CHLOE CROW, ET AL., PLAINTIFFS-APPELLEES, -and- UNITED OHIO INSURANCE COMPANY, PLAINTIFF-APPELLANT, v. JOSHUA D. DOOLEY, ET AL., DEFENDANTS-APPELLEES.
CASE NO. 1-11-59
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
May 29, 2012
[Cite as Crow v. Dooley, 2012-Ohio-2565.]
Appeal from Allen County Common Pleas Court
Trial Court No. CV20100627
Judgment Reversed
Date of Decision:
APPEARANCES:
John P. Petro and Susan S.R. Petro for Appellant, United Ohio Insurance Company
David W. Marquis for Appellees, Chloe Crowe, et al.
F. Stephen Chamberlain and Van P. Andres for Appellee, Carolyn Sue Dooley
Joshua D. Dooley, Appellee
{1} Intervening Plaintiff-Appellant, United Ohio Insurance Company (UOIC) appeals the judgment of the Court of Common Pleas of Allen County denying its motion for summary judgment. On appeal, UOIC argues that the trial court erred by holding that the negligent actions of Defendant, Carolyn Dooley, were covered by her insurance policy with UOIC due to the application of Safeco Ins. Co. of Am. v. White, 122 Ohio St.3d 562, 2009-Ohio-3718. Based on the following, we reverse the judgment of the trial court.
{2} The instant action arose out of the following series of events, not disputed on appeal. In October 2008, Plaintiff Chloe Crow (Chloe), a child, was under the care of Defendant Carolyn Dooley (Carolyn) as part of Carolyn‘s home daycare operations, when Carolyn‘s adult son, Defendant Joshua Dooley (Joshua), raped and photographed Chloe. Joshua was indicted on two counts of rape of a child and two counts of pandering obscenity. Joshua pled guilty to two counts of rape and was sentenced to fifty years to life.
{3} In June 2010, Chloe, her parents, and siblings (collectively, the Plaintiffs) filed the instant civil action, seeking compensatory and punitive damages, against Joshua and Carolyn. Specifically, the Plaintiffs sought redress for Joshua‘s intentional actions of rape, sexual battery, sexual assault, and sexual molestation of Chloe and for taking photographs of her while she was in a state of
{4} In August 2010, the trial court granted UOIC‘s motion to intervene. UOIC alleged in its complaint for declaratory judgment that it had no duty to defend or indemnify Joshua and/or Carolyn as they are either not covered or are excluded from coverage pursuant to Carolyn‘s homeowner‘s insurance policy with UOIC. Carolyn filed an answer arguing that UOIC does have a duty to defend and indemnify her. Joshua failed to file an answer. UOIC filed a motion for summary judgment and a memorandum in support arguing that it owes no duty to defend or indemnify Carolyn and/or Joshua as Carolyn‘s insurance policy with UOIC (the Policy) does not cover emotional injury or alleged physical injury arising from emotional distress, intentional acts, non-accidental behavior, expected or intended injuries, and/or injury arising out of sexual molestation. The Plaintiffs and Carolyn filed their respective memoranda in contra arguing that genuine issues of material fact existed and requesting the trial court to deny UOIC‘s motion for summary judgment.
Assignment of Error No. I
THE TRIAL COURT ERRED IN CONCLUDING THAT UNDER SAFECO INS. CO. OF AM. V. WHITE THE INSURANCE POLICY EXCLUSION FOR [B]ODILY INJURY’ OR ‘PROPERTY DAMAGE’ ARISING OUT OF SEXUAL MOLESTATION . . . DOES NOT PRECLUDE COVERAGE FOR AN ALLEGEDLY NEGLIGENT INSURED AND, THUS, THAT POLICY NO. SHO274728 COVERS DEFENDANT CAROLYN SUE DOOLEY FOR THE CLAIMS MADE AGAINST HER IN THE ABOVE CAPTIONED ACTION.
{6} In its sole assignment of error, UOIC alleges that the trial court erroneously concluded that UOIC must extend coverage to Carolyn under the insurance policy pursuant to Safeco Ins. Co. of Am. v. White, 122 Ohio St.3d 562, 2009-Ohio-3718.
{8} An insurance policy is a contract, and its interpretation is a matter of law for the court. Sharonville v. Am. Emps. Ins. Co., 109 Ohio St.3d 186, 2006-Ohio-2180, 6. The coverage under an insurance policy is determined by construing the contract in conformity with the intention of the parties as gathered from the ordinary and commonly understood meaning of the language employed. King v. Nationwide Ins. Co., 35 Ohio St.3d 208, 211 (1988). Contract terms are to be given their plain and ordinary meaning, Dunson v. Home-Owners Ins. Co., 3d Dist. No. 5-09-37, 2010-Ohio-1928, ¶ 13, citing King, and when the contract is clear and unambiguous, the court may look no further than the four corners of the
{9} However, when a portion of an insurance contract is reasonably susceptible of more than one interpretation, it will be strictly construed against the insurer and in favor of the insured. Niemeyer v. W. Res. Mut. Cas. Co., 3d Dist. No. 12-09-03, 2010-Ohio-1710, 9, citing King at syllabus. The reviewing court may then examine extrinsic evidence to determine the intent of the parties if a contract is ambiguous. McDaniels at ¶ 33, citing Galatis. Nevertheless, this rule of insurance-policy interpretation will not be applied in an unreasonable manner. Galatis at 14.
{10} Furthermore, when an insurance contract contains exceptions to coverage, there is a presumption that all coverage applies unless it is clearly excluded in the contract. Bosserman Aviation Equip. v. U.S. Liab. Ins. Co., 183 Ohio App.3d 29, 2009-Ohio-2526, ¶ 11 (3d Dist.), citing Andersen v. Highland House Co., 93 Ohio St.3d 547, 549 (2001). Accordingly, in order for an insurer to defeat coverage through a clause in the insurance contract, it must demonstrate that the clause in the policy is capable of the construction it seeks to give it, and that such construction is the only one that can be fairly placed upon the language. Id.
{11} The party seeking to recover under an insurance policy bears the burden of demonstrating that the policy provides coverage for the particular loss. Chicago Title Ins. Co. v. Huntington Natl. Bank, 87 Ohio St.3d 270, 273 (1999). However, when an insurer denies liability coverage based upon a policy exclusion, the insurer bears the burden of demonstrating the applicability of the exclusion. Beaverdam Contracting, Inc. v. Erie Ins. Co., 3d Dist. No. 1-08-17, 2008-Ohio-4953, ¶ 19, citing Continental Ins. Co. v. Louis Marx & Co., 64 Ohio St.2d 399 (1980), syllabus.
{12} In the present case, the relevant policy provisions are as follows:
SECTION II – LIABILITY COVERAGES
A. Coverage E – Personal Liability
If a claim is made or a suit is brought against an insured for damages because of bodily injury1 or property damage2 caused by an occurrence3 to which this coverage applies, we will:
Pay up to our limit of liability for the damages for which an insured is legally liable. Damages include prejudgment interest awarded against an insured‘; and - Provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent. We may investigate and settle any claim or suit that we decide is appropriate. Our duty to settle or defend ends when our limit of liability for the occurrence has been exhausted by payment of a judgment or settlement.
* * *
SECTION II – EXCLUSIONS
* * *
E. Coverage E – Personal Liability * * *
Coverages E and F do not apply to the following:
1. Expected Or Intended Injury
Bodily injury or property damage which is expected or intended by an insured even if the resulting bodily injury or property damage:
- Is of a different kind, quality or degree than initially expected or intended; or
- Is sustained by a different person, entity, real or personal property, than initially expected or intended.
* *
7. Sexual Molestation, Corporal Punishment Or Physical Or Mental Abuse
Bodily injury or property damage arising out of sexual molestation, corporal punishment or physical or mental abuse * * *
{13} Given the foregoing language, UOIC must defend and indemnify Carolyn for the negligence claims against her if the alleged negligence is considered an occurrence under Section II – A, coverage for personal liability
Expected/Intentional Injury Exclusion
{14} The unambiguous language of the Expected/Intentional Injury exclusion precludes coverage for bodily injury that was expected by or caused intentionally (not negligently) by an insured. Because the causes of action against Carolyn at issue sound in negligence, the Expected/Intentional Injury exclusion does not preclude coverage for these causes of action. In other words, the mental state excluded by the Expected/Intentional Injury provision, does not apply to negligence.
{15} The unambiguous language of the Sexual Molestation provision, however, does preclude coverage for the claims of negligence against Carolyn. As stated above, the Sexual Molestation exclusion reads, Bodily Injury’ or ‘Property Damage’ arising out of sexual molestation * * * ” Policy, Section II. E. 7. According to the plain language of this provision, the policy excludes coverage for all bodily injury arising out of acts of sexual molestation, irrespective of the mental state of the defendant.
{16} The Supreme Court of Ohio has adopted a narrow interpretation of the term arising out of to mean caus[ing] or contribut[ing] to the bodily injury for which coverage is sought. Westfield Ins. Co. v. Hunter, 128 Ohio St.3d 540, 2011-Ohio-1818, 16-17, citing Am. States. Ins. Co. v. Guillermin, 108 Ohio App.3d 547, 565, (2d Dist. 1996). Arising out of connotes the need for a direct consequence or a responsible condition. Id. at ¶ 20, citing Eyler v. Nationwide Mut. Ins. Co., 824 S.W.2d 855 (Ky. 1992); see Starkey v. Builders FirstSource Ohio Valley, LLC, 130 Ohio St.3d 114, 2011-Ohio-3278, ¶ 17 (referring to arising out of as any causal connection, whether direct or aggravated); Taylor v. Ernst & Young, LLP, 130 Ohio St.3d 411, 2011-Ohio-5262, 70, citing Academy of Medicine of Cincinnati v. Aetna Health, Inc., 108 Ohio St.3d 185, 2006-Ohio-657, 18 (arising out of or relating to’ encompasses any dispute arising out of
{17} The amended complaint alleges that Carolyn‘s actions at the very least contributed to Plaintiffs’ bodily injuries, and thus is further support that coverage for her alleged negligence is excluded by the Sexual Molestation provision. In every cause of action, the Plaintiffs allege damages as a result of Defendants’ conduct, even going so far as to allege that Defendants constitute an enterprise in the ninth cause of action. Docket No. 30. The Plaintiffs further allege that Carolyn‘s negligence in supervising the children facilitat[ed Joshua‘s] rape, sexual battery, sexual assault, and sexual molestation of Plaintiff Chloe Crow * * *” Docket No. 30, ¶ 16. In fact, the amended complaint fails to allege any bodily injury due solely to Carolyn‘s negligence, but rather, predicates the damages on the conduct of Carolyn in conjunction with Joshua‘s conduct. Because of the wording in the amended complaint regarding the cause of Plaintiffs’ injuries, we are further convinced that Carolyn‘s negligence caused or contributed to, or was a responsible condition for Plaintiffs’ alleged damages that
{18} We note that upon initial review, this approach appears to contravene the analysis set forth by the Ohio Supreme Court in Safeco Ins. Co. of Am. v. White, 122 Ohio St.3d 562, 2009-Ohio-3718 (2009), a case hotly contested on appeal. In White, Benjamin White (Benjamin), the 17 year-old son of Lance and Diane White (the Whites) stabbed Casey Hilmer (Casey). Benjamin, who lived with the Whites at the time, pleaded guilty to attempted murder and felonious assault. Casey‘s parents sued Benjamin and the Whites, asserting claims of negligent supervision and negligent entrustment against the Whites. The Whites’ insurer, Safeco Insurance Company (Safeco), refused to defend or indemnify the Whites and filed a motion for declaratory judgment. The trial court held that Safeco was obliged to defend and indemnify the Whites in the negligence action against them. On appeal, the Ohio Supreme Court‘s decision was two-fold: first, it held that when an insurance policy‘s coverage for an occurrence is defined as an accident, allegations of negligence on behalf of an insured, which is predicated on the commission of an intentional tort by another person, will be considered an occurrence and therefore covered by the policy. White at syllabus. The second holding in White instructed that exclusionary provisions
{19} As indicated above, our decision today is not at odds with White. Rather, we find the analysis in White inapplicable to the present case as the policy provisions at issue are fundamentally different. In White, the insureds purchased a homeowner‘s policy as well as an umbrella policy from Safeco. The exclusion contained in the homeowner‘s policy expressly precluded coverage for bodily injury or property damage which is expected or intended by an insured or which is the foreseeable result of an act or omission intended by the insured.” Id. at ¶ 15. The umbrella policy excluded coverage for any injury caused by a violation of penal law or ordinance committed by or with the knowledge or consent of any insured, as well as for any act or damage which is expected or intended by any insured.” Id. at 16.
{21} Rather, our decision that the language of the Sexual Molestation provision excludes coverage for Carolyn‘s negligence allegations is supported by Westfield Ins. Co. v. Porchervina and United Ohio Ins. Co. v. Myers. In Myers, the plaintiffs brought a civil action against Sandra Myers for negligent supervision
SECTION II- EXCLUSIONS * * *
Medical payments to Others do not apply to bodily injury or property damage:
b. arising out of the actual or threatened physical or mental abuse, corporal punishment, or sexual molestation by anyone of any person while in the care, custody or control of an insured, or by the negligent employment, supervision, or reporting to the proper authorities, or failure to so report, of any person for who the insured is or ever was legally responsible[.] United Ohio Ins. Co. v. Myers, 3d Dist. No. 11-02-08, 2002-Ohio-6596, ¶ 25-27.
{22} The Porchervina case arises out of a lawsuit filed against Richard and Jacklyn Porchervina (the Porchervinas) by James and Kristy Simon (the Simons), alleging sexual assault and intentional infliction of emotion distress against Dale Porchervina (Dale), and breach of parental responsibility and negligent infliction of emotional distress against the Porchervinas for the sexual assault inflicted by Dale upon their child, Nicholas. Westfield filed a complaint for declaratory judgment arguing that it had no duty to defend or indemnify the Porchervinas in their lawsuit with the Simons. The trial court granted Westfield‘s motion for summary judgment. On appeal, the Eleventh District found, in
3. Coverage E Personal Liability and Coverage F- Medical Payments to Others do not apply to bodily injury or property damage: * * * k. [a]rising out of sexual molestation, corporal punishment or physical or mental abuse.” Westfield Ins. Co. v. Porchervina, 11th Dist. No. 2008-L-025, 2008-Ohio-6558, 29-31.
{23} Specifically, the court noted that the language of the exclusion was unambiguous and did not differentiate regarding who committed the act of sexual molestation. It explained that because “all of the Simons’ alleged injuries, including those attributed to the negligence of [the Porchervinas] arose out of Dale Porchervina‘s alleged sexual molestation of Nicholas Simon, Westfield has no duty to defend or indemnify the Porchervinas. Id. at 32.
{24} Porchervina and Myers are germane to the instant case as the factual background as well as the exclusionary provisions at issue are practically identical to the facts and to the Sexual Molestation exclusion in the present case. Accordingly, we find the analysis to be more applicable to the instant case than White.
{25} Further, while the Ohio Supreme Court has announced that public policy favors insurance coverage for negligence relating to sexual molestation5 and has set forth the analytical framework to address coverage for negligence of a
{26} Accordingly, Appellant‘s sole assignment of error is sustained.
Judgment Reversed
PRESTON and WILLAMOWSKI, J.J., concur.
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