Lumbermens Mutual Casualty Co. v. S-W Industries, Inc.

23 F.3d 970, 1994 WL 114375
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 7, 1994
DocketNos. 92-4182, 92-4212
StatusPublished
Cited by17 cases

This text of 23 F.3d 970 (Lumbermens Mutual Casualty Co. v. S-W Industries, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lumbermens Mutual Casualty Co. v. S-W Industries, Inc., 23 F.3d 970, 1994 WL 114375 (6th Cir. 1994).

Opinions

SUHRHEINRICH, Circuit Judge, delivered the opinion of the court. RYAN, Circuit Judge (pp. 983-84) and JOINER, Senior District Judge (pp. 984-85), delivered separate opinions concurring-in part and dissenting in part.

SUHRHEINRICH, Circuit Judge.

Lumbermens Mutual Casualty Company (Lumbermens) filed suit seeking a declaratory judgment as to its obligations under certain insurance policies issued to S-W Industries, Inc. (S-W). Because they also had issued various policies to S-W, Lumbermens named as defendants Aetna Casualty & Surety Company (Aetna), Employers’ Liability Assurance Corporation, Ltd. (ELAC), The Travelers Insurance Company (Travelers), American Home Assurance Company (AHAC), National Union Fire Insurance Company (NUFIC),1 Youell & Company (Yo-[972]*972uell); J.F. Green. & Others (Green); H.S. Weavers Agencies, Ltd. (Weavers) (collectively, “appellee-insurers”). The district court granted summary judgment to each of the insurers on the grounds that the judgment for which S-W seeks indemnification did not come within the coverage provisions of, or fell within exclusions to, each of the various insurance policies. S-W appeals and Lumbermens cross-appeals. We have jurisdiction, 28 U.S.C. § 1332(a)(1); Fed.R.Civ.P. 54(b), and now AFFIRM, in part, and VACATE, in part, and REMAND this case to the district court for further proceedings.

I.

Carl Viock, an employee of S-W from 1968 to 1981, worked cementing strips of rubber onto rotating drums. As a result, he was continually exposed to the fumes from highly-volatile, toxic cements and solvents as well as various congestive dusts created by the plant’s rubber fabricating processes. In 1976, Viock was hospitalized and diagnosed with pneumonia caused by his continual exposure to chemicals at work. Upon his release, Viock returned to work with his doctor’s restriction that he work only in a chemical-free and dust-free environment. S-W contended that no such environment existed at its plant and Viock, facing unemployment, had his doctor remove the restriction. Viock returned to his job and continued to suffer symptoms of his lung disease. Each day, Viock spent his lunch hour connected to an IPPB, a machine used to clear his congested lungs and aid his breathing. Viock’s manager at the plant even suggested that Viock bring the IPPB to work so that he would not have to leave the plant during his lunch hour.

Upon his return to work, Viock sought and received benefits under Ohio’s Workers Compensation scheme. Union representatives also requested that Viock’s work area be ventilated with exhaust fans. S-W responded by offering Viock a respirator and by installing a portable fan near Viock. Nevertheless, by 1981, Viock’s condition had worsened and S-W requested that he be examined by the company’s physician. The physician concluded that Viock’s lung condition had progressed to the point that he could no longer be productive in his job and, accordingly, Viock was terminated on June 1, 1981.

Eight months later, Viock sued S-W alleging that S-W “fraudulently, intentionally and/or maliciously disguised working conditions and/or concealed from [him] and his physician material information and warnings concerning the toxic substances to which [he] was continuously and repeatedly exposed.” Mrs. Viock also sued for her loss of consortium stemming from the injuries to her husband. A jury returned compensatory damage awards in favor of the Vioeks in the amount of $1,150,000 and assessed punitive damages against S-W in the amount of $2,500,000. The Ohio Court of Appeals affirmed, in full, the Vioeks’ awards. S-W claims, and it is not disputed, that it has paid this judgment.

In 1986, Lumbermens filed this action seeking a declaratory judgment regarding its liability under certain insurance policies sold to S-W for the sums S-W paid to the Vioeks. Lumbermens also named as defendants S-Ws other insurers that had policies in force during the applicable period. All parties moved for summary judgment on the question of coverage. The district court granted summary judgment to each of the insurers on the grounds that no coverage existed under any of the various policies at issue and, pursuant to Federal Rule of Civil Procedure 54(b), certified these judgments as final for purposes of this appellate review. Notices of appeal and cross-appeal were timely filed.

II.

As there are seven appellee-insurers raising some thirty or more points in affirmance of the district court’s decision, the needs of clarity and organization demand that certain overarching issues be resolved first. Then, applying the resolution of these issues, the liability of each insurer is considered in turn.

A. Public Policy

The appellee-insurers contend that, even if their policies can be read to provide coverage for S-W’s liability to the Vioeks, the public policy of Ohio forbids the enforcement of those provisions on the grounds that an in[973]*973tentional tortfeasor may not seek indemnification through insurance. The Viocks’ cause of action, they argue, was based on S-W’s intentional torts and, therefore, the judgment which resulted must be borne by S-W alone.

Based upon the Ohio Supreme Court’s interpretation of that state’s public policy, we hold that Ohio law does not prohibit indemnification of the $1,150,000 that S-W paid in compensatory damages. Ohio public policy does prohibit, however, any indemnification of the $2,500,000 punitive damage award and, to that extent, the district court’s grants of summary judgment in favor of the insurers in this case are affirmed.

1. The Viocks’ claim

To address the appellee-insurer’s assertions of Ohio public policy, we must first review the nature of the Viocks’ cause of action against S-W. Viock’s injuries undis-putedly occurred in the workplace and, ordinarily, compensation for such injuries is restricted in Ohio to an award of workers compensation benefits. See Ohio Const, art. II, § 35; Ohio Rev.Code Ann. § 4123.74 (Anderson). The Ohio Supreme Court, however, has recognized that. Ohio’s workers compensation scheme provides no immunity for an employer’s intentional torts against its employees. Thus, where an employee’s injuries are the product of his employer’s intentional torts, recovery may be sought under the common law. Blankenship v. Cincinnati Milacron Chems., 69 Ohio St.2d 608, 433 N.E.2d 572, 576 (1982).

In the context of employer intentional torts, it was necessary to define what actions by employers, other than those taken with the subjective purpose of injuring a specific employee, would be considered to have been “intentionally” tortious. The Ohio Supreme Court first addressed this issue in Jones v. VIP Development Co., 15 Ohio St.3d 90, 472 N.E.2d 1046 (1984). The court stated:

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Cite This Page — Counsel Stack

Bluebook (online)
23 F.3d 970, 1994 WL 114375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lumbermens-mutual-casualty-co-v-s-w-industries-inc-ca6-1994.