Randolf v. Grange Mut. Cas. Co.

• Citation: 57 Ohio St.2d 25,385 N.E.2d 1305,11 O.O.3d 110
• Decision Date: 21 February 1979
• Docket Number: No. 78-696,78-696
• Parties: , 11 O.O.3d 110 RANDOLF, Appellant, v. GRANGE MUTUAL CASUALTY CO., Appellee.
• Court: Ohio Supreme Court

Page 25

57 Ohio St.2d 25

385 N.E.2d 1305, 11 O.O.3d 110

RANDOLF, Appellant, v. GRANGE MUTUAL CASUALTY CO., Appellee.

No. 78-696.

Supreme Court of Ohio.

Feb. 21, 1979.

Syllabus by the Court

A homeowner's insurance policy that provides coverage for "property damage caused by an Occurrence," which latter term is defined in the policy as "an accident," does not obligate the insurer to pay the claim of an insured under the policy who incurs liability under R.C. 3109.09 for intentional damage caused by another separately insured under the same policy, absent other clear indicia of such obligation in the insurance contract.

Appellant, Wesley E. Randolf, is the holder of a homeowner's insurance policy issued by the appellee, Grange Mutual Casualty Company. Under the policy both the appellant and his minor son, Edward, are separately insured.

The parties concede that in March of 1975 Edward intentionally and willfully caused damage in excess of $2,000 to the property of a third party. Pursuant to rights granted an owner of property under R.C. 3109.09, that third party demanded $2,000 from appellant as partial compensation for the damage. ^* The appellant, in turn, demanded that appellee pay the $2,000 claim on his behalf, alleging coverage under Section II, Coverage E of his homeowner's policy. Appellee paid $250 of this amount, not by virtue of the coverage afforded appellant under Section II, Coverage E, but under the Supplemental Coverages provision in the policy expressly limiting the appellee's liability to $250.

Appellant subsequently filed this action in Akron Municipal Court for the $1,750 balance. The trial court found for the appellant, holding in effect that the insurance contract covered a R.C. 3109.09 claim in full. On appeal, the Court of Appeals reversed, one judge dissenting.

The Court of Appeals certified the record of the case to this court for review and final determination for the reason that its judgment is in conflict with the determination of the Court of Appeals for Lake County in Nationwide Mut. Fire Ins. Co. v. Blake et al. (May 28, 1974), No. 5-037, unreported.

Gerald J. Glinsek and Richard L. Aynes, Akron, for appellant.

Buckingham, Doolittle & Burroughs Co., L. P. A., and Orville L. Reed, III, Akron, for appellee.

PAUL W. BROWN, Justice.

The issue certified to this court in essence is whether Section II, Coverage E, of appellant's insurance contract provides coverage for liability under R.C. 3109.09 for damage intentionally and willfully caused by one separately insured under the same policy.

The contract provides that the company shall pay " * * * all sums which the Insured shall become legally obligated to pay as damages because of * * * Property damage * * * Caused by an occurrence." (Emphasis added.) Section II, Coverage E. Occurrence is defined as "an accident" in the "Additional Definitions" section of the policy. "Accident" is not defined in the contract.

Appellee concludes from these provisions that appellant's liability is not within the scope of coverage afforded under Section II, Coverage E. The insurance company argues that "accident" connotes an unexpected event, that property damage resulting from an intentional act cannot be unexpected and that, therefore, the property damage at issue was not the result of "an accident" or "caused by an occurrence," a precondition to coverage under this provision of the contract.

Appellant does not dispute that the act which caused the damage was willful and intentional, and thus not within the ambit of Section II, Coverage E as to appellant's son, Edward. Rather, appellant argues that since both he and Edward are separately insured under the contract, Edward's lack of coverage does not necessarily preclude appellant from being insured under the policy. Further, appellant contends that because Edward's conduct was unexpected as to him, appellant's statutory Liability was "an accident" or "caused by an occurrence."

Appellant misreads the contract. While it may be accurately said that the insured's Liability under R.C. 3109.09 was the result of an "occurrence," this is immaterial in view of the specific language of Section II, Coverage E, which defines coverage in terms of "Damage * * * caused by an occurrence," not Liability caused by an occurrence. The distinction is well illustrated in this cause. From the fact that Liability may have been unexpected or "accidental" to appellant, it does not follow that the Damage was unexpected or accidentally caused. Indeed, appellant concedes that the damage was not the product of an accident but of Edward's willful and intentional misconduct. Since the contract makes "damage (not liability) * * * caused by an occurrence" a qualification of the insurer's liability, it would appear that Section II, Coverage E does not insure appellant for liability incurred pursuant to R.C. 3109.09.

Nevertheless, it is undisputed that the Supplementary Coverages provision under which $250 was paid to appellant by appellee contains language allowing an element of intention within the meaning of "occurrence," as used therein. The relevant portion of this provision states:

"This Company will, at its option, either pay for the actual cash value of property damaged or destroyed during the policy period of any Insured or repair or replace such property with other property of like quality and kind, but in no event shall this Company's limit of liability exceed $250 in any one Occurrence.

"This Coverage does not apply to damage to or destruction of property:

"a. caused intentionally by an insured who has attained the age of 13;" (Emphasis added.)

Thus, there may be an "occurrence" under the Supplementary Coverages provision of the policy although damage was intentionally caused by an insured (under age 13). The issue becomes whether this element of intent should be understood as changing the meaning of "occurrence" in Section II, Coverage E, so as to allow recovery for property damage intentionally caused. Stated differently, does "occurrence" within Section II, Coverage E now mean more than a mere "accident" in view of the use of the word "occurrence" in the Supplementary Coverages provision?

In resolving this issue, we face competing rules of...