738 N.E.2d 1243 (Ohio 2000), 99-1986, Doe v. Shaffer

• Citation: 738 N.E.2d 1243, 90 Ohio St.3d 388, 2000-Ohio-186
• Opinion Judge: Cook, J.
• Party Name: DOE et al.; Interstate Fire and Casualty Company, Appellee, v. SHAFFER et al.; Diocese of Columbus et al., Appellants.
• Attorney: Reminger & Reminger, Clifford C. Masch and David Ross, Cleveland, for appellee. Reminger & Reminger, Clifford C. Masch and David Ross, for appellee. Kegler, Brown, Hill & Ritter, Thomas W. Hill, Robert G. Schuler and Paul D. Ritter, Jr., for appellants.
• Judge Panel: MOYER, C.J., FRANCIS E. SWEENEY, SR. and PFEIFER, JJ., concur. DOUGLAS and RESNICK, JJ., concur in judgment only. [90 Ohio St.3d 396] Lundberg Stratton, J., concurring in part and dissenting in part.
• Case Date: December 20, 2000
• Court: Ohio Supreme Court

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738 N.E.2d 1243 (Ohio 2000)

90 Ohio St.3d 388, 2000-Ohio-186

DOE et al.; Interstate Fire and Casualty Company, Appellee,

v.

SHAFFER et al.; Diocese of Columbus et al., Appellants.

No. 99-1986.

Supreme Court of Ohio

December 20, 2000.

Submitted Sept. 13, 2000.

SYLLABUS BY THE COURT

[90 Ohio St.3d 389] Ohio public policy permits a party to obtain liability insurance coverage for negligence related to sexual molestation when that party has not committed the act of sexual molestation. (Gearing v. Nationwide Ins. Co. [1996], 76 Ohio St.3d 34, 665 N.E.2d 1115, paragraph two of the syllabus, construed; Cuervo v. Cincinnati Ins. Co. [1996], 76 Ohio St.3d 41, 665 N.E.2d 1121, and Westfield Cos. v. Kette [1996], 77 Ohio St.3d 154, 672 N.E.2d 166, modified.)

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John Doe ¹ was a mentally retarded man who, until 1992, had resided for over twenty years in Pike County at the Good Shepherd Manor ("Manor"), a residential care facility for the mentally retarded. The Manor was formerly operated by a Roman Catholic religious order known as the Little Brothers of the Good Shepherd ("the Brothers"). In 1985, following allegations that there had been incidents of financial mismanagement and sexual abuse at the Manor, the Brothers were removed from the Manor by order of the Superior General of the Brothers, who was based in New Mexico.

In late 1992, after Doe was diagnosed as having contracted the human immunodeficiency virus ("HIV"), he moved from the Manor to his parents' residence in Hamilton County. Doe and his parents, acting individually and on his behalf, filed suit in 1993 against the Brothers, individual employees of that order, the Catholic Diocese of Columbus ("the Diocese"), Bishop James A. Griffin, and others, ² alleging that Doe had been sexually molested and infected with HIV by Manor employees under the control of the Diocese and Griffin. The Does alleged several causes of action against the various parties, including negligent hiring, transmission of a communicable sexually transmitted disease, fraud, and sexual molestation. ³ During the pendency of this suit, Doe died of complications related to acquired immune deficiency syndrome. ⁴

[90 Ohio St.3d 390] Doe's parents settled with Griffin and the Diocese. Prior to settlement, however, appellee Interstate Fire & Casualty Company ("Interstate") intervened, seeking a declaratory judgment that it had no duty to defend or indemnify the Diocese or Griffin under three separate insurance policies in effect during the pertinent time frame. The policies provided liability indemnity coverage in excess of the limits of

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coverage afforded by a number of underlying insurance policies.

The Diocese and Griffin filed an answer that included a counterclaim for declaratory judgment that Interstate possessed a duty to defend and indemnify them. Interstate then moved for summary judgment. The trial court denied the motion, but then granted judgment for Interstate upon reconsideration. The court entered summary judgment for Interstate on the grounds that public policy barred coverage both for intentional acts of sexual molestation and for negligence claims that flowed from the molestation. The court of appeals affirmed, holding that, because intentional acts of sexual molestation and negligence claims that are derived from such acts are uninsurable pursuant to Ohio public policy, Interstate was entitled to summary judgment as a matter of law.

The cause is before this court upon allowance of a discretionary appeal.

Reminger & Reminger, Clifford C. Masch and David Ross, Cleveland, for appellee.

Kegler, Brown, Hill & Ritter, Thomas W. Hill, Robert G. Schuler and Paul D. Ritter, Jr., Dublin, for appellants.

COOK, J.

This case presents the issue of whether the public policy precluding liability insurance coverage for acts of sexual molestation also prohibits coverage for a nonmolester for related claims alleging negligent supervision, negligent retention, and negligent failure to warn. Because we conclude that such coverage does not violate public policy, we reverse the judgment of the court of appeals and remand this cause for further proceedings.

I. Standard of Review

We review the grant of summary judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241, 245. Therefore, Interstate may prevail under Civ.R. 56(C) only if "(1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion when viewing evidence in favor of the nonmoving party, and that conclusion is adverse to the nonmoving party." Id., citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 219, 631 N.E.2d 150, 152.

[90 Ohio St.3d 391] II. Application of Ohio Public Policy

We now consider whether, as a matter of law, Ohio public policy precludes insurance coverage for the negligence alleged here. We conclude that it does not.

As early as 1938, this court found that it was "well settled from the standpoint of public policy that the act of intentionally inflicting an injury cannot be covered by insurance in anywise protecting the person who inflicts such injury . " Rothman v. Metro. Cas. Ins. Co. (1938), 134 Ohio St. 241, 246, 12 O.O. 50, 52, 16 N.E.2d 417, 420. See, also, Commonwealth Cas. Co. v. Headers (1928), 118 Ohio St. 429, 161 N.E. 278. Accordingly, we have long adhered to the view that Ohio prohibits insuring against liability for one's own intentional torts. See Buckeye Union Ins. Co. v. New England Ins. Co. (1999), 87 Ohio St.3d 280, 283, 720 N.E.2d 495, 498; Gearing v. Nationwide Ins. Co. (1996), 76 Ohio St.3d 34, 38, 665 N.E.2d 1115, 1118; Wedge Products, Inc. v. Hartford Equity Sales Co. (1987), 31 Ohio St.3d 65, 67, 31 OBR 180, 181, 509 N.E.2d 74, 76 (no coverage for tort where employer was substantially certain that employees would be injured); Preferred Mut. Ins. Co. v. Thompson (1986), 23 Ohio St.3d 78, 81, 23 OBR 208, 210, 491 N.E.2d 688, 691.

Application of this public policy has not always been absolute. In Harasyn v. Normandy Metals, Inc. (1990), 49 Ohio St.3d 173, 551 N.E.2d 962, for example, we addressed whether the general public policy precluding insuring against liability for intentional torts prevented an employer

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from procuring insurance for a tortious act performed not with purpose to injure but with the knowledge that injury was substantially certain to occur. We concluded that it did not. ⁵ We reasoned:

"It is often said that public policy prohibits liability insurance for intentional torts. This statement is based on 'the assumption that such conduct would be encouraged if insurance were available to shift the financial cost of the loss from the wrongdoer to his insurer. * * * ' Farbstein & Stillman, Insurance for the Commission of Intentional Torts (1969), 20 Hastings L.J. 1219, 1245-1246. However, this blanket prohibition 'makes no distinctions as to the various forms of intentional wrongdoing and does not admit the possibility that some torts might not be particularly encouraged if insurance were available for them.' Id. at 1251. The better view is to prohibit insurance only for those intentional torts [90 Ohio St.3d 392] where 'the fact of insurance coverage can be related in some substantial way to the commission of wrongful acts of that character. * * * ' Isenhart v. General Cas. Co. (1962), 233 Ore. 49, 52-53, 377 P.2d 26, 28." (Citations omitted.) Id. at 176, 551 N.E.2d at 965.

In Gearing, we then analyzed the general public policy in the context of sexual molestation claims. There, this court was asked to decide whether courts should infer intent to injure as a matter of law from the sexual abuse of a child. We held, as have the overwhelming majority of other jurisdictions, that courts should infer such intent. Gearing, 76 Ohio St.3d at 37-38, 665 N.E.2d at 1118. As a result, we concluded that public policy precluded the issuance of coverage for this intentional tort. Id. at 40, 665 N.E.2d at 1119.

We issued our decision in Gearing on the same day that we issued Cuervo v. Cincinnati Ins. Co. (1996), 76 Ohio St.3d 41, 665 N.E.2d 1121. In Cuervo, this court addressed whether a father could be indemnified under his homeowner's policy for claims of negligence brought because his son, who was also an insured on the policy, molested a child. After first deciding that Gearing forbids indemnification of the son, this court went on to hold that public policy also forecloses indemnification of the father, saying:

"Similarly, the damages for which the Cuervos seek compensation flow from [the son's] intentional acts of sexual molestation of a minor. Thus, and on this record, the obligation of Cincinnati to pay the judgment entered against his father * * * is precluded as well." Id. at 44, 665 N.E.2d at 1122-1123.

The Diocese and Griffin interpret the Cuervo holding to say that the negligent insured is foreclosed from indemnification only when the intentional tortfeasor is an insured under the policy through which the negligent insured claims coverage. They assert that, unless the intentional tortfeasor is on the same policy as the negligent insured, insurance extends to negligence related to sexual molestation.

This court's opinion in Cuervo did not, however, analyze the language of the Cuervos' insurance policy. So, says Interstate, Cuervo cannot stand for the rule that coverage is denied only when the sexual molester is an insured on the same policy. Rather, Interstate argues, Cuervo stands for the proposition that "insurance to anyone for injuries flowing from sexual molestation is against public policy." ⁶ (Emphasis added.)

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[90 Ohio St.3d 393] In order to resolve this debate between the parties, we reevaluate the Cuervo judgment that...