INTRODUCTION TO THE INSURABILITY OF INTENTIONAL TORTSIN OHIO
The Ohio Supreme Court first dealt with the issue of the insurability of intentional torts in 1938.
Rothman v. Metropolitan Cas. Ins.
, 134 Ohio St
, the plaintiff was a passenger in a truck that went off the road and
overturned. Rothman sued the company for “wanton misconduct,” and was awarded
$500. Rothman then filed a supplemental petition against Metropolitan Casualty, the
trucking company’s insurer. Metropolitan refused to pay the judgment because itspolicy only covered “bodily injuries…accidentally suffered.” The Court found coverage,
drawing an early distinction between a willful act and a willful injury:It is well settled that from public policy standpoint the act of intentionally inflicting an injury cannot be covered by insurance in anywise protecting the person who inflicts suchinjury
…In our opinion, only those acts which are not
motivated by an intent and purpose to injure are to beregarded as covered by the terms of this policy.The Court then left this issue alone for approximately fifty years beforeaddressing the insurability of intentional conduct again in a string of cases in the late
1980’s and early 1990’s.
Preferred Risk Ins. Co. v. Gill
, 30 Ohio St.3d 108 (1987);
Wedge Products, Inc. v. Hartford
, 31 Ohio St.3d 65 (1987);
Harasyn v. Normandy Metals, Inc.
, 49 Ohio St.3d 173 (1990); and
Physicians Ins. Co. v. Swanson
, 58 OhioSt.3d 189 (1991); and
Penn Traffic Company v. AIU Insurance Co.
, 99 Ohio St. 3d 227(2004). This confusion has been exacerbated with the recent enactment of an employerintentional tort statute that has withstood constitutional scrutiny. These decisions haveleft a confusing patchwork of legal principles which must be navigated in understanding
an insured’s risk to employment
-related exposures and assessing whether an insuranceproduct addresses those risks.
HISTORICAL DEVELOPMENT OF EMPLOYER INTENTIONAL TORTS
Generally, an employee is precluded from suing the employer as a result of a work-
related injury that is covered by the Ohio Workers’ Compensation Act.
OhioConstitution Article II, Section 35; R.C. 4123. However, in 1982, the Ohio SupremeCourt in
Blankenship v. Cincinnati Milacron Chemicals, Inc.
, 69 Ohio St.2d 608, 614(1982) created an exception to this rule.
held that an employee could suehis employer for work-related injuries only if the employer intentionally inflicted theinjuries. Under
the Ohio Supreme Court specifically held that neither Article II, Section 35 of the Ohio Constitution nor R.C. 4123.74 preclude an employeefrom seeking damages against his employer for an intentional tort.
at syllabus. Of course, this exception was created only for the most “egregious cases.”