Cincinnati Ins. Co. v. Mosley

• Decision Date: 28 June 1974
• Citation: 322 N.E.2d 693,41 Ohio App.2d 113
• Parties: , 70 O.O.2d 127 CINCINNATI INS. CO., Appellee, v. MOSLEY et al., Maynard, Appellant. *
• Court: Ohio Court of Appeals

Page 113

41 Ohio App.2d 113

322 N.E.2d 693, 70 O.O.2d 127

CINCINNATI INS. CO., Appellee, v. MOSLEY et al., Maynard, Appellant. ^*

Court of Appeals of Ohio, Fourth District, Brown County.

June 28, 1974.

Syllabus by the Court

An unintended injury to a pedestrian caused by an insured in striking such pedestrian with his automobile, as a result of intentional acts of the insured in attempting to strike other pedestrians nearby, is not within the exclusion from coverage provision of a liability policy issued to the insured excluding coverage for 'bodily injury * * * caused intentionally by or at the direction of the insured.'

Smith H. Tyler, Jr. and Gary D. Bullock, Cincinnati, for appellee.

Edward J. Utz, Cincinnati, for appellant.

STEPHENSON, Presiding Judge.

This is an appeal instituted by Billy H. Maynard from a judgment in favor of the Cincinnati Insurance Company, appellee herein and hereafter referred to as the Company, declaring noncoverage with respect to a certain insurance policy issued by the Company, in which Debora Lynn Massey Mosley, hereinafter referred to as Debora, was an insured.

The following error is assigned:

'The trial court committed error prejudicial to the defendant in finding as a matter of law the Debora Lynn Massey Mosley was guilty of willful and wanton misconduct thereby negating the policy of insurance benefits and protection provided by said insurance company, since willful and wanton misconduct is covered under ordinary insurance policies.'

The record reflects that this action was originally instituted by the Company in the Common Pleas Court of Brown County against Debora and Harvey Massey. The averments of the complaint were, in substance, that the Company had issued an automobile liability policy of insurance to Harvey Massey, a copy of which was attached to the complaint. It was averred further that a suit had been instituted by Billy H. Maynard against Harvey Massey and Debora in which it was claimed that Debora had driven off U.S. Route 52, striking and injuring him. It was then averred, upon information and belief, that Debora acted 'intentionally and willfully in turning the automobile she was operating off the highway and into Billy H. Maynard.' This was followed by an averment that the conduct of Debora was not covered by the policy and a prayer that a declaration be made stating the Company was (1) not required to defend the maynard action, (2) not obligated to pay any judgment that might be recovered against Debora and (3) that Debora was not entitled to other benefits and protections provided in the policy with respect to Billy H. Maynard.

Evidence was presented in a bench trial at the conclusion of which the court took the case under advisement. At this point, Billy H. Maynard sought and was granted leave to intervene. An answer was filed by Maynard, in substance, denying, as did the answer of the original defendants, the averments that Debora acted intentionally and willfully in driving off the highway into Maynard and asserted the Debora's acts were covered under the policy.

By agreement of all counsel, the case was again submitted on the transcript of the evidence of the original trial and an additional deposition. The court entered findings of fact and conclusions of law.

The transcript of proceedings discloses, and is supported by the findings of the trial court, that Debora was pregnant by Stephen Cox, whom she later married. While driving on April 13, 1969, with two girl friends through Ripley, Ohio, toward Aberdeen, Ohio, she observed a Cindy Germann talking to Cox. She continued on east out of Ripley, but was angry and excited. She turned around and proceeded westerly back into Ripley. She observed, to her right, Cindy Germann and Elaine Clump walking off the highway in front of the Greenwood Restaurant. One witness in the car testified that Debora stated, 'She felt like hitting them.' Debora then turned off the traveled portion of the highway onto the parking lot in front of the Greenwood Restaurant toward Miss Clump and Miss Germann.

The two girls were able to evade the car, but it struck Billy H. Maynard, although the presence and striking of Maynard were unknown to Debora and the other occupants of the automobile. The factual findings of the court concludes with the statement:

'The court finds that she willfully and wantonly attempted to strike Miss Clump and Miss Germann with the car by driving it directly off the highway * * *.'

In its conclusions of law the court found Debora was 'guilty of wanton misconduct,' and '(t)he wanton and willful misconduct of Debora Lynn Massey Mosley was the direct and proximate cause of the defendant, Billy H. Maynard's injuries * * *.' It granted a judgment for the Company.

We begin with the observation that, although the findings of the court below are framed in the context of willful and wanton misconduct, those terms and their legal import in Ohio law do not, by...