Allstate Insurance v. Campbell

examina- obtaining mental Thus, precluded should be state such an exam not authorized Assembly has the General tion in this case because relating or issues insanity defense Goff did not raise conducted. As to be to submit trial, ordered her improperly the trial court to stand competency her syndrome woman’s she asserted battered merely because mental examination I in the Accordingly, concur of self-defense. with her defense connection reverse, different reasons. but for Robert C. Jr., Prosecuting Attorney, and County Lawrence J.B. Collier Anderson, Prosecuting Attorney, appellee. Assistant Brown, Bluth, Richard Dortch, L.L.C.,

Kravitz, Paula William Brown & Parsons, for appellant. Haines, Defender, Assistant Kristopher A. Public

Timothy Young, Ohio Public Defender. Defender, for amicus curiae Ohio reversal urging Public Association Stevenson, for amicus curiae Ohio reversal urging Andrew Lawyers. Defense Criminal Fuhrmann, League Justice Ohio. reversal for amicus curiae urging

Mellissia Family University Capital for amicus curiae urging reversal McCaughan, Lorie Advocacy Clinic. Mizer, General, General, Benjamin Solicitor Attorney C. Cordray,

Richard Solicitor, curiae Kanai, affirmance for amicus Ohio urging Assistant Matthew A. Attorney General. Company al., Appellants, et

Allstate Insurance Campbell Appellees. al., et Campbell, Ins. Co. v. [Cite as Allstate 186, 2010-Ohio-6312.] Ohio St.3d (No. 2010.) September 2009-2358 Submitted 2010 Decided December

Lanzinger, J. In this arising from appeal declaratory-judgment a

{¶ action to 1} determine whether insurance coverage exists a involving injuries lawsuit stemming a misguided teenage prank, we are asked to the doctrine of inferred intent respect with to intentional-act exclusions. Because we decline to allow the intent to be inferred as a matter of law in cases in which the harm suffered cannot be deemed an act, inherent result of the intentional affirm the judgment of the court of part and remand to the trial court for proceedings consistent with opinion. Background

I. Case 18, 2005, On the evening November group teenage boys, including Dailyn Howard, Campbell, Manns, Jesse Corey lightweight Styrofoam stole a target deer typically used for shooting archery. The boys fastened a piece wood to it target the so that could Barnes, stand with upright. Along Carson then they just it placed below the crest of hill in on County Hardin County Road a hilly and curvy two-lane road with a speed limit hour. per miles They put on target the road after dark —between 9:00 and p.m. 9:30 a —in place which drivers would be unable to it they yards see until were 15 to 30 away. The boys then remained in the area so that could they watch the reactions of motorists. five placed About minutes boys target road, after the in the appellee Roby action, Robert drove Roby over hill. took evasive but ultimately vehicle, road, overturned, lost control of his left and came to and his Roby injuries both caused serious This accident nearby field. rest Zachariah. Dustin appellee passenger, County of Common Franklin Court suits in the and Zachariah1 filed Roby

3}{¶ among companies, their insurance parents, and boys, their against Pleas in the accident. others, damages for the sustained recovery seeking (“Allstate”), Southern American Company Insurance Allstate Appellants 4}{¶ (“Erie”), (“American Southern”), Exchange Erie Insurance Company Insurance declaratory judgment filed Company (“Grange”) Grange Casualty Mutual seeking a declaration of Common Pleas County Court in the Franklin actions insureds, juveniles and their indemnify no defend they are under Roby and Zachariah lawsuits. in the parents, their actions, trial court declaratory judgment consolidating After 5}{¶ summary judgment. Although companies’ motions for the insurance granted harm, their it inferred to cause boys directly that the intended not find court did that their conduct was law, finding on the part matter based intent as concluded that none trial court thus result in harm. The substantially certain to and that none of the coverage policies provided insurance of the pertinent bodily its insureds in indemnify pending the to defend or insurers had injury actions. reversed, genuine holding of Appeals Tenth Court The District harm to cause when boys fact whether the material exist over

issues of road, substantially certain whether was target they placed deer actions, scope fall within the and whether those actions result from their to Campbell, App. Ins. v. Franklin policies. Allstate Co. their individual insurance 09AP-318, 09AP-319, 09AP-307, 09AP-309, 09AP- 09AP-306, 09AP-308, Nos. ¶ 3823362, court of 09AP-321, 2009-Ohio-6055, 53. The 2009 WL in Ohio but noted strength of inferred intent uncertainty regarding the expressed of murder beyond doctrine the crimes expanded courts have that appellate ¶ Appeals District Court of stated Id. at 39. The Tenth and molestation. issue intentionally; disputed acted boys that the had dispute there was no act. Id. follow intentional they had intended harm or their was whether ¶ of fact over questions that because remained 50. The court concluded actions, not support did boys’ from the their conduct resulting of harm certainty ¶ of law. Id. at 53. injure a matter objective of an intent to as an inference of law proposition the second jurisdiction over granted discretionary Grange.2 of Allstate and insurer, third of law proposition as as the of each well mother, Piper, plaintiff in Zaehariah’s suit. E. also Katherine Zachariah’s correctly propositions Announcements reflected while our 2010 Case 2. We note that March jurisdiction, entry in contained a clerical granted this ease our March 2010 law over which we 2010-Ohio-799, v. N.E.2d 969. Campbell, Allstate Ins. Co. Ohio St.3d second of law states that the doctrine of inferred intent proposition insurers’ to an intentional-act exclusion an insurance is not limited to applied may undisputed cases of molestation or but where sexual homicide occur substantially facts that harm was certain to as a result of the establish insured’s conduct. Allstate and third states that Grange’s proposition law exclusionary objective their an to a policies’ language denotes as opposed subjective standard of an coverage, rendering intent irrele vant. Analysis Legal

II. A. The Language Agreements the Insurance “It is axiomatic an company is under no obligation its insured, insured, others harmed the actions of an unless the conduct alleged of insured falls within coverage policy.” Gearing 34, 36, Nationwide Ins. Co. 76 Ohio St.3d 665 N.E.2d 1115. “Coverage is provided if the conduct falls within scope coverage in the policy, defined and not within thereto.” exception policies Homeowners’ insurance typically provide for harm insureds; caused

accidentally by their are torts excluded. Most exclusion, contain intentional-act which states that the insurance company will not be for harm liable caused intentionally by the insured. But when there is no of evidence direct intent to harm and cause the insured denies harm, the intent to cause any to cause will be inferred as a of matter law in certain instances. syllabus. one of paragraph Although question the central is whether intent to harm should be

{¶ 10} a inferred as matter of law case, under the of circumstances finally by is determined policy language. matter, As preliminary we recognize policy by each issued the four insurers contains similar language defining an “occurrence” as an accident and for providing coverage insurer, bodily injury arising however, from an Each occurrence. uses unique exclusionary language. error, indicating accepted appeal Proposition of American on of Southern Law I. I, Proposition jurisdiction,

American Southern has both of accept briefed Law for which we did not II, Proposition appeal and of Law which accepting for we did. We correct the clerical error II, Proposition pro of American Southern tunc nunc on of Law and not we will address Proposition American Southern’s of Law I. for intentional act exclusionary language

1. Allstate’s Campbell parents and the Dailyn a parent to of policies Allstate issued 11} {¶ policies provides: the Allstate portion of Howard.3 The exclusion Jesse * * *: “Losses We Do Not Cover {¶ 12} bodily property damage by, injury or intended any “1. do not cover 13}

{¶ criminal to from the intentional or may reasonably or person. even if: of, applies insured This exclusion any omissions acts or “a) his or her person capacity govern lacks to insured the mental such {¶ 14} conduct; “b) damage kind or bodily injury property or a different such 15}

{¶ expected; or reasonably than intended or degree “c) property damage bodily injury or is sustained different such

{¶ 16} (Boldface sic.) reasonably expected.” person than or language exclusionary 2. American Southern’s Dailyn Campbell’s issued a to one of American Southern also 17} {¶ provides: The the American Southern parents. portion exclusion Apply Coverages Liability L “1. That Exclusions {¶ 18} M— injury’ damage’ ‘bodily ‘property does not or Payment Coverage Medical directly indirectly from: which results “ * * * 19}

{¶ “j. an act at the direction of any an intentional act of ‘insured’ or done {¶ 20} ” (Boldface sic.) any ‘insured.’ exclusionary for intentional act

3. Erie’s Corey parents Manns parent Erie issued policies provides: Erie portion Barnes.4 exclusion Carson WE NOT COVER—EXCLUSIONS “WHAT DO “ * * * * * *: Bodily Liability Injury Coverage “We do cover under personal Bodily injury, property damage “1. anyone if: protect even by we or or is different than degree, quality damage “a. the kind {¶ 26} intended; or or expected what was by language policy

3. issued Allstate is identical. The relevant of each language policy 4. issued Erie is identical. The relevant of each

191 entity, personal “b. a different real or sustained the person, property {¶ 27} (Boldface sic.) than damage emphasis was intended.” exclusionary act Grange’s to a parent Corey Grange issued a Manns. The Grange {¶ 28} provides: “EXCLUSIONS

{¶ 29} “ * * *

{¶ 30} Bodily injury damage property “6. by any or intended (Boldface sic.) person.”

insured B. the Acceptance Doctrine Intent of Inferred argue that the rule of appellant expand insurers we should inferred intent applies so that it to the in this case. that They suggest circumstances apply “substantially the certain” test so that intent to harm bewill inferred as a matter of law whenever an substantially insured’s certain cause harm. The appellees argue that application inferred should remain limited and case, that using “substantially instead of certain” test in the trial court should the disputed resolve matter of the boys’ any intent like other issue of fact. Before we discuss whether the rule inferred intent should be extended to all torts where there is a certainty substantial of harm or limit its application, explore we must the line of cases have accepted doctrine. already recognized We have rule of intent applies two specific instances: sexual molestation minor of a See Gearing, murder. 36-38, 76 1115; Ohio St.3d at 665 N.E.2d (1987), Risk Ins. v. Gill Co. Preferred 108, 114-115, Ohio St.3d OBR 507 N.E.2d 1118. ask Appellants us to extend us, the doctrine to in cases like the one currently before specifically relying upon analysis set forth in concurring Justice Cook’s opinion Buckeye Union Ins. Co. v. England New Ins. Co. 288- concurrence, 495. In her Cook argued Justice that where direct exist, intent does not intent is not conclusive on the issue, and courts should instead infer intent to harm where the insured’s action creates substantial harm. certainty of acknowledge that the lack of majority opinion Buckeye Union generated has uncertainty scope as to the of the doctrine of inferred intent. On hand, one appellees argue plurality Justice Pfeifer’s opinion Buckeye Union—which limits “intentionally injurious the doctrine acts that are definition,” id. at represents correct view the Ohio. doctrine On the hand, other appellants argue inferred intent in a should be wider cases, variety Union Buckeye concurring opinion suggests. Recogniz- 192 law, we first our decisions area of the review clarity for the need

ing to the doctrine. relevant Risk v. Gill

1. Ins. Co. Preferred to in Ohio can be traced back of inferred intent The roots of the doctrine 36} {¶ Gill, In considered Gill, 1118. we 30 OBR N.E.2d 30 Ohio St.3d claims indemnify against had a to defend or company duty whether insurance an insured who infliction of emotional distress negligent death and wrongful child. insurance murder of a aggravated convicted of had been injury damage or coverage “bodily property for language excluding included ” at 113. that the Id. We held is or intended insured.’ expected ‘which underlying indemnify to or in the company duty had no defend insurance indisputably act “was intentional claim because wrongful-death company also that the coverage.” at 115. We concluded insurance outside Id. distress, indemnify in the claim for underlying no to defend or emotional had the emotional “had its leading that the behavior of the insured to distress noting murder) (i.e., and is so clearly in a intentional course conduct origin to the purpose leading entwined in time and with the intentional acts inextricably itself, murder, coverage.” that it be said be within fairly and the murder cannot Id.

2. Ins. Co. v. Swanson Physicians Ohio Ohio Swanson Physicians We revisited Gill Ins. Co. 189, 569 906. considered whether the insurance Swanson Ohio insureds, its whose son had indemnify had to defend and companies obligation teenagers BB 70 to 100 feet. The gun approximately fired a towards some from Injury not cover policy said it “will Personal Swansons’ In decision Damage intentionally.” explaining caused Id. at 191. our Property Gill, noted, that it the resultant actually proposition we “Gill stands coverage.” for the to apply deny which must be intended exclusion sic.) Id. (Emphasis of the the insurers were holding court reversing held, insureds, indemnify we “In order to avoid obligated defend and its injuries, or intentional expected on the basis of an exclusion for Id. at expected must demonstrate that the itself was intended.”

insurer First, determined upon This was based two rationales. we syllabus. holding was in of an that the terms intentional plain language Second, recognized at 193. not an intentional or act. Id. injury, acts. many injuries result unintended Gearing v. Ins. Nationwide Co. adopting can a form of implicitly While Gill and Swanson be read intent, we first the doctrine in explicitly recognized 1115, syllabus. Gearing St.3d 665 N.E.2d one of the involved a paragraph which an that declaratory judgment sought action in insured declaration arising was to him in a civil from company obligated insurance defend suit his alleged sexual molestation of three at 34-35. affirmed the girls. Id. court appeals, holding company of insurance owed no duty to the insured. at 41. defend Id. In Gearing, bodily the insurance had an exclusion for provided

injury or is property damage “expected the insured.” Id. at 36. We examined cases from other states in which the inferred doctrine of intent molestation, was applied to cases from acts of sexual that “in arising concluding those an act substantially cases where intentional is certain to cause injury, subjective intent, intent, determination lack of insured’s of is not Thus, conclusive of the issue of Id. at “an coverage.” protestations 39. that he ‘didn’t mean to hurt are anyone’ only relevant where the intentional act at issue is not substantially certain to result in injury.” Swanson, stated, We noted that this conclusion is central where we “ ‘ injury which “[Resulting ensues from the volitional act of an insured is still an ‘accident’ within the of an meaning policy if insured insurance does not specifically to cause resulting substantially intend or is not certain that ’ ” (Emphasis 39-40, such harm will occur.” Gearing.) added in Id. at quoting Swanson, St.3d at 569 N.E.2d Mut. Fire quoting Quincy Ins. 81, 84, Abernathy Co. v. 393 Mass. 469 N.E.2d 797. After that the determining arguments support of inferred intent were decisions,

persuasive and the rule was consistent adopted with earlier we it: accept premises upon based, “We which the inferred intent rule is and hold that intent to harm is properly inferred as a matter of law from deliberate acts of sexual molestation of a minor.” 76 St.3d at Ohio 1115. In concluded, applying holding, this we of “Incidents intentional acts of sexual molestation of a minor do not constitute ‘occurrences’ for purposes determining liability coverage, insurance intent to harm as inconsistent with insurable incident matter of from properly law deliberate acts of sexual molestation minor.” syllabus. of a Id. at one of the paragraph in Gearing Our decision nevertheless certain unresolved. left issues adopting the doctrine inferred intent in the context of sexual-molestation cases, we did not address the intent inferred in question may whether cases Furthermore, than involving acts other sexual molestation or murder. as a rule, adoption this limited did not enunciate a clear standard for an inference of gives rise to whether a certain determining to apply courts intent. England Ins. Ins. Co. v. New Co. Buckeye Union beyond intent to cases those of the doctrine of inferred application Co., Ins. Buckeye molestation first arose Union

involving murder sexual (Cook, A federal 288-289, concurring). 720 N.E.2d 495 J. Ohio Buckeye Union Insurance underlying court had in an case district ruled injure refusing with to settle an acted in faith and had bad Company England intentional act New Insurance precluded claim and that this Union, insured, Buckeye professional its under reimbursing Company Court of certified Appeals Id. at 281-282. The Sixth Circuit liability policy. court, Buckeye the first of which asked whether Union’s questions three tort that is type in the case constituted the underlying actions at 282. answered that “no.” Id. question under Ohio law. Id. uninsurable a He noted that plurality In a Justice Pfeifer made distinction. opinion, acts, wrongful and “insureds were found to have committed Gearing, both Gill at injurious by Buckeye Id. Union’s intentionally acts that are definition.” intentionally injurious an act to an insurance claim was not such refusing of settle act, circumstances, insurers may Pfeifer because in certain explained, Justice to Id. He that it would accordingly refuse settle claims. concluded be properly to upon to extend doctrine of inferred intent torts that were based a improper the an insurance claim. bad-faith refusal settle argued that Disagreeing reasoning, with Justice Pfeifer’s Justice Cook 46}

{¶ 1115, 34, N.E.2d means Gearing, provided 76 Ohio St.3d 665 effective Id. variety of torts. at analyzing regarding issues wide intentional (Cook, J., Justice criticized “acts that concurring). limiting 289-290 Cook are molestation, injurious and sexual intentionally arguing definition” murder clarify types other of actions categorization might that this does what reveal proper at the test would be intent. Id. 289-290. She concluded the objective Gearing. test set forth in at 290-291. A certainty” “substantial however, of that this court has limited the close examination reveals of inferred intent. scope

C. Intent Application Doctrine of of Inferred In that the of inferred “is based on the Gearing, we noted rule intent thereby of fact of premise that acts sexual molestation and the caused are ” 1115, 76 665 ‘virtually inseparable.’ Gearing, quoting Ohio St.3d (1990), 393, 400, School, Day Acres Inc. 408 Mass. Worcester Ins. Co. Fells “ words, molestation, in a the act In other ease of sexual ‘to do is N.E.2d 958. * * * unquestion- to do the harm which is its since necessarily consequence; ” sic.) intended, Id., act is so ably (Ellipsis quoting also is the harm.’ Allstate Ins. Co. v. Mugavero 79 N.Y.2d 581 N.Y.S.2d N.E.2d 365. It is clear that as to an intentional-act applied policy’s

exclusion, only the doctrine inferred intent in which applies cases intrinsically insured’s intentional act and the harm caused are tied so the act necessarily scope has resulted the harm. of the doctrine is Limiting only because the rule is in a appropriate range needed narrow cases—those testimony the insured’s on harmful intent is irrelevant because the Thus, act could not have done harm. causing been without damage may only to cause be inferred when that harm intrinsically i.e., tied the act of action necessitates the insured — harm. The inferred arising doctrine of intent does not to cases from acts murder or sexual molestation. For intent could example, hypothetically cases, or rape certain felonious-assault where the intentional acts harm; however, cause necessarily applying courts should be careful to avoid doctrine in cases necessarily where the insured’s intentional act will not result in the harm caused that act. Gearing provide examples Gill clear of cases in which the doctrine Gill,

applies. In harm was inherent in the act of Harm defendant’s murder. was inherent in acts of similarly sexual molestation in In Gearing. each these cases, the insured not claim he could was unaware that harm would from cases, his actions. The doctrine inferred intent thus in those the insureds’ actions were coverage. excluded from The same cannot be said about the actions Buckeye Swanson and Swanson, Union. BB firing gun relatively long distance Likewise, would in necessarily not harm. company’s insurance bad- claim, Union, faith refusal to settle a as in Buckeye necessarily does not result in compensable cases, In both damages. necessary a factual was inquiry deter- mine whether the actions coverage. insureds’ were excluded from present The is case similar to Buckeye Swanson and Union. We cannot

{¶ 51} say as a matter of that law the act of placing target deer a road the Indeed, manner here necessarily done results in harm. other passed by cars had the target. avoided While the act boys’ irresponsible was ill-conceived and injuries, and resulted in serious the action and the harm are intrinsically not tied way they the are in murder and sexual We accordingly molestation. conclude that the may while doctrine of inferred intent to actions other than murder molestation, or sexual it does not apply in case.

D. “Substantially Test Certain” Appellants asked “substantially have us to use the certain” test—which {¶ Buckeye Justice Cook advocated in and which was Union discussed Swanson applies to whether intentional-act exclusion deciding Gearing —when the rule inferred adopting assault. Before cases than murder or sexual other of Massachu- Ohio, had from the Judicial Court Supreme intent quoted setts, that is or intended insured: an act not which characterizes “ act insured is still an ‘the which ensues from the volitional of an resulting if insured does not meaning “accident” within substantially is not certain that resulting intend to harm or specifically cause ” Swanson, 906, at quoting occur.’ 569 N.E.2d such harm will St.3d Mass, Swanson, we that the at 469 N.E.2d 797. In held insurer Quincy, at that itself or intended.” Id. 193. must “the was demonstrate quoted “substantially also certain” when We Swanson’s consistent with adoption how of the doctrine of inferred was explaining 39-40, at those Gearing, 76 665 N.E.2d 1115. cases precedent. “[I]n Ohio substantially injury, where to cause determination of an intentional is certain intent, intent, lack of conclusive of subjective an insured’s is not Rather, mean to coverage. protestations issue of an insured’s he ‘didn’t hurt anyone’ only substantially relevant act at are where intentional issue is Gearing injury.” Significantly, certain to result Id. nowhere does state “substantially test used to determine whether to certain” should be infer considering intent as a matter of law in other intentional torts. argued Gearing two-part analysis. Justice Cook outlined Buck- Union, (Cook, J.,

eye concurring). 87 Ohio St.3d at 720 N.E.2d 495 First is a whether intended the Id. at 288. If directly injury. determination the insured exists, no direct intention then the court determines whether the insured’s act flawed, injury. That substantially approach was certain to cause however. Gearing “substantial- outlining two-part analysis, Instead treats the ly newly certain” within rule of being adopted test subsumed inferred intent.5 never Gearing substantially addressed whether the action was Instead, certain it kai"m to result harm. concluded “intent to inconsistent matter properly with an insurable incident is as a of law from deliberate added.) Gearing, acts of of a minor.” (Emphasis sexual molestation Ohio St.3d at 665 N.E.2d 1115. clarify now that the doctrine of inferred intent cases applies intrinsically

in which the insured’s act and the harm caused are tied so Buckeye opinion Union in Penn Appellants argue adopted Co. 5. that we Justice Cook’s Traffic Co., Traffic, 227, 2003-Ohio-3373, however, AIU Ins. Penn Ohio St.3d 790 N.E.2d torts, here, liability entirely separate inapposite employer itas concerned for intentional an area of See Kaminski v. undergone change opinion significant that law that has since was issued. Co., 250, 2010-Ohio-1027, Metal & Wire Prods. 927 N.E.2d 1066. 125 Ohio St.3d that the act necessarily has resulted the harm. Because this test a provides clearer method for intent to harm a determining when should be inferred as law, matter of we hold that courts are to examine whether the act has necessarily resulted in the harm —rather than whether the act is substantially certain to in harm. result

E. Objective or Subjective Nature Intent of Inferred law, In their second propositions of Allstate and that Grange argue exclusionary language used their an policies requires objective test for whether must they provide coverage. Because we determine that under the circum- case, stances of this may law, intent to harm not be inferred as matter of affirm court of on this point and conclude that the trial court must conduct a factual inquiry on remand to determine whether a indemnify Allstate, defend and arises from the Grange, policies. and Erie Allstate, The Grange, and Erie polices each contain lan exclusionary guage stating the insurers will not harm expected cover by insured.6 Because we do not infer the insureds’ intent to harm aas matter of law boys deny that harm was intended or expected, whether the was expected or reasonably expected is an issue to be determined the trier of fact. Swanson, 193-194, See 58 Ohio St.3d at 569 N.E.2d 906. An insurer’s motion for summary judgment may be properly granted

when may be inferred one, as matter of law. In cases such as this where harm, insured’s act does not necessarily result in we cannot infer an intent to cause as a matter of law. We therefore hold that summary judgment is proper. declaratory this, action like of fact trier on remand must weigh facts evidence to determine whether the boys intended or expected and, consequently, whether the agreements provide coverage this case.

F. American Policy’s Southern Exclusionary Language policy issued American exclusionary Southern contains language Allstate, Erie, differs from that found Grange policies, as well as Gill, Swanson, at issue in and Gearing. American Southern’s “ states that coverage does not apply ‘bodily injury’ ‘property damage’ ” * * * results directly indirectly an intentional act of any ‘insured.’ The argues “may reasonably policy’s language precluding 6. Allstate damage that its be * * * “any person” from the intentional acts” of insured differentiates its from the sic.) triggers objective others in a (Emphasis manner test. We conclude that as interpreted of Swanson light “reasonably” Allstate’s inclusion of the word into its exclusionary here, analysis does not alter our because the issue of whether the harm was reasonably intended or question could to result from the an intentional act is a of fact. that declares extremely in an broad manner is written policy American Southern resulting any from intentional is not liable for that American Southern language in to the of stands stark contrast This by done insured. case, coverage at in this which exclude issue the other the insured. by harm that is or intended expected for harm coverage exclusionary language excluding By using broad or expected the harm is regardless of whether by any

caused intentional act— in its a manner policy Southern has worded by intended the insured —American Gill, Swanson, Gearing. in and analysis of found that frees it from the line harm that was cases, coverage excluded for three each insurance those Gill, the insured. or or intended” intentionally” “expected “caused Swanson, 1118; at 507 N.E.2d 58 Ohio St.3d at 30 OBR cases 906; at 665 N.E.2d 1115. While those 76 Ohio St.3d American injury, Southern’s contained exclusions for different and unam- significantly an intentional act. Given the policy addresses that as a we must conclude biguous language policy, of the American Southern law, indemnify Dailyn no to defend or duty American Southern is under matter from his intentional acts family any liability resulting or his for Campbell case. the events issue participating

III. Conclusion exclu- policy’s that as to an insurance intentional-act We hold sion, intent is not limited to cases of sexual molestation the doctrine inferred Nevertheless, cases applies homicide. the doctrine that act intrinsi- intentional act and the harm caused are which the insured’s act. the doctrine cally necessarily so that the harm results from the Because tied case, circumstances of this we further of inferred intent does not Allstate, Erie, the trier of fact must Grange policies, hold that under the and boys a factual on remand to determine whether the inquiry conduct actions. thus affirm the harm that resulted from their intentional granting trial court erred in the motions appeals’ judgment the court of Allstate, Erie, Grange. and summary judgment it applies of the court of We reverse the trial court that there is no finding American Southern and reinstate the of the and that American Southern is under the American Southern his indemnify Dailyn Campbell no to defend or and accordingly under parent. affirmed in

Judgment part part, and reversed in and cause remanded. O’Connor, J., concurs. C.J., J., syllabus concur in part

Brown, Pfeifer, judgment. JJ.,

Lundberg concur in paragraph one Stratton, Cupp, O’Donnell, syllabus and in part judgment. J., concurring part in dissenting part. and in

Pfeifer, I concur in majority opinion except for its reversal {¶ 64} of the court of it applies as to I American Southern. would hold exclusionary in language the American Southern is not materially different from the in the other policies and would therefore affirm the decision below. The American Southern policy reads: “Liability Payment and Medical Coverage does to ‘bodily * * *

injury’ ‘property damage’ which directly results or indirectly from ” any act of ‘insured’ or an act done the direction of any ‘insured.’ The exclusion cannot be as broad as envisioned the majority. Most accidents are the result of intentional acts-—-it is the result that is If unintended. a homeowner intentionally leaves his in yard rake with the intention of to returning his gardening after a short water break and a neighbor steps on the rake and punctures nose, his foot and breaks his Here, is there no coverage? as in the policies, other the exclusion applies to instances where the insured intends Otherwise, cause harm. there would no any for resulted from any waking, nonreflexive act of an insured.

Brown, C.J., concurs in the foregoing opinion.

O’Donnell, J., concurring part dissenting and part. While I agree with the majority that intent, doctrine as applied to policy’s exclusion, intentional-act is not limited to cases of sexual homicide, molestation or I dissent from majority’s holding that the “applies doctrine cases in which the insured’s intentional act and caused are intrinsically tied so that the act necessarily has resulted the harm.” Background

Factual and History Procedural On the evening of November a group of high school teenagers, Dailyn Manns, Campbell, Corey Lowe, Howard, Josh Jesse Taylor and Rogers, took an artificial deer—the kind bow hunters use target practice a —from property Campbell’s near They house, home. brought it to Lowe’s they where spray-painted profanity and the words “hit me” on it and fashioned legs wooden friends, Joey Ramge, and Barnes Carson Two other upright. it would stand so Rogers, all except and then finished they painting, house as at Lowe’s arrived road 144, a two-lane ill, 55-m.p.h. Road County drove who had become stood the deer p.m., Campbell between 9 and 9:30 County. Sometime Hardin it could grade crest of a so just over the lane of C.R. in the eastbound upright it. yards 15 to 30 they until came within motorists approaching not be seen reactions 144 to watch the along forth C.R. Thereafter, back and the teens drove minutes after Within five seven the deer. they encountered of the drivers a 2005 Roby, operating roadway, Robert appellee the deer in the placed Campbell vehicle, lost control of his Neon, the deer but hitting to avoid Dodge swerved Roby appellee and into a cornfield. Both road, rolled his car off the drove crash, Zachariah, during thrown from the vehicle were passenger, his Dustin injuries, physical injuries: Roby permanent sustained serious and both sustained sternum, ribs, bone, collapsed collar fractures of his Zachariah suffered heart, brain, body. his Each filed parts and other to his lung, and bruises Pleas. County Franklin Court Common action personal-injury Company, Southern Insurance Company, Insurance American Allstate Casualty Company sought all Grange and Mutual Exchange, Erie Insurance indemnify or their duty had no to defend declaratory judgment they actions, that the insureds, asserting in these parents, and their teenagers of the home- meaning an “occurrence” within the injuries not result from did coverage pursuant therefore excluded policies owners’ and were issued the four insurance policies exclusions. The policies’ intentional-act bodily injury arising for language providing coverage similar carriers contained Allstate, “occurrence,” all as an accident. The defined from an injury property damage or Erie, coverage bodily exclude for Grange policies and to result from an intentional may reasonably “expected” by,” “intended or or bodily injury act, excludes while the American Southern any an act of indirectly from” “intentional resulting “directly property damage ” ‘insured.’ roadway act of the deer placing trial court found that the that the doctrine of harm and therefore ruled certainty in a substantial resulted Consequently, the circumstances of the case. applied inferred intent damage as matter property intent to cause trial court inferred the carriers, they concluding in favor of the summary judgment granted law and actions. indemnify pending their insureds no to defend or had summary judgment decision, grant reversed the the court split certainty regarding of fact remained questions it determined that because actions, it not infer the and because would teenagers’ from the resulting Campbell, v. Franklin of law. Allstate Ins. Co. to cause as a matter intent 09AP-306, 09AP-307, 09AP-308, 09AP-309, 09AP-318, 09AP-319, App. Nos. ¶ 09AP-320, 09AP-321, 2009-Ohio-6055, and 2009 WL 57-58. The carriers appealed, accepted jurisdiction we to examine two one, issues: whether the doctrine of inferred intent as to an intentional- exclusion an insurance policy is limited to cases of sexual molestation or homicide, two, whether Allstate’s and Grange’s policies’ exclusionary lan- guage objective denotes an coverage, subjec- standard of an rendering insured’s tive intent irrelevant. Allstate Campbell, Ins. Co. Ohio St.3d 2010- Ohio-799,922 N.E.2d 969.

Doctrine Inferred Intent In Gearing v. Nationwide Ins. Co. 1115, this court examined an whether insurance is company obligated to defend an indemnify insured in civil litigation out of arising the insured’s sexual molestation of three minors. recognized There we the doctrine of inferred intent and set forth a test for its application, that “in stating those cases where intentional act is substantially certain to cause injury, determination of an intent, insured’s subjective intent, or lack of is not conclusive as to the Rather, issue of coverage. protestations that he ‘didn’t mean to hurt anyone’ are relevant where the intentional act at issue is not substantially certain to in injury.” Id. at 39. Applying the “substantial certainty” test in Gearing, determined to harm properly inferred as a matter of law because the act of

molestation is so inherently injurious that it cannot be performed without causing the resulting injury. 40. Because Gearing’s contained an exclusion for bodily injury or property damage “expected insured,” we held that the insurance company obligated was not him in defend the civil suit out arising of that conduct. Id. at 36. later, years Three Buckeye Union Ins. England Co. New Ins. Co.

(1999), 280, 495, 87 Ohio St.3d 720 N.E.2d presented the question of whether intent could be inferred as a matter of law from an insurance company’s bad-faith refusal to settle claim. The court noted that it had inferred intent as a matter of law in only cases, two (1987), 108, Risk Ins. Co. v. Gill 30 Ohio St.3d Preferred 424, 1118, 30 OBR 507 N.E.2d and Gearing, cases, and that in both the insureds were found to have committed wrongful (aggravated acts murder and sexual molestation, respectively), which injurious are “intentionally by definition.” Union, Buckeye 284, at 720 N.E.2d 495. Concluding settling that an insurance claim is an act of contract interpretation and that a may settlement be properly circumstances, refused in certain the court declined to infer intent to case, injure in the that it holding would “not place failure to settle an insurance claim on plane” molestation, same the[] murder and which enjoy “do not However, in concurring in an opinion Id. sometime rectitude.” similar certainty” the “substantial by failing that explained only, Justice Cook standard by overlooking law test, analysis misconstrued Ohio majority’s (Cook, J., Cook further concurring). Justice Id. at 288 Gearing. forth in set departure as the Gearing, not to “ought depart that the court cautioned an issue,” “imposes and instead of this clarify analysis nothing does inferred intent test, category an undefined coupled with inadequate at acts.” Id. 291-292. Certainty Test Regarding the Substantial

Confusion retreat from the substan- view, today continues the my majority courts to infer intent as by directing in Gearing test set forth tial-certainty act and the harm in the insured’s intentional “only of law cases which matter harm.” necessarily act has resulted intrinsically tied so that the caused are Gearing that “did by stating new test majority justifies adoption its of this involving inferred in cases acts may of whether intent question not address the result, that as a close “[a] molestation or murder” and other than sexual * * * scope that court has limited the Gearing reveals examination intent.” artificial Gearing and the disagree reading I with this narrow Gearing recognized on the doctrine of inferred intent. limitation 39, decisions,” at in our 76 Ohio St.3d substantial-certainty past test “is inherent (1991), Ins. Co. v. Swanson including Physicians N.E.2d our decision shooting where we held the intentional 58 Ohio St.3d approved have resulted in the necessarily a BB would not gun “ from the volitional act of an insured ‘resulting injury which ensues premise if the insured does meaning is still an “accident” within the substantially harm or is not certain specifically resulting intend to cause the ” added.) Quincy (Emphasis quoting harm will occur.’ such Thus, 81, 84 469 N.E.2d 797. Abernathy Mut. Fire Ins. Co. v. 393 Mass. in circum- that the test could be contemplated the court as to speculation specific The court’s lack of beyond stances molestation. of intent as a matter of permit in which the test would inference circumstances role of the court to decide those issues keeping proper law is in with the case, presented by to the facts it. should be confined Opinions before therefore, made from the manner no inference can or should be expand court’s intent to limit or Gearing respect court wrote with to the of the doctrine of inferred intent. scope a doctrine known as conformity to our with precedent We adhere decided, and not to by things non movere—-“to stand quieta

stare decisis et Ed.2009) (9th 1537. Our Dictionary Black’s Law points.” disturb settled See prior decisions have intent, established the law of the doctrine of inferred and the courts below it. body We have a authority case designed deal with circumstances arising from those who in engage conduct that is so inherently injurious that it cannot performed without causing resulting injury. Intent to injure properly inferred as a matter of law from the act of placing obstruction out of the line of sight a motorist below the crest of a grade at in night, the middle of a lane of eastbound traffic on a m.p.h. highway, because that act is substantially certain Here, to cause injury. the teens anticipated injury because they repeatedly drove past deer to witness the reactions of oncoming motorists as they deer, encountered the and their deposition testimony is that they witnessed Roby past them, drive they witnessed the aftermath of the crash. These actions more than suggest that they knew that injury would occur; they anticipated it and waited for it. Our case law applies to these circumstances because these teens knew would result from their conduct. Because their deliberate actions were in designed injury substantially occur, certain to to Roby and Zachariah accident, was not an and thus not an occurrence as defined in result, these policies. As a exclusions each of these should to the facts of these cases. Accordingly, the insurance companies should have no duty to defend or indemnify their insured injuries because these act, resulted from an intentional and the policies exclude coverage Thus, for intentional acts. I would reverse the judg- ment of the Tenth District Court of Appeals and judgment reinstate the trial court. today Because the majority departs from and confuses our estab- lished case law on the doctrine of inferred intent and our holding Gearing instead adopts its own preferred test for the application of the inferred-intent rule, I respectfully dissent. J.,

Lundberg concurs the foregoing opinion. Stratton, J., concurring part dissenting part. Cupp, I concur in paragraph holds, one the syllabus, “As applied to an policy’s exclusion, intentional-act doctrine inferred intent is not limited to cases of sexual molestation or homicide.” I also concur in part court’s judgment insofar as it affirms appeals’ the court of judgment that the trial court in granting erred Erie’s and Grange’s motions for summary judgment. I agree further with the court that there is no coverage under the American Southern policy and that American Southern is therefore under no duty to defend or indemnify Dailyn Campbell reason, and his parent. For that I concur in part in the court’s judgment insofar as it reverses the court of appeals as it applies to American Southern. However, coverage I there is no majority, unlike conclude that In to the other contrast Company’s policy.

under Allstate Insurance harm that is case, expected from coverage which exclude for bodily that insured, excludes Allstate includes to result from the reasonably expected be damage may “which property As the majority acts of’ insured. intentional or criminal or omissions that excludes policy, language to the Southern regard with American concludes act” of the that results from “an intentional bodily injury property damage qualifier addition policy’s insured is broad. Allstate act, my “reasonably” to result from the intentional expected must have been view, from the warrant treatment the Allstate does not different car crash that occurred this case was policy. American While the Southern to dispute manner it is hard not “certain” to occur—at least did—it from the “intentional “reasonably” that such an event could to result * * * case, a than teenagers objective subjective in this more acts” view, there issue of material fact with my genuine regard is no standard. * * * “reasonably objective Allstate’s because under the policy, issue under boys’ standard in that policy, professed to result” anyone Accordingly, not to harm is immaterial. I also would reverse the judgment regard of the court of with Allstate and reinstate the trial court’s in favor of Allstate. I would hold Allstate is summary Dailyn Campbell’s parents under to defend or and the indemnify parent no of Jesse Howard. James,

Crabbe, L.L.P., Daniel Hurley, appellant Browne & and J. for Allstate Company. Insurance Willard, for

Mazza & Associates and Robert H. American Southern appellant Company. Insurance Co., Caborn, L.P.A., A. D. Owsley,

Caborn & Butauski David and Elizabeth for appellant Erie Insurance Exchange. Grubler,

Gary appellant Grange Casualty Company. L. for Mutual Co., Karr, L.P.A., Culley, Karr for appellee & Sherman Keith M. David W. Robert Roby J. Jr. Co., L.P.A., Scott,

Paul Dustin S. appellees 0. Scott and Paul 0. Zachariah E. Piper. Katherine Masch, L.P.A., Sullivan, Co., D. urging Brian Clifford C. Reminger Attorneys. curiae of Civil Trial reversal for amicus Ohio Association Paul Co., L.P.A., W. Flowers Flowers, and Paul W. urging affirmance for amicus curiae Ohio Association for Justice.

Case Details

Case Name: Allstate Insurance v. Campbell

Court Name: Ohio Supreme Court

Date Published: Dec 30, 2010

Citation: 942 N.E.2d 1090

Docket Number: 2009-2358

Court Abbreviation: Ohio