Lead Opinion
{¶ 1} This аppeal presents questions regarding the insurability of employer intentional torts under R.C. 2745.01. We hold that an insurance provision that excludes coverage for acts committed with the deliberate intent to injure an employee precludes coverage for employer intentional torts, which require a finding that the employer intended to injure the employee.
Factual Background
{¶ 2} Appellee, Duane Allen Hoyle, brought this action to recover for injuries he sustained when he fell from a ladder-jack scaffold while working as a carpenter on a construction project for his employers, appellees, DTJ Enterprises, Inc. (“DTJ”) and Cavanaugh Building Corporation (“Cavanaugh”). Hoyle describes a ladder-jack scaffold as an apparatus consisting of two extension ladders positioned vertically, with a horizontal walkway platform supported by brackets spanning the space between them. Ladder jacks are the brackets that support the platform. Webster’s Third New International Dictionary 1262 (3d Ed.1993). They are generally secured to the ladder with a bolt or pin that goes though the ladder jack and is secured in back by a nut.
{¶ 3} Phillip L. Colleran, a certified safety professional and professional member of the American Society of Safety Engineers who executed an expert
{¶ 4} On March 25, 2008, Hoyle fell approximately 14 feet from the ladder-jack scaffold and landed on a concrete pad. Just before his fall, Hoyle stepped onto a portion of the platform that extended past the ladder jack on one end, causing the ladder jаck on the opposite end to lift and detach from its ladder. As Hoyle moved back toward the center, the detached ladder jack lowered, but missed the rungs of the ladder and pushed the ladder outward. The ladder and Hoyle fell to the concrete below.
{¶ 5} Hoyle sued DTJ and Cavanaugh in the Summit County Court of Common Pleas, alleging claims of employer intentional tort. Appellant, the Cincinnati Insurance Company (“CIC”), which insured DTJ and Cavanaugh under a commercial general liability (“CGL”) policy, intervened and filed a complaint for a declaratory judgment that it has no obligation to indemnify DTJ and Cavanaugh for Hoyle’s injuries.
{If 6} Unlike the broader duty to defend, an insurer’s duty to indemnify its insureds is based on whether there is, in fact, actual liability. Chemstress Consultant Co., Inc. v. Cincinnati Ins. Co.,
Employer Intentional Torts
{¶ 7} Because of the immunity conferred by R.C. 4123.74 and Article II, Section 35, Ohio Constitution, for the vast majority of workplace injuries a workers’ compensation claim is an employee’s exclusive remedy. See generally Van Fossen v. Babcock & Wilcox Co.,
{¶ 8} An intentional tort involves an act committed with the specific intent to injure or with the belief that injury is substantially certain to occur. Jones v. VIP Dev. Co.,
(1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation; (2) knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be a substantial certainty; and (3) that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task.
Id.
{¶ 9} R.C. 2745.01, which now governs employer intentional torts in Ohio, took effect on April 7, 2005, and provides as follows:
(A) In an action brought against an employer by an employee * * * for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be liable unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.
(B) As used in this section, “substantially certain” means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.
(C) Deliberate removal by an employer of an equipment safety guard * * * creates a rebuttable presumption that the removal * * * was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result.
R.C. 2745.01 passes constitutional muster, Kaminski v. Metal & Wire Prods. Co.,
{¶ 10} R.C. 2745.01(A) incorporates the definitiоn of an employer intentional tort from Jones,
{¶ 11} The General Assembly’s intent in enacting R.C. 2745.01 was to “significantly restrict” recovery for employer intentional torts to situations in which the employer “acts with speсific intent to cause an injury.” Kaminski,
{¶ 12} R.C. 2745.01(C) permits an employee to prove the employer’s intent without direct evidence. When the employee is injured as a direct result of the employer’s deliberate removal of an equipment safety guard,
Hoyle’s Claims
{¶ 13} In his complaint, Hoyle alleged that DTJ and Cavanaugh “acted with deliberate intent (under R.C. § 2745.01) to cause injury” and that their actions “constitute^] or [were] equivalent to the ‘deliberate removal by an employer of an equipment safety guard’ as set forth in R.C. § 2745.01.” DTJ and Cavanaugh moved for summary judgment on Hoyle’s claims, arguing that he could not prove that they acted with intent to injure or that injury was substantially certain.
{¶ 14} The trial court granted partial summary judgment in favor of DTJ and Cavanaugh “[t]o the extent that [Hoyle’s] claims rely on R.C. 2745.01(A) & (B) alone” because Hoyle “provide[d] no evidence that the Defendants acted with a specific intent to injure” him. But the trial court stated that its decision “does not apply” to the extent that Hoyle’s cause of action relies upon R.C. 2745.01(C), which “necessarily include[s] the ‘intent to injure.’ ” The trial court found genuine issues of material fact as to whether the pins normally used to secure the ladder jacks constitute an equipment safety guard and whether DTJ and/or Cavanaugh deliberately removed them. Thus, the trial court has not finally adjudicated Hoyle’s employer-intentional-tort claims.
{¶ 15} In light of R.C. 2745.01 and this court’s precedent regarding employer intentional torts, and because the question before this court is whether CIC is obligated to indemnify DTJ and Cavanaugh for any liability Hoyle may establish, we now turn tо the language of the CIC policy. CIC maintains that even if Hoyle prevails on his employer-intentional-tort claims, any liability would be excluded from coverage because it must be premised upon the employer’s deliberate intent to injure the employee.
The Insurance Policy
{¶ 16} The CIC policy covered a policy period of March 31, 2007, through March 31, 2010. The policy’s CGL Coverage Form states, “We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury * * * to which this insurance applies.” But the CGL Coverage Form excludes coverage for bodily injuries that may reasonably be expected to result from the insured’s intentional acts or that the insurеd expected or
{¶ 17} The question of coverage here depends entirely upon a policy endorsement entitled “Employers Liability Coverage Form — Ohio,” which DTJ and Cavanaugh purchased for an additional premium. The Employers Liability Coverage Form provides coverage for “those sums that an insured becomes legally obligated to pay as damages because of ‘bodily injury’ sustained by your ‘employee’ in the ‘workplace’ and caused by an ‘intentional act’ to which this insurance applies.” The Employers Liability Coverage Form defines “intentional act” as “an act which is substantially certain to cause ‘bodily injury.’ ” Thus, the Employers Liability Coverage Form purports to extend coverage to substantial-certainty employer intentional torts that would otherwise be excluded from coverage under the CGL Coverage Form. But the Employers Liability Coverage Form also expressly excludes coverage for “liability for acts committed by or at the direction of an insured with the deliberate intent to injure.”
{¶ 18} In a summary entitled “Notice to Policyholders: Ohio Employers Liability,” CIC informed its insureds that the Employers Liability Coverage Form “provides coverage for employment intentional torts in which the employer had knowledge of the existence of a danger, knowledge that the danger would be substantially certain to result in harm, and required the employee to continue to perform the dangerous task.” CIC also informed its insureds that R.C. 2745.01 “changes the current law” and permits recovery for employer intentional torts only upon proof of the employer’s “intent to injure” or “deliberate intent” to injure. In the notice, CIC implicitly recognizes the contradiction of providing coverage for substantial-certainty employer intentional torts in light of R.C. 2745.01, which excludеs liability for such torts, but CIC states that until challenges to R.C. 2745.01 have been resolved, CIC will continue to offer and provide employers liability coverage. According to CIC’s appellate brief, following this court’s decision in Kaminski,
CIC’s Declaratory-Judgment Claim
{¶ 19} In its complaint, CIC alleged that it has no duty to indemnify DTJ and Cavanaugh under the CIC policy and that, additionally, R.C. 2745.01 and Ohio public policy preclude coverage for the employer intentional torts alleged against DTJ and Cavanaugh. CIC argued in its motion for summary judgment that any recovery on Hoyle’s claims must be based uрon a finding of intent to cause injury
{¶ 20} A divided panel of the Ninth District Court of Appeals reversed the summary judgment in favor of CIC. The majority framed the issue as “whether, if deliberate intent were to be presumed by operation of [R.C. 2745.01(C)], the claim- would be excluded from coverage under the Employer Liability policy for actions taken with the ‘deliberate intent’ * * * to injure.” (Emphasis sic.)
{¶ 21} This court accepted CIC’s discretionary appeal.
Analysis
{¶ 22} At the outset, we reiterate that the trial court has not determined the merits of Hoyle’s employer-intentional-tort claim under R.C. 2745.01(C). The court found that Hoyle did not present direct evidence of DTJ’s and Cavanaugh’s intent but held that genuine issues of material fact remained as to whether Hoyle could prevail on his claim by using the rebuttable presumption under R.C. 2745.01(C). Thus, Hoyle may still demonstrate that DTJ and/or Cavanaugh deliberately removed an equipment safety guard and that his injuries occurred as a direct result, at which point he will be entitled to a presumption that DTJ and
{¶ 23} The partiеs dispute the significance of the R.C. 2745.01(C) presumption and any resulting liability. A presumption is a procedural device that courts resort to “only in the absence of evidence by the party in whose favor [the] presumption would otherwise operate.” Ayers v. Woodard,
{¶ 24} The presumption under R.C. 2745.01(C) does not shift the ultimate burden of proof from Hoyle, but “a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption.” Evid.R. 301. If that party produces evidence that “counterbalances the presumption or * * * leave[s] the case in equipoise,” then the presumption disappears аnd the case must be disposed of on the evidence presented, without reference to the presumption. In re Guardianship of Breece,
{¶ 25} It is tempting to look to the merits of Hoyle’s claims and hold that CIC has no duty to indemnify because, despite the presumption in R.C. 2745.01(C), the trial court found that Hoyle produced no evidence that DTJ and Cavanaugh acted with a specific intent to injure him. But “[t]he whole point of [R.C. 2745.01(C)] is
{¶ 26} If Hoyle establishes that DTJ and Cavanaugh deliberately removed an equipment safety guard and that the removal directly caused his injuries, he will be entitled to a presumption that DTJ and Cavanaugh acted with the intent to harm him. If DTJ and Cavanaugh do not rebut the presumption, then Hoyle will have established that they acted with intent to harm him as a matter of law. In any case, liability on Hoyle’s employer-intentional-tort claim will be based upon a finding that DTJ and Cavanaugh acted with intent to injure Hoyle. Houdek,
{¶ 27} The Employers Liability Coverage Form purports to extend coverage for substantial-certainty employer intentional torts, but not direct-intent employer intentional torts. While DTJ and Cavanaugh rely on the language of the Employers Liability Coverage Form to argue that “deliberate intent” has a more limited meaning under the policy than under R.C. 2745.01, that argument does not address the overarching prohibition against legal liability for employer intentional torts in the absence of the employer’s deliberate intent to cause injury. See Kaminski,
Public Policy Against Insuring for Employer Intentional Torts
{¶ 28} CIC additionally argues that it is not required to indemnify DTJ and Cavanaugh because any coverage under the Employers Liability Coverage Form would violate Ohio’s long-standing public policy prohibiting insurance against
{¶ 29} Because the terms of the Employers Liability Coverage Form preclude coverage in this case, we need not broadly determine whether the rationale in Harasyn remains applicable in light of the subsequent enactment of R.C. 2745.01 or whether Ohio public policy prohibits any type of indemnity coverage for employer intentional torts.
Illusory Coverage
{¶ 30} Finally, we turn to DTJ and Cаvanaugh’s argument that if, as we have found, the CIC policy does not provide indemnity coverage for employer intentional torts, then the Employers Liability Coverage Form provides no coverage at all and is illusory. Relying on Ward v. United Foundries, Inc.,
{¶ 31} DTJ and Cavanaugh did not raise the issue of illusory coverage in the trial court, and neither the trial court nor the court of appeals addressed this issue. “ ‘Ordinarily, reviewing courts do not consider questions not presented to the court whose judgment is sought to be reversed.’ ” State ex rel. Quarto Mining Co. v. Foreman,
{¶ 32} On July 1, 2014, subsequent to oral argument, CIC moved this court for leave to file supplemental authority, pursuant to S.Ct.Prac.R. 17.09(A), which provides, “Unless ordered by the Supreme Court, the parties shall not tender for filing and the Clerk of the Supreme Court shall not file any additional briefs or other materials relating to the merits of the case after the case has been orally argued.” CIC requests leave to file an аffidavit from a vice president in its Commercial Lines Department regarding CIC’s actions with respect to employers’ liability coverage following this court’s decisions in Kaminski,
{¶ 33} The affidavit that CIC presents, having been obtained following oral argument, was not in the record before either the trial court or the court of appeals. It is a fundamental principle that an appellate court is constrained to review only those matters contained in the record. See Brown v. Cleveland,
Conclusion
{¶ 34} Because liability for an employer intentional tort under R.C. 2745.01 requires a finding that the employer acted with the intention to injure an employee, we conclude that an insurance provision that excludes from coverage liability for an insured’s act committed with the deliberate intent to injure an employee precludes,coverage for employer intentional torts. As a result, no facts could give rise to a duty upon CIC to indemnify DTJ or Cavanaugh, even if Hoyle were to prevail on his claims against them. Accordingly, the trial court correctly granted summary judgment in favor of CIC on its claim for declaratory judgment. We therefore reverse the judgment of the Ninth District Court of Appeals and reinstate the summary judgment in favor of CIC.
Judgment reversed.
Notes
. CIC does not dispute its obligation to defend DTJ and Cavanaugh against Hoyle’s claims.
. This court has previously addressed the definition of “equipment safety guard.” Hewitt v. L.E. Myers Co.,
Dissenting Opinion
dissenting.
{¶ 36} Thirty-three years ago, the Ohio Supreme Court, in Blankenship v. Cincinnati Milacron Chem., Inc.,
{¶ 37} Let’s take a look at why Blankenship was so important. The facts speak for themselves. In Blankenship, the complaint alleged that workers had been intentionally exposed to toxic chemicals without warning and as a result had suffered chemical intoxication. The trial court had dismissed the claim as insufficient under Civ.R. 12(B)(6) and held that workers’ compensation was the exclusive remedy for the poisoned workers, and the court of appeals had affirmed.
{¶ 38} The Supreme Court of Ohio reversed. The court concluded, “Since an employer’s intentional conduct does not arise out of employment, R.C. 4123.74 does not bestow upon employers immunity from civil liability for their intentional torts and an еmployee may resort to a civil suit for damages.” Blankenship at 613. The court held, “An employee is not precluded by Section 35, Article II of
{¶ 39} In response, the General Assembly enacted former R.C. 4121.80, Am.Sub.S.B. No. 307, 141 Ohio Laws, Part I, 733-737. R.C. 4121.80 was invalidated by this court in Brady v. Safety-Kleen Carp.,
{¶ 40} The current version of R.C. 2745.01 was challenged and upheld in Kaminski v. Metal & Wire Prods. Co.,
{¶ 41} The lead opinion states that this case is merely about the insurability of employer intentional torts. The lead opinion states and reiterates that Hoyle’s intentional-tort claim against his employer has yet to be decided and remains viable under the statute. Lead opinion, ¶ 14, 22. I wish I could agree. Hoyle deserves his day in court. Unfortunately, I believe that Justice Lanzinger is correct when she writes that as a result of this decision, “[t]here is now nothing less than deliberate intent” and that the practical effect of the lead opinion is that injured employees will be limited to workers’ compensation. Id. at ¶ 35 (Lanzinger, J., concurring in syllabus and judgment only).
{¶ 43} In this case, DTJ Enterprises, Inc., and Cavanaugh Building Corporation stand in the spotlight and very well may be found culpable for the missing safety device. In that event, they could be legally liable to Hoyle under R.C. 2745.01(A) if he can show that the employer acted with intent to injure. One of the ways that Hoyle can show intent, should this matter ever see the inside of a courtroom, is by using the presumption under R.C. 2745.01(C). Most important to our inquiry here is that the insurance policy in question explicitly excludes coverage only for deliberate intentional torts. And while the policy defines an intentional act as an act substantially certain to cause bodily injury, it is significant that the policy does not limit the definition of intent to mean deliberate intent. Thus DTJ and Cavanaugh could be legally liablе to Hoyle for intentional conduct under the statute and within the scope of the policy. But somehow the lead opinion reaches the conclusion that there is no set of facts under which DTJ and Cavanaugh could be legally liable to Hoyle that falls within the policy’s coverage. I disagree. A single act could in fact be found to be substantially certain to cause an injury but not be driven by a deliberate intent to injure.
{¶ 44} The lead opinion rationalizes its erroneous conclusion by adopting the assertion of Cincinnati Insurance Company (“CIC”) that it is not required to indemnify DTJ and Cavanaugh, because any coverage under the Employers Liability Coverage Form — Ohio violates Ohio’s long-stаnding public policy prohibiting insurance against liability for an insured’s own intentional torts. CIC’s brazen assertion here is disingenuous at best, considering that it drafted the policy and collected premiums from DTJ. Can this court truly countenance an insurance company’s assertion that it should be permitted to collect a premium for an event that is never going to happen?
{¶ 45} More important, as the lead opinion points out, this court has determined that not all intentional torts are uninsurable. Lead opinion, ¶ 28, citing Buckeye Union Ins. Co. v. New England Ins. Co.,
{¶ 46} I would affirm the Ninth District’s holding in this case. CIC got the benefit of its deal with DTJ, and now, under the express terms of its policy, it should absolutely be required, based on the language it authored itself, to indemnify DTJ and Cavanaugh for any intentional tort except for those acts committed with deliberate intent.
{¶ 47} I dissent.
Concurrence Opinion
concurring in syllabus and judgment only.
{¶ 35} I concur in judgment, but I would frankly state that by defining “substantially certain” acts as “deliberate” in R.C. 2745.01, the General Assembly has closed off employer intentional torts. Even if a plaintiff proves the employer’s intent to injure directly under R.C. 2745.01(A) or (B), or by an unrebutted presumption under R.C. 2745.01(C), the act is not insurable as was the old substantial-certainty intentional tort. Harasyn v. Normandy Metals, Inc.,