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Sullivan

Sullivan

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Published by: acie600 on Oct 03, 2013
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COVERAGE FOR EMPLOYMENTINTENTIONAL TORTS
Presented by:Brian D. Sullivan June 21, 2013
 
 
 
2
I.
 
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
.
241 (1938).In
 Rothman
, 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.
II.
 
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.
 See
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.
 Blankenship
held that an employee could suehis employer for work-related injuries only if the employer intentionally inflicted theinjuries. Under
 Blankenship,
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.
 Blankenship, supra
 
at syllabus. Of course, this exception was created only for the most “egregious cases.”
 
 
 
3
 A.
 
Historical Development of Case Law 
1.
 
 Blankenship v. Cincinnati Milacron Chemicals, Inc.
, 69 Ohio St.2d 608(1982).a.
 
 As noted above, the Court in
 Blankenship
created an exception to thegeneral rule that an employee is precluded from suing an en employeras a result of a work-related injury.
 Blankenship
held that an employeecould sue his employer for work-related injuries
only if 
the employerintentionally inflicted the injuries. b.
 
Thus,
 Blankenship
established the common law action for employerintentional torts.c.
 
Notably, the court reasoned that “Affording an employer immunity for
his intentional behavior would not promote [a safe and injury-free work environment], for an employer could commit intentional acts
 with impunity with the knowledge that, at the very most, his workers’compensation premiums may slightly rise.”
 Id.
at 615.2.
 
 Jones v. VIP Development Co.
, 15 Ohio St.3d 90 (1984).a.
 
The Court clarified the
 Blankenship
holding by providing a working
definition of the tort: “An intentional tort is an act committed with the
intent to injure another, or committed with the belief that such injury is substantiall
 y certain to occur.”
 Id.
at 95. b.
 
Further, the Court determined that an employer’s intent could be
 inferred from the circumstances of the case.3.
 
Wedge Products, Inc. v. Hartford 
, 31 Ohio St.3d 65 (1987).
 
a.
 
The Court held that an intentional tort allegedly committed by anemployer against its employee is not covered by an insurance policy 
 which provides protection for bodily injuries “neither expected norintended” by the employer.
  b.
 
This care arose from personal injuries actions filed by two employeesinjured as a result of two separate punch press accidents. Theemployees both alleged that their injuries resulted from intentionaltorts committed by the employer. The insurance company declined to
defend the employer because (1) the injuries were “expected or
i
ntended,” and (2) the injuries arose out of and in the course of their
employment. The trial court consolidated the actions and held thatthe insurance company was obligated to defend the employer.
 
c.
 
In applying the
 Jones
 
definition of “intentional tort” (t
hat a tortfeasorcommit an act with (1) the intent to injure another or (2) the belief that such injury is substantially certain to occur), the Court reasoned

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