Physicians Insurance v. Swanson

569 N.E.2d 906, 58 Ohio St. 3d 189, 1991 Ohio LEXIS 912
CourtOhio Supreme Court
DecidedApril 3, 1991
DocketNo. 89-1900
StatusPublished
Cited by117 cases

This text of 569 N.E.2d 906 (Physicians Insurance v. Swanson) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Physicians Insurance v. Swanson, 569 N.E.2d 906, 58 Ohio St. 3d 189, 1991 Ohio LEXIS 912 (Ohio 1991).

Opinions

Alice Robie Resnick, J.

The issue presented in this case is the application of a provision in a contract of insurance excluding coverage for injuries expected or intended by the insured. We begin our analysis by reviewing the language of the two provisions involved.

The PICO insurance policy issued to appellants contains the following:

“Part I, Exclusions to Part G and Part H
“1. Part G, Personal Liability Coverage and Part H, Medical Payments to Others does [sic] not apply to bodily injury or properly damage:
“a) which is expected or intended by the insured[.]”

Appellants’ policy with Cincinnati states as follows:

“PART I—DEFINITIONS
“1. Personal Injury means:
“A. bodily harm * * * to others caused by an accident;
[191]*191“3. Accident means an event or series of unrelated events that unexpectedly, unintentionally and suddenly causes personal injury or property damage during the policy period.
“PART IV—WHAT IS NOT COVERED-EXCLUSIONS
“8. We will not cover Personal Injury or Property Damage caused intentionally.”

I

While the insurance policy issued by Cincinnati contains language different from that in the PICO policy, both policies are the same in effect: neither policy provides coverage for intentional or expected personal injuries caused by the insured. The difference is that one policy achieves this result by way of an express exclusion for such injuries (PICO), whereas the other policy does so by way of definition and an exclusion (Cincinnati). Since the effect of both policies is the same, we will treat the respective policy provisions in like manner.

Relying heavily on our decision in Gill, supra, the court of appeals concluded that both policies excluded coverage for the injury suffered by Todd Baker. When construing these policy provisions, the appellate court read Gill as focusing on the intentional nature of the act, rather than the result of the act, i.e., the injury. The court of appeals went on to note that the trial court specifically found that Bill intentionally fired the gun in the direction of Todd and the others at the picnic table. Thus, applying the above standard to the trial comb’s findings of fact and conclusions of law, the court of appeals held that the exclusions applied because the insured had acted intentionally.

In Gill, we held that “the insurer has no duty to defend or indemnify its insured where the insurer demonstrates in good faith in the declaratory judgment action that the act of the insured was intentional and therefore outside the policy coverage.” Id. at paragraph two of the syllabus. However, the fact pattern in Gill is markedly different from that of the present case. The insured in Gill had pleaded guilty to aggravated murder with specifications for killing an eleven-year-old girl. While applying a policy exclusion nearly identical to that in the PICO policy to that fact pattern, we stated, “* * * where the conduct which prompted the underlying wrongful death suit is so indisputably outside coverage, we discern no basis for requiring the insurance company to defend or indemnify its insured * * Id. at 113, 30 OBR at 428-429, 507 N.E. 2d at 1123. After noting that an essential element of aggravated murder is that the perpetrator intend to cause death, the Gill court concluded that “Kerri’s death was clearly ‘expected or intended by the insured’ and therefore the policy does not provide coverage for whatever personal liability Gill [the insured] may have.” Id. at 115, 30 OBR at 430, 507 N.E. 2d at 1124.

Thus, our holding that there was no coverage in Gill was premised on the facts that the insured intended to cause the injury of another person, and that this intent was conclusively established by the insured’s plea of guilty to aggravated murder. Stated otherwise, our decision was based on a finding that the insured intended to cause an injury, i.e., the death of an eleven-year-old girl. While Gill used language regarding the intentional act or conduct of the insured, Gill actually stands for the proposition that it is the resultant injury which must be intended for the exclusion to apply to deny coverage.

[192]*192II

Provisions contained in an insurance policy excluding intentional or expected injuries have been the subject of an extensive body of case law. See 12 Couch, Insurance (2 Ed. 1981) 184-193, Section 44A:133; Annotation, Construction and Application of Provision of Liability Insurance Policy Expressly Excluding Injuries Intended or Expected By Insured (1984), 31 A.L.R. 4th 957. Our current interpretation of GiU, is consistent with the majority rule that has emerged from the case law on this issue in other jurisdictions. In State Farm Mut. Auto. Ins. Co. v. Worthington (C.A. 8, 1968), 405 F. 2d 683, the insured had fatally wounded a young boy who he thought had tried to steal his watermelons. The insured had fired a .22 caliber rifle in an attempt to scare the young man. In holding that an intentional injury exclusion did not preclude coverage, the court stated that “[t]he preponderance of the evidence in this case indicates that while the discharge of the firearm was intentional the fatal wounding * * * was not intentional but accidental.” Id. at 686. The court went on to note that “[a]lmost all acts are intentional in one sense or another but many unintended results flow from intentional acts.” Id. at 688.

While interpreting an exclusion for “property damage caused intentionally by or at the direction of the insured,” the Supreme Court of Pennsylvania stated that “the vast majority of courts which have considered such a provision have reached the conclusion that before the insurer may disclaim liability, it must be shown that the insured intended by his act to produce the damage which did in fact occur. Annot., 2 A.L.R. 3d 1238 (1965). We subscribe to such a view. There is a very real distinction between intending an act and intending a result and the policy exclusion addresses itself quite clearly to the latter.” Eisenman v. Hornberger (1970), 438 Pa. 46, 49, 264 A. 2d 673, 674. The court concluded that while the insured intentionally had broken into the home of another to steal liquor, there was no evidence that a fire caused by the insured had been intentional. The insured minor boy had been using matches to see, and had dropped them as they burnt down to the stem. The court held that absent evidence of an intent to cause the resulting damage (in that case a fire), the exclusion was not applicable.

More recently, a federal court of appeals interpreting Florida law has stated that “* * * we believe the standard enunciated by the lower courts of Florida adheres to the majority rule with respect to ‘intentional injury’ exclusions. Under the majority rule the exclusion applies if the insured intended to do the particular act, and intended to do some harm ****** Qn the other hand, an ‘intentional injury’ exclusion will not apply if the insured intentionally does an act, but has no intent to commit harm, even if the act involves the foreseeable consequences of great harm or even amounts to gross or culpable negligence.”

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Cite This Page — Counsel Stack

Bluebook (online)
569 N.E.2d 906, 58 Ohio St. 3d 189, 1991 Ohio LEXIS 912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/physicians-insurance-v-swanson-ohio-1991.