OHIO CASE - INSURANCE COVERAGE

? Krewina v. United States Specialty Insurance Company, Slip Opinion No. 2023-Ohio-2343 (July 12, 2023)

Supreme Court of Ohio decision addressing assault-and-battery exclusion in a CGL policy.        

???????????This case involved a claim under a commercial general liability policy.?The plaintiff was a resident in an the insured’s adult-care center.?During the applicable policy period, another resident in the facility attacked the plaintiff with a knife, causing serious injuries.?The attacker was criminally charged, but was found not guilty by reason of insanity. The plaintiff then filed suit against the care center in the Hamilton County, Ohio Court of Common Pleas.

???????????The insured tendered the suit to its CGL carrier, which denied coverage pursuant to an “assault-or-battery exclusion.”?The insured ultimately entered into a settlement agreement with the plaintiff, which included a consent judgment and a covenant not to execute the judgment against the insured’s assets.?The plaintiff then filed a declaratory judgment action against the insurer to collect on the judgment.

???????????In the trial court, the plaintiff argued that the assault-and-battery exclusion did not apply because the criminal court found the attacker lacked the mental acuity to formulate the intent, or mens rea, necessary to prove an assault or battery.?The trial court disagreed with the plaintiff and found the exclusion barred coverage for his claim. ?The Ohio First District Court of Appeals reversed the decision of the trial court, finding that because the attacker did not act “intentionally, knowingly, or recklessly,” as required for a criminal assault or battery charge, no assault or battery had occurred and the exclusion did not apply.?The insurer appealed the decision of the First District to the Supreme Court of Ohio for discretionary review, which was granted.?

???????????On appeal, the Supreme Court of Ohio reversed the decision of the First District and reinstated the trial court’s order dismissing the case.?The Court noted that because an insurance policy is a civil contract, the civil definitions for assault and battery (which were not defined in the policy) apply.?The Court went on to point out that the civil definitions of assault or battery do not include intent as an element which is necessary to prove a civil claim for either act.?

The Court went on to find that the case relied on by the First District, Nationwide Ins. Co. v. Estate of Kollstedt, 646 N.E.2d 816 (Ohio 1995), which considered the denial of a claim for an assault by a person determined to be mentally incapacitated to the point he could not be held criminally liable, was not applicable because the policy language in that case was different than the insured’s policy.?The policy addressed in Kollstedt, was a homeowners policy which contained an “expected or intended acts” exclusion.?The Court in Kollstedt? found the “expected or intended acts” exclusion did not apply to claims where the insured was mentally incapable of performing an intentional act.?The policy at issue in the present case specifically excluded “assault-and-battery,” and did not reference intent as a requirement to trigger the exclusion.?There, the holding in Kollstedt was easily distinguishable and did not apply in this case.?

I hope this brief summary was informative.?Should you have any questions or wish to discuss these issues in more detail, please feel free to contact me.