665 N.E.2d 1171 | Ohio Ct. App. | 1995
In this declaratory judgment action, DII sought to have Nationwide Mutual Insurance Company ("Nationwide") pay for DII's defense and for any judgment entered as a result of Miro's conduct, pursuant to a commercial general liability policy issued to DII and Mwafag Gammoh Partnership, d.b.a. Gold Star Chili. Nationwide refused to defend DII or to pay any judgment under the policy.
Judgment was awarded to Comello for her harassment claim. Fahad S. David, a.k.a. Daoud, and Gold Star Chili were dismissed in the underlying action and are not part of this appeal. In the declaratory judgment action, the trial court held that Nationwide had a duty to defend DII, but no obligation to pay the judgment entered against it. Nationwide appealed and DII cross-appealed.
Nationwide makes four arguments that it did not owe a defense to DII in the Comello action: (1) that Comello suffered no "bodily injury" and therefore her claims are not covered by the policy, (2) that Comello's action did not stem from an "occurrence" and therefore her claims are not covered by the policy, (3) that because Comello's injuries arose out of her employment at Gold Star Chili, policy exclusion provisions preclude Comello's claims, and (4) that Comello's claims are not "personal injury" claims and, therefore, are not covered by the policy. If Nationwide prevails on any one of these issues, then there is no coverage. We hold that Nationwide prevails on all four.
Comello stated at trial that she sustained emotional distress, but not physical injuries. Section V of the policy defines "bodily injury" as "bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time." Therefore, we must determine whether the policy definition of "bodily injury" arguably covers emotional distress.
DII contends that emotional distress arguably falls under Nationwide's definition of "bodily injury" because either emotional distress is included in the definition, or the modifier "bodily" does not apply to "sickness" or "disease."
The Ohio Supreme Court has held that "bodily injury" usually indicates an injury brought on by external violence.Tomlinson v. Skolnik (1989),
In our view, whether the word "bodily" modifies "sickness" or "disease" is irrelevant. Neither sickness nor disease arguably includes emotional distress. Bowman, supra; Reichard, supra. We are persuaded by these cases that emotional distress, in the absence of some physical harm, does not even arguably constitute a "bodily injury" as contemplated by this insurance definition.
Even if it is assumed that the definition of "bodily injury" in the policy arguably would cover emotional distress, Nationwide argues that Comello's action did not stem from an "occurrence" and therefore her claims are not covered by the policy. Section V of the policy defines "occurrence" as "an accident, including continuous or repeated exposure to substantially the same harmful conditions." Therefore, we must determine whether the policy definition of "occurrence" arguably covers Miro's actions and DII's inaction.
Comello alleged that DII acted negligently, and therefore "accidentally." However, in Randolf v. Grange Mut. Cas. Co.
(1979),
Even if it is assumed, arguendo, that the definition of "bodily injury" in the policy arguably covers emotional distress and Comello's action did stem from an "occurrence," Nationwide argues that the policy exclusion provisions preclude *303 Comello's claims because Comello's injuries arose out of her employment at Gold Star Chili.
Under Section I, paragraph 2, the policy states:
"This insurance does not apply to: * * * e. `Bodily injury' to: (1) An employee of the insured arising out of and in the course of employment by the insured * * *. This exclusion applies whether the insured may be liable as an employer or in any other capacity * * *."
We must decide whether the exclusion arguably does not apply to Comello's injuries. If emotional distress is a bodily injury, the insurance does not apply to bodily injury to an employee of the insured arising out of and in the course of employment by the insured. The trial court evaluated Miro's conduct and determined that his conduct did not arise out of the course of his employment with DII. No artful twisting of the exclusion provision can make the words "bodily injury to an employee of the insured" mean Miro's conduct. See, e.g., Natl. Ben FranklinIns. Co. v. Harris (1987),
When read as written, the exclusion unambiguously states that the insurance does not apply to Comello's emotional distress (i.e., "bodily injury to an employee of the insured") arising out of and in the course of employment by DII. Comello's emotional distress clearly arose out of and in the course of her employment with DII. Therefore, the exclusion applies directly and unambiguously to exclude Comello's injuries from coverage under the policy.
Fourth, if each of Nationwide's first three issues were to fail, Nationwide asserts that Comello's claims are not "personal injury" claims and, therefore, are not covered by Coverage B of the policy. Under Coverage B, the policy covers "personal injury caused by an offense arising out of [DII's] business, excluding advertising, publishing, broadcasting, or telecasting done by or for [DII]." Section V defines "personal injury" as "injury other than bodily injury arising out of one of the following offenses: * * * e. oral or written publication of material that violates a person's right to privacy." (Emphasis added.)
DII asserts that Miro's conduct constituted an invasion of Comello's privacy, citing Housh v. Peth (1956),
We hold that Comello did not arguably allege a "bodily injury" as defined in the policy, that Comello did not arguably allege an "occurrence" as defined in the policy, that Comello was unarguably excluded by the employee exclusion, and that Comello did not arguably allege a "personal injury" as defined in the policy. Any one of these grounds would excuse Nationwide from the assumption of DII's defense. Therefore, Nationwide's assignment of error is well taken, and the trial court's judgment holding Nationwide responsible for DII's defense costs and expenses must be reversed.
Judgment accordingly.
GORMAN, P.J., and MARIANNA BROWN BETTMAN, J., concur.