Imagine you are investigating coverage on a claim potentially involving an intentional acts exclusion, and are taking a statement of the insured.  What is the likelihood they will blurt out they actually intended to harm the claimant?   Nothing is ever that easy.  Gunshots, stabbings, and punches seem to morph into mere “accidents”, and clever plaintiffs’ attorneys are often quick to agree.  How do you prove intent in such a context?  How do you prove intent when the underlying complaint is simply couched in terms of negligence?

A HISTORICAL PERSPECTIVE

In Preferred Risk Ins. Co. v. Gill, (1987), 30 Ohio St.3d 108, the insured pled guilty to and was convicted of aggravated murder.  The victim’s family argued the insurer’s declaratory judgment action failed to state a claim upon which relief could be granted, as it sought to invoke an intentional acts exclusion, even though the underlying tort suit only alleged negligence.  The Supreme Court disagreed, holding the duty to defend is not solely dependent upon what was pled in the underlying action, and that there is no duty to defend if the true facts establish the insured’s conduct falls beyond the policy’s coverage; i.e. was intentional and not negligent.  The Supreme Court concluded the requisite intent for aggravated murder established the insured “expected or intended” harm to result from their actions.

The Supreme Court attempted to parse the meaning of intend in Physicians Ins. Co. v. Swanson (1991), 58 Ohio St.3d 189.  Swanson shot another boy in the eye with a BB gun, partially blinding him.  Swanson claimed he never intended to shoot or harm the injured boy, but merely intended to shoot at a nearby sign to scare the boy and his friends.  The decision does indicate whether any criminal charges ensued.

The PICO policy excluded bodily injury “which is expected or intended by the insured[.]”  Cincinnati Insurance also had a policy, and it stated “We will not cover Personal Injury or Property Damage caused intentionally.”  The Supreme Court held coverage was not excluded, as only the gunshot was intended by Swanson, and not the resulting injury.

Nationwide Ins. Co. v. Estate of Kollstedt, 71 Ohio St.3d 624, 1996-Ohio-245, involved a homicide without a final adjudication of guilt.  Kollstedt was found incompetent to stand trial due to Alzheimer-related dementia and senility.  He died before the civil actions commenced so there was no testimony.  Expert medical testimony established he lacked the ability to have acted intentionally.  The Supreme Court held the intentional acts exclusion in Kollstedt’s homeowner’s policy did not apply as he lacked the mental capacity to act intentionally.

A series of Supreme Court decisions addressed coverage on sexual molestation claims.  The first such decision was Gearing v. Nationwide Ins. Co., 76 Ohio St.3d 34, 1996-Ohio-113.  Three minor sisters were molested by an older neighbor over a three year period.  The decision does not indicate whether any criminal charges ensued.  Gearing testified he intended to touch the girls sexually, and that he knew it was morally wrong to do so, but that at the time he did not know his actions could harm them.

The Supreme Court deliberately chose not to address the application of the intentional acts exclusion in Gearing’s homeowner’s policy, and instead focused on determining Gearing’s conduct constituted an “occurrence.”  They concluded an occurrence required an accidental event, and not an intentional one.  The Supreme Court held his conduct did not constitute an occurrence, as despite his professed ignorance, harm was so inherent in an act of sexual molestation.  They also recognized strong public policy against insuring intentional misconduct.

On that same date, the Supreme Court decided Cuervo v. Cincinnati. Ins. Co., 76 Ohio St.3d 41, 1996-Ohio-99, and reached the same conclusion.  The tortfeasor was a sixteen year old boy who molested two children while babysitting.  Even though the tortfeasor was a juvenile at the time of the abuse, Gearing was still applied; his capacity was never raised as an issue.  The victims and their parents obtained a default judgment against the boy’s father on negligence claims.  The Supreme Court held Gearing barred coverage for those claims since they flowed from the boy’s intentional acts.

The Supreme Court reconsidered its position on the last point of Cuervo in Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186.  The plaintiff in Doe was the estate of a mentally retarded man who died of AIDS after being infected through sexual abuse at a religious order’s residential care facility.  The underlying suit involved allegations of negligence against the order and supervisory personnel.  The defendants did not commit the actual sexual abuse, but it was alleged their negligence enabled it to occur.  The Supreme Court held there was coverage for a non-molester for claims of negligence relating to an act of sexual molestation.

EFFECT OF A CRIMINAL CONVICTION

The prevailing trend in recent years has been to enforce intentional act exclusions when the insured was convicted of a criminal offense with a requisite intent of acting at least knowingly.  A good illustration of this is a decision our firm won in the Twelfth District in Farmers Insurance of Columbus, Inc. v. Martin, 2005-Ohio-556.

Martin shot and severely injured a police officer while trespassing on his estranged wife’s property.  He had been drinking beer, took several Xanax and Zoloft pills, and thought he was acting in self-defense.  (Incidentally voluntary intoxication is not a defense to an intentional acts exclusion.  Grange Mut. Cas. Co.. v. Gore (May 12, 1997), Court of Appeals for Warren County, Case No. CA96-08-0706.)  Martin pled guilty to felonious assault, which requires knowingly causing serious physical harm; See R.C. 2903.11(A)(1).  The complaint filed against him only alleged negligence.

The Farmers policy contained broader language on intentional acts as compared to the earlier cases.  The policy excluded coverage for bodily injury, “(a) caused intentionally by or at the direction of an insured; or (b) results from any occurrence caused by an intentional act of any insured where the results are reasonably foreseeable.”  The second clause avoids Swanson, as it requires only the act to be intentional, and eliminates the need to prove any intent to injure.

The appellate court concluded Martin’s felonious assault conviction established sufficient intent to bar coverage.  This is consistent with decisions in recent years from other districts.  Baker v. White, 2003-Ohio-1614; The Horace Mann Cos. v. Harris (August 11, 1997), Court of Appeals for Madison County, Case No. CA96-11-051; Allstate Ins. Co. v. Cole (1998), 129 Ohio App. 3d 334; Western Reserve Mutual Ins. Co. v. Campbell (1996), 111 Ohio App.3d 537; Arrowood v. Grange Ins. Co., 2003-Ohio-4075; Westfield Ins. v. Barnett, 2003-Ohio-6278; Steinke v. Allstate Ins. Co. (1993), 86 Ohio App.3d 798.

The instrumentality causing harm also bears significance.  Some acts by their very nature establish intent.  This was the basis for the Supreme Court’s decision in Gearing.  In a number of shooting cases decided since Swanson, appellate courts have held shooting someone at close range establishes intent based upon the inherently dangerous nature of firearms and the inevitability of injury.  Moler v. Beach (1995), 102 Ohio App.3d 332; Adkins v. Ferguson, 2003-Ohio-403.  Familiarity with firearms can also serve as a basis for establishing intent.  Western Reserve Mut. Cas. Co. v. Macaluso (1993), 91 Ohio App.3d 93.

SUBSTANCE OVER FORM

One final case of note is State Farm v. Totarella, 2003-Ohio-5229.  Totarella chased several people who knocked on his door and ran away.  He caught one of the men and punched him repeatedly.  Totarella claimed he thought the man was an intruder and that he feared for his safety and only meant to restrain him until the police arrived.  The complaint alleged both negligent and intentional conduct.  The appellate court rejected the argument that the mere pleading of negligence created a factual issue as to intent.  They ruled alleging an act was negligent could not transform the act from one of intent to one accidental in nature.

FINAL CONSIDERATIONS

The Ohio Senate passed S.B. 117 in the latter portion of 2005 and it is currently pending before the House.  This legislation, if passed, would allow a plaintiff to use a conviction stemming from either a jury verdict or guilty plea to preclude a defendant from challenging their culpability in a subsequent civil action.  Convictions stemming from a no contest plea would not be affected by the legislation.  This legislation would only apply to offenses punishable by death or imprisonment of more than one year.

The mere fact a complaint alleges only negligence does not preclude an insurer from asserting an intentional acts exclusion.  In addition to reviewing the records from a criminal case, consider other factors like the insured’s life experience, the instrumentality causing harm, and whether they have engaged in similar behavior in the past.  In Martin, the court noted his extensive experience with firearms, as he was an avid hunter and taught his son to hunt.  An insured with a history of getting into fights is more likely to appreciate the consequences of a punch.  The courts are showing an increasing trend of upholding these types of exclusions, and are becoming more sensitive to the actual facts as opposed convenient (and in some cases coached) assertions of benign intent.