Nationwide Mut. Fire Ins. Co. v. Kubacko

• Decision Date: 08 December 1997
• Docket Number: No. 96-T-5503,96-T-5503
• Citation: 706 N.E.2d 17,124 Ohio App.3d 282
• Parties: NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellant, v. KUBACKO et al.; Craft et al., Appellees.
• Court: Ohio Court of Appeals

Page 282

124 Ohio App.3d 282

706 N.E.2d 17

NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellant, v. KUBACKO et al.; Craft et al., Appellees.

No. 96-T-5503.

Court of Appeals of Ohio Eleventh District, Trumbull County.

Decided Dec. 8, 1997.

Williams & Sennett Co., L.P.A., James A. Sennett and Louis R. Moliterno, Hudson, for Appellant.

Ohlin, Ohlin & Scher Co., L.P.A., and Joseph D. Ohlin, Warren, for Appellees.

FORD, Presiding Judge.

This is an appeal from the Trumbull County Court of Common Pleas. Appellant, Nationwide Mutual Fire Insurance Company, appeals from the granting of summary judgment by the trial court in favor of appellees, Kyle L. Craft ("Kyle"), a minor, and Suzanne Craft ("Suzanne") in a declaratory judgment action. ¹

Suzanne Craft, now known as Suzanne Kubacko, is the natural mother of Kyle; Andrew is the natural father of Kevin. At the time of the incident, Suzanne and Andrew were engaged; they have since married. On March 1, 1994, Kevin ² was baby-sitting Kyle at the residence then shared by Andrew and Kevin on Route 46 in Cortland, Ohio. According to Kevin, Kyle was playing near a wood-burning furnace when he leaned against the hot surface and was burned on his buttocks. Sometime later, Kevin placed Kyle in a bathtub in which the water was too hot. Consequently, Kyle received second- and third-degree burns over eighteen percent of his body. Kyle's injuries went untreated for approximately five hours, increasing the severity of his injuries.

Pursuant to the filing of a bill of information by the prosecutor, Kevin was charged with one count of child endangering, in violation of R.C. 2919.22(A), a felony of the fourth degree, with a specification. Kevin voluntarily entered a guilty plea to the charge of child endangering on August 30, 1995, after being advised of his rights and of the elements of child endangering. ³ In a judgment entry dated October 26, 1995, Kevin was sentenced to one year in prison, which sentence was suspended by the court in lieu of five years of probation. The trial court also ordered that Kevin make restitution in the amount of the medical expenses, and pay the costs of prosecution.

Previously, on August 27, 1993, appellant had issued a tenant's insurance policy, naming Andrew as the insured. The policy contained an exclusionary provision stating that personal liability and medical payments were not applicable to bodily injury or property damage "which [was] expected or intended by the insured." (Emphasis sic.) Andrew's policy was subsequently amended by an endorsement containing the following liability exclusion:

"Section II--Exclusions

"In all policies under the Section II--Exclusions for Personal Liability and Medical Payments to Others, paragraph a. is deleted and replaced by the following:

"a. caused intentionally by or at direction of an insured, including willful acts the result of which the insured knows or ought to know will follow from the insured's conduct." ⁴ (Emphasis sic.)

On May 30, 1995, appellant filed a complaint for declaratory judgment, requesting the trial court to declare that the incident claimed by defendants Andrew, Kevin, Suzanne, and Kyle was excluded by the intentional-acts exclusion of Andrew's policy with appellant. Appellees Suzanne and Kyle filed an answer and a counterclaim on July 27, 1995, requesting that the court declare that the negligent and/or accidental acts of Kevin be covered by appellant, and requesting a declaration from the court that the policy provide personal liability coverage in the amount of $100,000, separately, to both of their claims, and that the policy provide medical payments in behalf of Kyle for $1,000. Defendant Kevin filed a separate answer on July 27, 1995.

Appellees Suzanne and Kyle filed a motion for summary judgment on January 25, 1996. ⁵ They filed a cross-claim against Kevin on February 2, 1996, seeking monetary damages for Kevin's alleged negligence. Appellant filed its motion for summary judgment on March 29, 1996.

In a judgment entry filed on June 7, 1996, the trial court overruled appellant's motion for summary judgment, and granted the motion of appellees Suzanne and Kyle, determining that (1) in view of the holding in Physicians Ins. Co. of Ohio v. Swanson (1991), 58 Ohio St.3d 189, 569 N.E.2d 906, "[t]here [was] no evidence before the Court that would indicate that Kevin Kubacko even knew the bath water was hot nor did he know that the child would be injured"; (2) "[c]hild endangering does not require knowledge or intent under [the] statute, [but] at best the requirement is recklessness," which the court found to be a different standard than willful or intentional; and (3) appellant failed to carry the burden of establishing that the actions were excluded by the specific and unambiguous terms of the insurance contract and the conduct was, therefore, presumed to be covered. The trial court first declared that $100,000 of personal liability coverage was available to Kyle under the policy. The court next determined that $100,000 of personal liability coverage was also available to Suzanne. Finally, the trial court stated that the policy would provide medical payments on behalf of Kyle in the amount of $4,000.

Appellant filed a timely appeal ⁶ and raises the following assignments of error:

"[1.] The trial court erred to the prejudice of [appellant] by incorrectly and arbitrarily determining an amount of coverage available under appellant Nationwide's policy of insurance with appellees.

"[2.] The trial court erroneously granted summary judgment in favor of appellees because genuine issues of material fact exist concerning whether appellee Kevin Kubacko knew, or ought to have known, his conduct in placing appellee Kyle Craft in scalding water would cause injury.

"[3.] The trial court erred in its application of Physicians Ins. Co. [of Ohio ] v. Swanson to the instant case because different policy exclusions distinguish this case from Swanson, and because an issue of material fact exists regarding whether appellee Kevin Kubacko knew, or ought to have known, his conduct would cause injury.

"[4.] The court erred in its award of summary judgment in favor of appellee Kevin Kubacko because the ruling allows a convicted felon to be indemnified by insurance for an illegal act, and is thus contrary to public policy." ⁷

Due to the interrelatedness of the issues in the second and third assignments, we will address the alleged errors under those assignments in consolidated fashion. Since those assignments are dispositive, we will consider them first.

The applicable standard of review for a summary judgment was stated by this court in Motorists Mut. Ins. Co. v. Manning (Aug. 29, 1997), Geauga App. No. 96-G-1999, unreported, at 3, 1997 WL 531235:

"As in any summary judgment exercise, the movant bears the responsibility of demonstrating to the trial court that there is an absence of a genuine issue of material fact, and that the movant is entitled to judgment as a matter of law. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105 . If the movant fails to satisfy this burden, summary judgment must be denied. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293 . If the motion for summary judgment is sufficient to demonstrate an absence of triable issues, a corresponding duty is triggered in the non-movant to come forward with evidence demonstrating a jury question. State ex rel. Mayes v. Holman (1996), 76 Ohio St.3d 147, 148 . If the non-movant is successful in rebutting the movant's case, summary judgment must be denied. * * * An appellate court subjects a lower court's entry of summary judgment to a de novo standard of review. Am. States Ins. Co. v. Guillermin (1996), 108 Ohio App.3d 547, 552 ."

In a declaratory judgment action brought by an insurer, the burden is on the insurer to establish an exclusion. Continental Ins. Co. v. Louis Marx & Co. (1980), 64 Ohio St.2d 399, 401, 18 O.O.3d 539, 540, 415 N.E.2d 315, 317. "In order to avoid coverage on the basis of an intentional-act exclusion, the insurer must demonstrate that the injury itself was intentional or expected." W. Res. Mut. Ins. Co. v. Campbell (1996), 111 Ohio App.3d 537, 541, 676 N.E.2d 919, 922.

In Gearing v. Nationwide Ins. Co. (1996), 76 Ohio St.3d 34, 665 N.E.2d 1115, the Ohio Supreme Court articulated the "inferred intent" rule in a child sexual molestation case: "under the inferred intent rule, intent to injure is inferred as a matter of law from the act of sexual abuse of a child itself, as harm is deemed inherent in the sexual molestation, regardless of the offender's expression of subjective intent * * *." Id. at 36-37, 665 N.E.2d at 1117. The act of child sexual molestation and the harm caused thereby are "virtually inseparable." Id. at 37, 665 N.E.2d at 1117-1118.

Although R.C. 2919.22(A) does not expressly state a culpable mental state as an element of the crime of child endangering, the Supreme Court of Ohio has recently held that "[t]he existence of the culpable mental state of recklessness is an essential element of the crime of endangering children under R.C. 2919.22(A)." State v. McGee (1997), 79 Ohio St.3d 193, 680 N.E.2d 975, syllabus. See, also, State v. Adams (1980), 62 Ohio St.2d 151, 16 O.O.3d 169, 404 N.E.2d 144 (construing R.C. 2919.22[B]); State v. O'Brien (1987), 30 Ohio St.3d 122, 30 OBR 436, 508 N.E.2d 144, (construing R.C. 2919.22 [B]); State v. Duke (Sept. 30, 1993), Portage App. No. 93-P-0010, unreported, 1993 WL 406574; State v. Schoolcraft (May 29, 1992), Portage App. No. 91-P2340, unreported, 1992 WL 276661.

In our opinion, the critical distinction between the policy exclusion in Swanson and the clause at issue here is that the exclusionary language in the case sub judice is more broadly worded than the exclusion in Swanson, since it precludes coverage for intentionally or willfully caused injuries. Recklessness has been held to be the functional equivalent of willfulness in the civil...