2014 Ohio 3772
Ohio Ct. App.2014Background
- Plaintiffs Matthew and Jeremy Wright sued Harry Larschied (dba Harry’s Hide A Way) claiming they were "attacked and struck by patrons" at the bar on June 27–28, 2012 and seeking damages for injuries. Complaint asserted negligence, violation of policy/practice/custom (deliberate indifference), and failure to supervise.
- Larschied was insured under a Commercial General Liability (CGL) policy issued by The Cincinnati Specialty Underwriters (CSU), which included an endorsement titled "Exclusion – Assault or Battery."
- CSU filed a declaratory-judgment action seeking a determination that it had no duty to defend or indemnify Larschied under the policy; the cases were consolidated and the parties filed cross summary-judgment materials.
- The assault-or-battery endorsement broadly excluded coverage for bodily injury "arising out of: (1) an actual or threatened assault or battery whether caused by or at the instigation or direction of any insured, their employees, patrons or any other person; (2) the failure of any insured ... to prevent or suppress assault or battery;" and (3) related negligent hiring/supervision/training retention allegations.
- The trial court granted CSU summary, declaratory judgment that CSU had no duty to defend or indemnify because the Wrights’ claims arose from assault/battery; Larschied appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CSU has a duty to defend under the CGL policy given the assault-or-battery exclusion | Wrights: claims arise from injuries caused by patrons (assaults), so exclusion applies; insurer (CSU) has no duty | Larschied: complaint alleges negligence and policy/practice claims (not assault/battery), so insurer must defend potential non-excluded theories | Court: No duty to defend. Allegations plainly seek recovery for bodily injury "arising out of" assault/battery, so the exclusion unambiguously bars coverage |
| Whether the policy is illusory because endorsements strip away meaningful coverage | Larschied: endorsements so narrow coverage that the policy provides no real benefit | CSU: policy still affords coverage for other accidents (e.g., slip-and-fall), so it is not illusory | Court: Not illusory. Policy still provides coverage for some bodily-injury/property-damage claims; endorsements do not eliminate all benefits |
Key Cases Cited
- Doe v. Shaffer, 90 Ohio St.3d 388 (standards for de novo review of summary judgment)
- Sharonville v. American Employers Ins. Co., 109 Ohio St.3d 186 (duty to defend arises when complaint alleges potentially covered claim)
- Ward v. United Foundries, Inc., 129 Ohio St.3d 292 (scope of allegations governs duty to defend)
- Motorists Mutual Ins. Co. v. Trainor, 33 Ohio St.2d 41 (insurer must defend when complaint alleges claim within coverage)
- Hybud Equipment Corp. v. Sphere Drake Ins. Co., 64 Ohio St.3d 657 (exclusions construed narrowly; apply only to what is clearly intended to be excluded)
- Penn Traffic Co. v. AIU Ins. Co., 99 Ohio St.3d 227 ("arising out of" requires a causal connection)