Physicians Ins. Co. of Ohio v. Swanson

• Decision Date: 03 April 1991
• Docket Number: No. 89-1900,89-1900
• Citation: 569 N.E.2d 906,58 Ohio St.3d 189
• Parties: PHYSICIANS INSURANCE COMPANY OF OHIO et al., Appellees, v. SWANSON et al., Appellants.
• Court: Ohio Supreme Court

Page 189

58 Ohio St.3d 189

569 N.E.2d 906

PHYSICIANS INSURANCE COMPANY OF OHIO et al., Appellees, v. SWANSON et al., Appellants.

No. 89-1900.

Supreme Court of Ohio.

Submitted Nov. 20, 1990.

Decided April 3, 1991.

Syllabus by the Court

In order to avoid coverage on the basis of an exclusion for expected or intentional injuries, the insurer must demonstrate that the injury itself was expected or intended.

On July 29, 1987, two groups of teenage children were playing near a small lake commonly referred to as the Turkeyfoot Heights swimming area. One group consisted of William Swanson, Mark Jogerst, and Joseph Jogerst. The other group was composed of Todd Baker, Robert Will, Mark Peridon, Shawna Wagler, and Shawna's brother and sister. Both groups of children had been swimming prior to their initial encounter. After Bill Swanson and his friends got out of the water and began to dry off on a nearby dock, someone in the other group insulted them. As a result, as they were leaving the area one of Bill Swanson's friends made an obscene gesture directed at the other group of children. Robert Will and Mark Peridon began to chase after Bill Swanson and his friends. Having no success at catching the other boys, both Robert and Mark returned to their group, which by then was resting at a picnic table close to the water's edge.

Meanwhile, Bill Swanson and the Jogerst brothers went to Bill's house. After a short time, Bill went up to his parents' bedroom, and while there, he saw and decided to take his father's BB gun. Bill and the two brothers went back toward the swimming area. They positioned themselves behind a shed approximately seventy to one hundred feet from the picnic table. Still upset over the previous encounter, Bill aimed the BB gun in the direction of the group at the picnic table, and shot three times. According to his testimony, Bill was aiming at a sign on a tree some ten to fifteen feet from the picnic table. His purpose in shooting at the sign was to scare the members of the group. Bill testified that because of the distance between the picnic table and the sign, he did not believe he would hit any of the children at the picnic table.

Shawna Wagler testified that while she and other members of her group were sitting around the picnic table, she felt a sting on her thigh. At first, Shawna did not know what had happened and initially blamed the sting on someone in her group. However, after glancing around the area, Shawna saw Bill standing behind the shed and pointing the BB gun in her direction. Shawna pointed towards Bill and said "There he is." With that, Todd Baker, who was lying on his stomach on top of the picnic table, looked up and turned his head in the direction of Bill Swanson. At that moment Todd was struck in the eye with a BB. As a result of this injury, Todd lost his right eye.

Todd Baker's parents filed a civil complaint on behalf of Todd and themselves against the Swansons, appellants herein. The Swansons had two insurance policies in effect at the time: one was issued by the Physicians Insurance Company of Ohio ("PICO"), while the other policy was issued by the Cincinnati Insurance Company ("Cincinnati"). The insurance companies filed a declaratory judgment action against the Swansons and the Bakers, seeking a declaration of their obligations under their respective contracts of insurance. Specifically, PICO and Cincinnati sought a ruling that the policies' exclusionary provisions exempted them from the duty to defend and indemnify the Swansons against the Bakers' lawsuit.

The trial court heard the declaratory judgment action on January 5, 1989. After making findings of fact and conclusions of law, the court held that Bill Swanson did not intentionally injure Todd Baker: "The evidence does not support a finding that William Swanson shot the B-B gun with the intent to injure anybody or with the belief that such injury was substantially certain to occur." The trial court concluded that Todd was injured by reason of an accident. Because both insurance policies excluded only expected or intentional injuries, the trial court determined that both PICO and Cincinnati had a duty to defend and indemnify. Both insurance companies appealed.

The court of appeals found our decision in Preferred Risk Ins. Co. v. Gill (1987), 30 Ohio St.3d 108, 30 OBR 424, 507 N.E.2d 1118, to be controlling. After noting the similarity of the language in the two policies at bar and the policy in Gill, supra, the appellate court reasoned "that it is the intentional nature of the act of the insured, rather than the result of such an act, such as the specific injury to Todd's right eye, which determines whether coverage will apply." Upon reviewing the trial court's findings and applying the above reasoning, the court of appeals reversed.

Finding its decision to conflict with that of the Eleventh District Court of Appeals in Motorists Ins. Co. v. Dadisman (Aug. 19, 1988), Trumbull App. No. 3976, unreported, 1988 WL 232960, the court certified the record of the case to this court for review and final determination.

Buckingham, Doolittle & Burroughs, Jeffrey E. Schobert and Mark D. Frasure, Akron, for appellees.

Scanlon & Gearinger Co., L.P.A., Timothy F. Scanlon and Paul F. Meyerhoefer, Akron, for appellants Gary and Rosemary Baker.

ALICE ROBIE RESNICK, Justice.

The issue presented in this case is the application of a provision in a contract of insurance excluding coverage for injuries expected or intended by the insured. We begin our analysis by reviewing the language of the two provisions involved.

The PICO insurance policy issued to appellants contains the following:

"Part I, Exclusions to Part G and Part H

"1. Part G, Personal Liability Coverage and Part H, Medical Payments to Others does [sic ] not apply to bodily injury or property damage:

"a) which is expected or intended by the insured[.]"

Appellants' policy with Cincinnati states as follows:

"PART I--DEFINITIONS

" * * *

"1. Personal Injury means:

"A. bodily harm * * * to others caused by an accident;

" * * * "3. Accident means an event or series of unrelated events that unexpectedly, unintentionally and suddenly causes personal injury or property damage during the policy period.

" * * *

"PART IV--WHAT IS NOT COVERED--EXCLUSIONS

" * * *

"8. We will not cover Personal Injury or Property Damage caused intentionally."

I

While the insurance policy issued by Cincinnati contains language different from that in the PICO policy, both policies are the same in effect: neither policy provides coverage for intentional or expected personal injuries caused by the insured. The difference is that one policy achieves this result by way of an express exclusion for such injuries (PICO), whereas the other policy does so by way of definition and an exclusion (Cincinnati). Since the effect of both policies is the same, we will treat the respective policy provisions in like manner.

Relying heavily on our decision in Gill, supra, the court of appeals concluded that both policies excluded coverage for the injury suffered by Todd Baker. When construing these policy provisions, the appellate court read Gill as focusing on the intentional nature of the act, rather than the result of the act, i.e., the injury. The court of appeals went on to note that the trial court specifically found that Bill intentionally fired the gun in the direction of Todd and the others at the picnic table. Thus, applying the above standard to the trial court's findings of fact and conclusions of law, the court of appeals held that the exclusions applied because the insured had acted intentionally.

In Gill, we held that "the insurer has no duty to defend or indemnify its insured where the insurer demonstrates in good faith in the declaratory judgment action that the act of the insured was intentional and therefore outside the policy coverage." Id. at paragraph two of the syllabus. However, the fact pattern in Gill is markedly different from that of the present case. The insured in Gill had pleaded guilty to aggravated murder with specifications for killing an eleven-year-old girl. While applying a policy exclusion nearly identical to that in the PICO policy to that fact pattern, we stated, " * * * where the conduct which prompted the underlying wrongful death suit is so indisputably outside coverage, we discern no basis for requiring the insurance company to defend or indemnify its insured * * *." Id. 30 Ohio St.3d at 113, 30 OBR at 428-429, 507 N.E.2d at 1123. After noting that an essential element of aggravated murder is that the perpetrator intend to cause death, the Gill court concluded that "Kerri's death was clearly 'expected or intended by the insured' and therefore the policy does not provide coverage for whatever personal liability Gill [the insured] may have." Id. at 115, 30 OBR at 430, 507 N.E.2d at 1124.

Thus, our holding that there was no coverage in Gill was premised on the facts that the insured intended to cause the injury of another person, and that this intent was conclusively established by the insured's plea of guilty to aggravated murder. Stated otherwise, our decision was based on a finding that the insured intended to cause an injury, i.e., the death of an eleven-year-old girl. While Gill used language regarding the intentional act or conduct of the insured, Gill actually stands for the proposition that it is the resultant injury which must be intended for the exclusion to apply to deny coverage.

II

Provisions contained in an insurance policy excluding intentional or expected injuries have been the subject of an extensive body of case law. See 12 Couch, Insurance (2 Ed.1981) 184-193, Section 44A:133; Annotation, Construction and Application of Provision of Liability Insurance Policy Expressly Excluding Injuries Intended or Expected By Insured (1984), 31 A.L.R. 4th 957. Our current interpretation of Gill is consistent with the majority rule that has emerged...