Hoyle v. DTJ Enters., Inc.

• Decision Date: 12 March 2015
• Docket Number: No. 2013–1405.,2013–1405.
• Parties: HOYLE, Appellee; The Cincinnati Insurance Company, Appellant, v. DTJ ENTERPRISES, INC., et al., Appellees.
• Court: Ohio Supreme Court

143 Ohio St.3d 197

36 N.E.3d 122

2015 Ohio 843

HOYLE, Appellee; The Cincinnati Insurance Company, Appellant,

v.DTJ ENTERPRISES, INC., et al., Appellees.

No. 2013–1405.

Supreme Court of Ohio.

Submitted June 10, 2014.

Decided March 12, 2015.

Plevin & Gallucci and David R. Grant ; and Paul W. Flowers Co., L.P.A., and Paul W. Flowers, Cleveland, for appellee Duane Allen Hoyle.

Koehler Neal, L.L.C., and Timothy J. Fitzgerald, Cleveland; and Michael M. Neltner and Stephen J. Chuparkoff, for appellant, Cincinnati Insurance Company.

Jackson Kelly, P.L.L.C., and Mark W. Bernlohr ; Davis & Young, L.P.A., and David G. Utley, Akron; and Morrow & Meyer, L.L.L., and Todd T. Morrow, North Canton, for appellees DTJ Enterprises, Inc., and Cavanaugh Building Corporation.

Freund, Freeze & Arnold and T. Andrew Vollman, Dayton, urging reversal for amicus curiae Ohio Association of Civil Trial Attorneys.

Traska Kimbrell, Ltd., and Peter D. Traska, urging affirmance for amicus curiae Ohio Association for Justice.

FRENCH, J.

{¶ 1} This appeal presents questions regarding the insurability of employer intentional torts under R.C. 2745.01. We hold that an insurance provision that excludes coverage for acts committed with the deliberate intent to injure an employee precludes coverage for employer intentional torts, which require a finding that the employer intended to injure the employee.

Factual Background

{¶ 2} Appellee, Duane Allen Hoyle, brought this action to recover for injuries he sustained when he fell from a ladder-jack scaffold while working as a carpenter on a construction project for his employers, appellees, DTJ Enterprises, Inc. ("DTJ") and Cavanaugh Building Corporation ("Cavanaugh"). Hoyle describes a ladder-jack scaffold as an apparatus consisting of two extension ladders positioned vertically, with a horizontal walkway platform supported by brackets spanning the space between them. Ladder jacks are the brackets that support the platform. Webster's Third New International Dictionary 1262 (3d Ed.1993). They are generally secured to the ladder with a bolt or pin that goes though the ladder jack and is secured in back by a nut.

{¶ 3} Phillip L. Colleran, a certified safety professional and professional member of the American Society of Safety Engineers who executed an expert affidavit on Hoyle's behalf, states that, for worker safety, each ladder-jack bracket must be secured to the ladder and the platform must be secured to each bracket. When Hoyle assembled the ladder-jack scaffold on this project, however, he did not have the bolts or pins to secure the ladder jacks to the ladders. Hoyle claims that the job superintendent, Kevin Everett, kept the bolts in his office and told employees they did not need them because they take too much time to use.

{¶ 4} On March 25, 2008, Hoyle fell approximately 14 feet from the ladder-jack scaffold and landed on a concrete pad. Just before his fall, Hoyle stepped onto a portion of the platform that extended past the ladder jack on one end, causing the ladder jack on the opposite end to lift and detach from its ladder. As Hoyle moved back toward the center, the detached ladder jack lowered, but missed the rungs of the ladder and pushed the ladder outward. The ladder and Hoyle fell to the concrete below.

{¶ 5} Hoyle sued DTJ and Cavanaugh in the Summit County Court of Common Pleas, alleging claims of employer intentional tort. Appellant, the Cincinnati Insurance Company ("CIC"), which insured DTJ and Cavanaugh under a commercial general liability ("CGL") policy, intervened and filed a complaint for a declaratory judgment that it has no obligation to indemnify DTJ and Cavanaugh for Hoyle's injuries.¹ The only issue before us in this appeal is whether CIC has a duty to indemnify DTJ and Cavanaugh should Hoyle prevail on his employer-intentional-tort claims.

{¶ 6} Unlike the broader duty to defend, an insurer's duty to indemnify its insureds is based on whether there is, in fact, actual liability. Chemstress Consultant Co., Inc. v. Cincinnati Ins. Co., 128 Ohio App.3d 396, 402, 715 N.E.2d 208 (9th Dist.1998). Before turning to the language of the CIC policy and the procedural history of this case, we first briefly examine the history and scope of civil liability for employer intentional torts in Ohio.

Employer Intentional Torts

{¶ 7} Because of the immunity conferred by R.C. 4123.74 and Article II, Section 35, Ohio Constitution, for the vast majority of workplace injuries, a workers' compensation claim is an employee's exclusive remedy. See generally Van Fossen v. Babcock & Wilcox Co.,

36 Ohio St.3d 100, 110, 522 N.E.2d 489 (1988). But when an employee seeks damages resulting from an act or omission committed by the employer with the intent to injure, the claim arises outside of the employment relationship, and the workers' compensation system does not preempt the employee's cause of action. Brady v. Safety–Kleen Corp., 61 Ohio St.3d 624, 576 N.E.2d 722 (1991), paragraph one of the syllabus. This court first recognized an employee's right to sue his or her employer for an intentional tort in Blankenship v. Cincinnati Milacron Chems., Inc., 69 Ohio St.2d 608, 433 N.E.2d 572 (1982), syllabus. We reasoned that extending the immunity afforded to employers by the workers' compensation system to intentional torts would not further the legislative goals underlying the Workers' Compensation Act: "Affording an employer immunity for his intentional behavior certainly would not promote [a safe and injury-free work environment], for an employer could commit intentional acts with impunity with the knowledge that, at the very most, his workers' compensation premiums may rise slightly." Id. at 615, 433 N.E.2d 572.

{¶ 8} An intentional tort involves an act committed with the specific intent to injure or with the belief that injury is substantially certain to occur. Jones v. VIP Dev. Co., 15 Ohio St.3d 90, 95, 472 N.E.2d 1046 (1984), citing 1 Restatement of the Law 2d, Torts, Section 8A (1965). When the employer proceeds despite knowledge that injuries are certain or substantially certain to result, "he is treated by the law as if he had in fact desired to produce the result." Fyffe v. Jeno's, Inc., 59 Ohio St.3d 115, 118, 570 N.E.2d 1108 (1991). Under Fyffe, an employee could establish intent based on substantial certainty by demonstrating the following:

(1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation; (2) knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be a substantial certainty; and (3) that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task.

Id .

{¶ 9} R.C. 2745.01, which now governs employer intentional torts in Ohio, took effect on April 7, 2005, and provides as follows:

(A) In an action brought against an employer by an employee * * * for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be liable unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.

(B) As used in this section, "substantially certain" means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.

(C) Deliberate removal by an employer of an equipment safety guard * * * creates a rebuttable presumption that the removal * * * was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result.

R.C. 2745.01 passes constitutional muster, Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, syllabus, despite this court's having struck down as unconstitutional prior attempts to codify employer-intentional-tort liability in Ohio. See Brady, 61 Ohio St.3d 624, 576 N.E.2d 722 ; State ex rel. Ohio AFL–CIO v. Voinovich, 69 Ohio St.3d 225, 631 N.E.2d 582 (1994) ; Johnson v. BP Chems., Inc., 85 Ohio St.3d 298, 707 N.E.2d 1107 (1999).

{¶ 10} R.C. 2745.01(A) incorporates the definition of an employer intentional tort from Jones, 15 Ohio St.3d at 95, 472 N.E.2d 1046, and requires a plaintiff to prove either deliberate intent to injure or a belief that injury was substantially certain. But R.C. 2745.01(B) equates "substantially certain" with "deliberate intent" to injure. Thus, the " ‘two options of proof [under R.C. 2745.01(A) ] become: (1) the employer acted with intent to injure or (2) the employer acted with deliberate intent to injure.’ " Kaminski at ¶ 55, quoting Kaminski v. Metal & Wire Prods. Co., 175 Ohio App.3d 227, 2008-Ohio-1521, 886 N.E.2d 262, ¶ 31 (7th Dist.). "[W]hat appears at first glance as two distinct bases for liability is revealed on closer examination to be one and the same." Rudisill v. Ford Motor Co., 709 F.3d 595, 602–603 (6th Cir.2013) (describing R.C. 2745.01 as "a statute at war with itself").

{¶ 11} The General Assembly's intent in enacting R.C. 2745.01 was to "significantly restrict" recovery for employer intentional torts to situations in which the employer "acts with specific intent to cause an injury." Kaminski, 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066 at ¶ 57 ; Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, ¶ 26, citing Kaminski at ¶ 56. "[A]bsent a deliberate intent to injure another, an employer is not liable for a claim alleging an employer intentional tort, and the injured employee's exclusive remedy is within the workers' compensation system." Houdek v. ThyssenKrupp Materials N.A., Inc., 134 Ohio St.3d 491, 2012-Ohio-5685, 983 N.E.2d 1253, ¶ 25.

{¶ 12} R.C. 2745.01(C) permits an employee to prove the...