[Cite as Tvergyak v. Rak, 2025-Ohio-2680.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOSEPH TVERGYAK, :
Plaintiff-Appellee, : No. 114513 v. :
THOMAS RAK, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: July 31, 2025
Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-22-965267
Appearances:
Collins, Roche, Utley & Garner, LLC and Eric K. Grinnell, for intervenor-appellee State Farm Mutual Insurance Company.
Jay F. Crook Attorney at Law, LLC, and Jay F. Crook, for appellant.
ANITA LASTER MAYS, J.:
{¶1} Defendant-appellant Thomas Rak (“Rak”) appeals the trial court’s
decision granting summary judgment to intervenor-appellee State Farm Mutual Automobile Insurance Company (“State Farm”). We affirm the trial court’s
decision.
{¶2} On May 3, 2022, Rak pleaded guilty to aggravated assault, a fourth-
degree felony, in violation of R.C. 2903.12(A)(1), and was sentenced to one- and
one-half years of community control, for striking Joseph Tvergyak (“Tvergyak”)
with his pickup truck. On the day of the incident, Rak and Tvergyak argued over
money that Rak loaned Tvergyak. Rak got into his pickup truck and began driving
away when Tvergyak threw a lawnmower at Rak’s truck. Rak turned his truck
around and drove towards Tvergyak, striking Tvergyak with the truck. Rak
claimed that a can of iced tea lodged under the brake pedal, preventing him from
stopping before striking Tvergyak. Rak was arrested and initially charged with two
counts of felonious assault and one count of attempted murder. Rak pleaded guilty
to amended Count 2, aggravated assault. Counts 1 and 3 were nolled.
{¶3} On June 24, 2022, Tvergyak filed a civil complaint against Rak alleging
that Rak’s actions caused Tvergyak injury and required him to seek medical care
that incurred expenses and caused him great physical pain, mental anguish, and
emotional distress. The summons and complaint were sent to Rak, who was
required to file his answer by September 30, 2022. Rak failed to answer the
complaint, and Tvergyak filed a motion for a default judgment. On October 31,
2022, the trial court granted Tvergyak’s motion and awarded him $545,840.00 in
damages. {¶4} On December 2, 2022, the trial court rendered a judgment lien against
Rak. On January 19, 2023, a motion for judgment debtor’s examination was filed
moving the trial court to order Rak to appear before the court for an examination
of his assets to satisfy the $545,840.00 judgment. On February 23, 2023, the trial
court granted the motion and ordered Rak to appear for a hearing. On June 13,
2023, Rak, through counsel, filed an answer to the complaint. In Rak’s answer, he
argued that Tvergyak failed to include all necessary parties and that the damages
claimed by the plaintiff must be apportioned among all liable parties, including
State Farm, Rak’s automobile insurance company.
{¶5} On September 1, 2023, State Farm filed an intervenor complaint
arguing that the exclusions contained within their policy precludes any duty to
defend or indemnify Rak’s claims. A liability coverage clause in State Farm’s policy
states: “There is no coverage for an insured who intentionally causes bodily injury
or damage to property.” On December 22, 2023, Rak filed his answer to State
Farm’s intervenor complaint stating, in part, that he admits he pleaded guilty to
aggravated assault but denies that any harm caused to Tvergyak was knowingly.
Rak further denied that his conviction for aggravated assault was equivalent to an
admission that any injury Tvergyak sustained was directly and proximately caused
by a knowing act.
{¶6} On April 1, 2024, State Farm filed a motion for summary judgment.
On July 2, 2024, the trial court granted State’s Farm motion for summary
judgment. On August 1, 2024, Rak filed an appeal in this court, and this court sua sponte dismissed the appeal for lack of a final appealable order because the
judgment failed to include Civ.R. 54(B) language. On October 2, 2024, the trial
court modified its earlier journal entry to include the necessary language and
stated in part:
Ohio public policy generally prohibits obtaining insurance to cover damages caused by intentional torts. Liability insurance does not exist to relieve wrongdoers of liability for intentional, antisocial, or criminal conduct. Consequently, most insurance policies contain an intentional-act exclusion stating that the insurance company will not be liable for harm intentionally caused by the insured. Cummings v. Lyles, 2015-Ohio-316, ¶ 14 (8th Dist.).
Journal Entry No. 186926063 (Oct. 2, 2024).
{¶7} Rak filed this appeal, assigning one error for our review:
The trial court erred in finding that Mr. Rak’s plea to one count of a violation of R.C. 2903.12(A)(1) was determinative of the issue of whether or not State Farm was entitled to relief from their duty to defend and indemnify under the intentional acts clause in the insurance contract.
I. Standard of Review
{¶8} We review the trial court’s grant of summary judgment de novo.
Warthog Mgmt. LLC v. Fares, 2024-Ohio-2065, ¶ 17 (8th Dist.). A party is entitled
to summary judgment pursuant to Civ.R. 56(C) if “the pleadings, depositions,
answers to interrogatories, written admissions, affidavits, transcripts of evidence,
and written stipulations of fact, if any, timely filed in the action, show that there is
no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” See Cummings at ¶ 11. {¶9} “The party moving for summary judgment bears the burden of
demonstrating that no material issues of fact exist for trial.” Edvon v. Morales,
2018-Ohio-5171, ¶ 17 (8th Dist.), citing Dresher v. Burt, 75 Ohio St.3d 280, 292
(1996). If that burden is met, then the nonmoving party has the burden to set forth
facts that there remain genuine issues of material fact precluding summary
judgment. Id.
II. Law and Analysis
{¶10} In Rak’s sole assignment of error, he argues that the trial court erred
in granting State Farm’s motion for summary judgment. Rak pleaded guilty to
aggravated assault, R.C. 2903.12, which is defined as follows:
No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly: Cause serious physical harm to another or to another’s unborn.
{¶11} Rak contends that knowingly causing serious physical harm, as
contained in the definition of aggravated assault, is different than intentionally
causing bodily harm, as contained in State Farm’s policy. Rak argues that because
of the differences, State Farm was not entitled to relief from their duty to defend
and indemnify under the intentional acts clause in the insurance contract.
{¶12} This court in Cummings addressed this identical argument. In
Cummings, the appellant argued, like Rak, that his admission to knowingly
causing serious physical harm did not exclude coverage pursuant to the insurance policy’s intentional-acts exclusion clause. Id. at ¶ 13. Similar to the decision in
Cummings, we disagree with Rak’s assertion.
{¶13} “‘Ohio public policy generally prohibits obtaining insurance to cover
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[Cite as Tvergyak v. Rak, 2025-Ohio-2680.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOSEPH TVERGYAK, :
Plaintiff-Appellee, : No. 114513 v. :
THOMAS RAK, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: July 31, 2025
Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-22-965267
Appearances:
Collins, Roche, Utley & Garner, LLC and Eric K. Grinnell, for intervenor-appellee State Farm Mutual Insurance Company.
Jay F. Crook Attorney at Law, LLC, and Jay F. Crook, for appellant.
ANITA LASTER MAYS, J.:
{¶1} Defendant-appellant Thomas Rak (“Rak”) appeals the trial court’s
decision granting summary judgment to intervenor-appellee State Farm Mutual Automobile Insurance Company (“State Farm”). We affirm the trial court’s
decision.
{¶2} On May 3, 2022, Rak pleaded guilty to aggravated assault, a fourth-
degree felony, in violation of R.C. 2903.12(A)(1), and was sentenced to one- and
one-half years of community control, for striking Joseph Tvergyak (“Tvergyak”)
with his pickup truck. On the day of the incident, Rak and Tvergyak argued over
money that Rak loaned Tvergyak. Rak got into his pickup truck and began driving
away when Tvergyak threw a lawnmower at Rak’s truck. Rak turned his truck
around and drove towards Tvergyak, striking Tvergyak with the truck. Rak
claimed that a can of iced tea lodged under the brake pedal, preventing him from
stopping before striking Tvergyak. Rak was arrested and initially charged with two
counts of felonious assault and one count of attempted murder. Rak pleaded guilty
to amended Count 2, aggravated assault. Counts 1 and 3 were nolled.
{¶3} On June 24, 2022, Tvergyak filed a civil complaint against Rak alleging
that Rak’s actions caused Tvergyak injury and required him to seek medical care
that incurred expenses and caused him great physical pain, mental anguish, and
emotional distress. The summons and complaint were sent to Rak, who was
required to file his answer by September 30, 2022. Rak failed to answer the
complaint, and Tvergyak filed a motion for a default judgment. On October 31,
2022, the trial court granted Tvergyak’s motion and awarded him $545,840.00 in
damages. {¶4} On December 2, 2022, the trial court rendered a judgment lien against
Rak. On January 19, 2023, a motion for judgment debtor’s examination was filed
moving the trial court to order Rak to appear before the court for an examination
of his assets to satisfy the $545,840.00 judgment. On February 23, 2023, the trial
court granted the motion and ordered Rak to appear for a hearing. On June 13,
2023, Rak, through counsel, filed an answer to the complaint. In Rak’s answer, he
argued that Tvergyak failed to include all necessary parties and that the damages
claimed by the plaintiff must be apportioned among all liable parties, including
State Farm, Rak’s automobile insurance company.
{¶5} On September 1, 2023, State Farm filed an intervenor complaint
arguing that the exclusions contained within their policy precludes any duty to
defend or indemnify Rak’s claims. A liability coverage clause in State Farm’s policy
states: “There is no coverage for an insured who intentionally causes bodily injury
or damage to property.” On December 22, 2023, Rak filed his answer to State
Farm’s intervenor complaint stating, in part, that he admits he pleaded guilty to
aggravated assault but denies that any harm caused to Tvergyak was knowingly.
Rak further denied that his conviction for aggravated assault was equivalent to an
admission that any injury Tvergyak sustained was directly and proximately caused
by a knowing act.
{¶6} On April 1, 2024, State Farm filed a motion for summary judgment.
On July 2, 2024, the trial court granted State’s Farm motion for summary
judgment. On August 1, 2024, Rak filed an appeal in this court, and this court sua sponte dismissed the appeal for lack of a final appealable order because the
judgment failed to include Civ.R. 54(B) language. On October 2, 2024, the trial
court modified its earlier journal entry to include the necessary language and
stated in part:
Ohio public policy generally prohibits obtaining insurance to cover damages caused by intentional torts. Liability insurance does not exist to relieve wrongdoers of liability for intentional, antisocial, or criminal conduct. Consequently, most insurance policies contain an intentional-act exclusion stating that the insurance company will not be liable for harm intentionally caused by the insured. Cummings v. Lyles, 2015-Ohio-316, ¶ 14 (8th Dist.).
Journal Entry No. 186926063 (Oct. 2, 2024).
{¶7} Rak filed this appeal, assigning one error for our review:
The trial court erred in finding that Mr. Rak’s plea to one count of a violation of R.C. 2903.12(A)(1) was determinative of the issue of whether or not State Farm was entitled to relief from their duty to defend and indemnify under the intentional acts clause in the insurance contract.
I. Standard of Review
{¶8} We review the trial court’s grant of summary judgment de novo.
Warthog Mgmt. LLC v. Fares, 2024-Ohio-2065, ¶ 17 (8th Dist.). A party is entitled
to summary judgment pursuant to Civ.R. 56(C) if “the pleadings, depositions,
answers to interrogatories, written admissions, affidavits, transcripts of evidence,
and written stipulations of fact, if any, timely filed in the action, show that there is
no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” See Cummings at ¶ 11. {¶9} “The party moving for summary judgment bears the burden of
demonstrating that no material issues of fact exist for trial.” Edvon v. Morales,
2018-Ohio-5171, ¶ 17 (8th Dist.), citing Dresher v. Burt, 75 Ohio St.3d 280, 292
(1996). If that burden is met, then the nonmoving party has the burden to set forth
facts that there remain genuine issues of material fact precluding summary
judgment. Id.
II. Law and Analysis
{¶10} In Rak’s sole assignment of error, he argues that the trial court erred
in granting State Farm’s motion for summary judgment. Rak pleaded guilty to
aggravated assault, R.C. 2903.12, which is defined as follows:
No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly: Cause serious physical harm to another or to another’s unborn.
{¶11} Rak contends that knowingly causing serious physical harm, as
contained in the definition of aggravated assault, is different than intentionally
causing bodily harm, as contained in State Farm’s policy. Rak argues that because
of the differences, State Farm was not entitled to relief from their duty to defend
and indemnify under the intentional acts clause in the insurance contract.
{¶12} This court in Cummings addressed this identical argument. In
Cummings, the appellant argued, like Rak, that his admission to knowingly
causing serious physical harm did not exclude coverage pursuant to the insurance policy’s intentional-acts exclusion clause. Id. at ¶ 13. Similar to the decision in
Cummings, we disagree with Rak’s assertion.
{¶13} “‘Ohio public policy generally prohibits obtaining insurance to cover
damages caused by intentional torts.’” Id. at ¶ 14, quoting Chiquita Brands
Internatl., Inc. v. Fed. Ins. Co., 2013-Ohio-759, ¶ 11 (1st Dist.). “‘Liability
insurance does not exist to relieve wrongdoers of liability for intentional, antisocial
or criminal conduct.’” Id., quoting id. “Consequently, most insurance policies
contain an intentional-act exclusion stating that the insurance company will not be
liable for harm intentionally caused by the insured.” Id., citing Allstate Ins. Co. v.
Campbell, 2010-Ohio-6312, ¶ 9.
{¶14} “‘A plea to a crime requiring a knowing state of culpability is sufficient
to invoke a policy exclusion for bodily injury expected or intended by the insured;
intent may be inferred from the criminal conviction itself.’” Id. at ¶ 15, quoting
Arrowood v. Grange Ins. Co., 2003-Ohio-4075, ¶ 31 (8th Dist.), citing Allstate Ins.
Co. v. Cole, 129 Ohio App.3d 334, 336 (9th Dist. 1998).
{¶15} “The ‘submission of a guilty plea to a criminal charge, for a crime of
which intent is an essential element, is strong enough proof so as to eliminate all
doubt as to whether an insured’s conduct would be deemed intentional for
purposes of an intentional act exclusion.’” Id. at ¶ 16, quoting Motorists Mut. Ins.
Co. v. Manning, 1997 Ohio App. LEXIS 3581, *8 (11th Dist. Aug. 8, 1997), citing
Preferred Risk Ins. Co. v. Gill, 30 Ohio St.3d 108, 115 (1987). {¶16} Similarly to the matter heard in State Farm Fire & Cas. Co. v.
Harpster, 2008-Ohio-3357 (8th Dist.), like Rak, the insured pleaded guilty to
aggravated assault. The insurance company denied coverage because of the guilty
plea and conviction. “Recognizing the precedents on this issue, this court affirmed
the summary judgment in favor of the insurance company.” Cummings at ¶ 18.
{¶17} “This district noted that all Ohio courts that have addressed the issue
have held that a criminal conviction, in and of itself, can establish intent for the
purposes of applying an intentional-acts exclusion when the insurance company
moves for summary judgment on that issue.” Harpster at ¶ 42, citing Westfield
Ins. v. Barnett, 2003-Ohio-6278 (7th Dist.); Nearor v. Davis, 118 Ohio App.3d 806
(1st Dist. 1997); Baker v. White, 2003-Ohio-1614 (12th Dist.); Adkins v. Ferguson,
2003-Ohio-403 (5th Dist.); Lingo v. State Farm Fire & Cas. Co., 1996 Ohio App.
LEXIS 5444 (8th Dist. Dec. 5, 1996).
{¶18} This court acknowledged in Harpster that although the offense of
aggravated assault requires an element of knowledge rather than intent, one who
commits aggravated assault — knowingly caused serious physical harm — does so
with a reasonable expectation that injury will occur. Harpster at ¶ 45. This court
concluded that by pleading guilty to aggravated assault, the insured admitted he
knowingly caused serious physical harm to the victim; in other words, the victim’s
injuries were both expected and intended. Harpster at ¶ 46.
{¶19} Reviewing the matter de novo, we likewise do not find Harpster or
Cummings distinguishable from our instant case. Because of the Rak’s guilty plea to aggravated assault, it was his burden to rebut the assumption of intent and to
create a triable issue of fact. Rak failed to set forth facts demonstrating that there
remain genuine issues of material fact precluding summary judgment.
{¶20} Therefore, Rak’s sole assignment of error is overruled.
{¶21} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
____________________________ ANITA LASTER MAYS, JUDGE
EMANUELLA D. GROVES, P.J., and DEENA R. CALABRESE, J., CONCUR