substantially certain, not merely likely, to occur. It is this element of substantial certainty which distinguishes a merely negligent act from intentionally tortious conduct. * * * " (Emphasis sic.) 15 Ohio St.3d at 95, 15 OBR at 250, 472 N.E.2d at 1051.

The Jones definition of an "intentional tort" consists of a two-prong test. If a tortfeasor commits an act with (1) the intent to injure another or 2) the belief that such injury is substantially certain to occur, then an intentional tort has been committed. ²

Applying this test to the intentional tort allegations contained in Pariseau's and Walls' complaints, we are unable to discern any possibility of coverage under the policy issued to Wedge by Hartford. The policy covers bodily injuries "neither expected nor intended" by Wedge. Under the Jones test an intentional tort by Wedge must necessarily involve either an intent to injure or a belief that injury is substantially certain to occur. Clearly, no coverage is provided if Wedge intended to injure Pariseau and Walls. More importantly, we are unable to see how Wedge could have committed any acts with the belief that Pariseau or Walls were substantially certain to be injured, yet not have "expected" such injuries to occur.

Moreover, public policy is contrary to insurance against intentional torts. Blankenship, supra, 69 Ohio St.2d at 615, 23 O.O.3d at 509, 433 N.E.2d at 577; Rothman v. Metropolitan Cas. Ins. Co. (1938), 134 Ohio St. 241, at 246, 12 O.O. 50, at 52, 16 N.E.2d 417, at 420; Portaro v. American Guarantee & Liability Ins. Co. (N.D.Ohio 1962), 210 F.Supp. 411, 22 O.O.2d 348, affirmed (C.A. 6, 1962), 310 F.2d 897, 22 O.O.2d 354.

Therefore, we hold that an intentional tort allegedly committed by an employer against its employee is not covered by an insurance policy which provides protection for bodily injuries "neither expected nor intended" by the employer.

Additionally, the insurance contract in the case sub judice provides no coverage for claims by the employees which arise out of and in the course of their employment. By this provision, a claim which does not rise to the level of intentional tort is excluded. ³

Because there is no possibility of coverage under the policy for either of the actions filed against Wedge, it follows that Hartford has no duty to defend those actions. Motorists Mut. Ins. Co. v. Trainor (1973), 33 Ohio St.2d 41, 62 O.O.2d 402, 294 N.E.2d 874; Socony-Vacuum Oil Co. v. Continental Cas. Co. (1945), 144 Ohio St. 382, 29 O.O. 563, 59 N.E.2d 199.

We are mindful of our decision in Willoughby Hills v. Cincinnati Ins. Co. (1984), 9 Ohio St.3d 177, 9 OBR 463, 459 N.E.2d 555, syllabus, wherein we held: "Where the insurer's duty to defend is not apparent from the pleadings in the action against the insured, but the allegations do state a claim which is potentially or arguably within the policy coverage, or there is some doubt as to whether a theory of recovery within the policy coverage has been pleaded, the insurer must accept the defense of the claim."

As in Willoughby Hills, Hartford's policy states that its duty to defend exists "even if any of the allegations of the suit are groundless, false or fraudulent * * *." Willoughby Hills, however, does not require a defense where the complaint contains no allegation that states a claim "potentially or arguably within the policy coverage." There is no doubt here. No theory of recovery within the policy coverage has been pleaded, regardless of whether the allegations are true, false, fraudulent or groundless. Thus, Hartford has no duty to defend either action. See Zanco, Inc. v....