[Cite as Wright v. Larschied, 2014-Ohio-3772.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
MATTHEW WRIGHT, ET AL.,
PLAINTIFFS-APPELLEES, CASE NO. 1-14-02
v.
HARRY LEE LARSCHIED, INDIVIDUALLY AND D.B.A., HARRY’S HIDE A WAY & PATIO, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court Trial Court No. CV 2013 0100
Judgment Affirmed
Date of Decision: September 2, 2014
APPEARANCES:
Robert B. Fitzgerald for Appellant
Michael M. Neltner for Appellee, The Cincinnati Specialty Underwriters Insurance Company Case No. 1-14-02
PRESTON, J.
{¶1} Defendant-appellant, Harry Lee Larschied (“Larschied”), individually
and doing business as Harry’s Hide A Way & Patio (“Harry’s Hide A Way”),
appeals the judgment entry of the Allen County Court of Common Pleas granting
summary, declaratory judgment in favor of intervening plaintiff-appellee, The
Cincinnati Specialty Underwriters Insurance Company (“CSU”). In its judgment
entry, the trial court concluded that under the Commercial General Liability policy
issued by CSU to Larschied, policy number CSU0013833 (“CGL Policy”), CSU
did not have a duty to defend Larschied in a suit brought against Larschied and
others by two patrons of Harry’s Hide A Way, a bar owned and operated by
Larschied. For the reasons that follow, we affirm.
{¶2} On February 12, 2013, plaintiffs-appellees, brothers Matthew Wright
and Jeremy Wright (collectively, the “Wrights”), filed a “complaint for personal
injuries” against Larschied and ten John Does whose names were unknown to the
Wrights. (Doc. No. 1).1 The case was assigned case number CV 2013 0100.
(Id.). In their complaint, the Wrights alleged that they were “attacked and struck
by Patrons” at Harry’s Hide A Way, resulting in “severe injuries” that “required
significant medical treatment” on June 27 and 28, 2012. (Id., ¶ 11, 16). The
1 Unless otherwise noted, document references in this opinion are to case number CV 2013 0100.
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Wrights’ complaint contained three causes of action: “negligence,” “violation of
policy, practice or custom,” and “failure to supervise.” (Id.).
{¶3} On March 1, 2013, Larschied filed his answer to the Wrights’
complaint. (Doc. No. 3).
{¶4} On June 12, 2013, CSU filed a “complaint for declaratory judgment”
against Larschied, the Wrights, and the ten John Does whose names were
unknown to CSU. (Case No. CV 2013 0409, Doc. No. 1). The case was assigned
case number CV 2013 0409. (Id.). In its complaint, CSU sought a declaration that
under the CGL Policy, CSU had no duty to defend or indemnify Larschied as a
result of the allegations made by the Wrights in case number CV 2013 0100. (Id.).
{¶5} On August 8, 2013, Larschied filed his answer to CSU’s complaint.
(Case No. CV 2013 0409, Doc. No. 9).
{¶6} On September 18, 2013, the trial court granted CSU’s motion to
consolidate case number CV 2013 0409 with case number CV 2013 0100 and
ordered that all future filings be made in case number CV 2013 0100. (Case No.
CV 2013 0409, Doc. No. 11); (Doc. No. 34).
{¶7} On September 26, 2013, the Wrights filed their answer to CSU’s
complaint. (Doc. No. 36).
{¶8} On October 7, 2013, CSU filed a motion for summary judgment,
arguing that because the causes of action in the Wrights’ complaint stemmed from
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an assault and battery, an endorsement to the CGL Policy, titled “EXCLUSION –
ASSAULT OR BATTERY,” barred coverage. (Doc. No. 38); (CGL Policy, Doc.
No. 38, Ex. C, Ex. 1). Therefore, CSU argued, it had no duty to defend or
indemnify Larschied. (Id.).
{¶9} On December 12, 2013, Larschied filed his memorandum contra
CSU’s motion for summary judgment. (Doc. No. 51). In it, he argued that the
language of the assault-or-battery exclusion “is at best ambiguous as to whether
Mr. Lane’s [sic] claims are covered under the policy.” (Id.). Larschied also
argued that concluding the claims were not covered under the CGL Policy would
render the CGL Policy illusory. (Id.).
{¶10} On December 23, 2013, CSU filed its reply memorandum in support
of its motion for summary judgment. (Doc. No. 54).
{¶11} On January 9, 2014, the Wrights filed a “counter motion in summary
judgment,” opposing CSU’s motion for summary judgment and arguing that the
CGL Policy’s assault-or-battery exclusion did not apply to the Wrights’ causes of
action. (Doc. No. 58).
{¶12} On the morning of January 16, 2014, CSU filed a “memorandum in
support of motion for summary judgment and reply to counter motion of
plaintiffs.” (Doc. No. 59).
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{¶13} On the afternoon of January 16, 2014, the trial court filed its
judgment entry granting summary, declaratory judgment in favor of CSU. (Doc.
No. 60). In its judgment entry, the trial court reasoned that “[t]he assault-and-
battery exclusion in the endorsement obviated any duty on the part of the insurer
to defend against or to cover any damages that arose from this altercation at
Harry’s Hide A Way.” (Id.). The trial court also found, “pursuant to Civ. R.
54(B), that there is no just reason for delay.” (Id.).
{¶14} On February 10, 2014, Larschied filed his notice of appeal. (Doc.
No. 61). He raises two assignments of error for our review.
Assignment of Error No. I
The trial court erred in granting the plaintiff/appellee’s motion for summary judgment when it ruled that the assault or battery endorsement “obviated any duty on the part of the insurer to defend against or to cover any damages that arose from the subject altercation at Harry’s Hide A Way.” (See judgment entry of trial court filed Jan. 16, 2014, p. 6.)
{¶15} In his first assignment of error, Larschied argues that the trial court
erred when it concluded in its judgment entry granting summary, declaratory
judgment that CSU did not have a duty to defend Larschied in the Wrights’ suit
because the CGL Policy’s assault-or-battery exclusion barred coverage.
Specifically, Larschied argues that CSU has a duty to defend him because the
Wrights’ complaint alleges negligence against Larschied and because the Wrights’
allegations of “violation of policy, practice or custom” and “deliberate
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indifference to the rights of citizens” against Larschied are not expressly excluded
by the assault-or-battery exclusion.
{¶16} We review a decision to grant summary judgment de novo. Doe v.
Shaffer, 90 Ohio St.3d 388, 390 (2000). Summary judgment is proper where there
is no genuine issue of material fact, the moving party is entitled to judgment as a
matter of law, and reasonable minds can reach but one conclusion when viewing
the evidence in favor of the non-moving party, and the conclusion is adverse to the
non-moving party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist.
Bd. of Edn., 69 Ohio St.3d 217, 219 (1994).
{¶17} The issue presented by Larschied’s first assignment of error is
whether, based on the allegations in the Wrights’ complaint, CSU has a duty to
defend Larschied under the CGL Policy in the Wrights’ suit. The CGL Policy’s
“Commercial General Liability Coverage Form” (“CGL Coverage Form”)
explains the duties CSU owes to its insured. The “Insuring Agreement” set forth
in a subsection titled “COVERAGE A BODILY INJURY AND PROPERTY
DAMAGE LIABILITY” to “SECTION I – COVERAGES” of the CGL
Coverage Form provides, in part:
[CSU] will pay those sums that the insured becomes legally
obligated to pay as damages because of “bodily injury” or “property
damage” to which this insurance applies. [CSU] will have the right
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and duty to defend the insured against any “suit” seeking those
damages. However, [CSU] will have no duty to defend the insured
against any “suit” seeking damages for “bodily injury” or “property
damage” to which this insurance does not apply.
(Capital and bold emphasis sic.) (CGL Policy at CGL Coverage Form, 1).2
{¶18} The CGL Policy includes “endorsements” that add new provisions to
and modify, delete, and replace existing provisions of the CGL Coverage Form.
The assault-or-battery exclusion at issue in this case provides, in relevant part:
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE
READ IT CAREFULLY.
EXCLUSION – ASSAULT OR BATTERY
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE FORM
A. The following exclusion is added to Paragraph 2., Exclusions
of Section I – Coverage A – Bodily Injury And Property Damage
Liability and Paragraph 2., Exclusions of Section I – Coverage B –
Personal And Advertising Injury Liability:
a. This insurance does not apply to “bodily injury,” “property
damage” or “personal and advertising injury” arising out of:
2 The named insured under the CGL Policy is “Harry Larschied dba Harry’s Hideaway,” and the parties do not dispute that Larschied is an “insured” under the CGL Policy “with respect to the conduct of” Harry’s Hide A Way. (CGL Policy at Declarations and CGL Coverage Form, 9).
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(1) An actual or threatened assault or battery whether caused by or
at the instigation or direction of any insured, their employees,
patrons or any other person;
(2) The failure of any insured or anyone else for whom any insured
is legally responsible to prevent or suppress assault or battery; or
(3) The negligent:
(a) Employment;
(b) Investigation or reporting or failure to report any assault or
battery to proper authorities;
(c) Supervision;
(d) Training;
(e) Retention;
of a person for whom any insured is or ever was legally responsible
and whose conduct would be excluded by paragraph a. above.
B. For the purpose of this endorsement the words assault and battery
are intended to include, but are not limited to, sexual assault.
(Capital and bold emphasis sic.) (CGL Policy, Form CSGA 301 01 08).
{¶19} “‘An insurance policy is a contract whose interpretation is a matter of
law.’” King Estate v. Wachauf, 3d Dist. Auglaize No. 2-12-10, 2013-Ohio-2498,
¶ 8, quoting Cincinnati Ins. Co. v. CPS Holdings, Inc., 115 Ohio St.3d 306,
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2007-Ohio-4917, ¶ 7. “The coverage under an insurance policy is determined by
construing the contract ‘in conformity with the intention of the parties as gathered
from the ordinary and commonly understood meaning of the language
employed.’” Allstate Ins. Co. v. Eyster, 189 Ohio App.3d 640, 2010-Ohio-3673,
¶ 17 (3d Dist.), quoting King v. Nationwide Ins. Co., 35 Ohio St.3d 208, 211
(1988). “‘When the language of a written contract is clear, a court may look no
further than the writing itself to find the intent of the parties.’” Wachauf at ¶ 8,
quoting CPS Holdings, Inc. at ¶ 7. “A contract is unambiguous as a matter of law
if it can be given a definite legal meaning.” Id., citing CPS Holdings, Inc. at ¶ 7.
Ambiguity in an insurance policy is construed against the insurer and in favor of
the insured; however, a court will not apply this rule if it results in an unreasonable
interpretation of the words of the policy. Id. at ¶ 9, citing CPS Holdings, Inc. at
¶ 8.
{¶20} The duty of an insurer to defend an action against an insured is
broader than the duty to indemnify. Beaverdam Contracting v. Erie Ins. Co., 3d
Dist. Allen No. 1-08-17, 2008-Ohio-4953, ¶ 20, citing Ohio Govt. Risk Mgt. Plan
v. Harrison, 115 Ohio St.3d 241, 2007-Ohio-4948, ¶ 19. “The duty to defend
arises when a complaint alleges a claim that could be covered by the insurance
policy.” CPS Holdings, Inc. at ¶ 6, citing Sharonville v. Am. Emps. Ins. Co., 109
Ohio St.3d 186, 2006-Ohio-2180, ¶ 13. “The duty to defend is determined by the
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scope of the allegations in the complaint.” Ward v. United Foundries, Inc., 129
Ohio St.3d 292, 2011-Ohio-3176, ¶ 19, citing Harrison at ¶ 19.
{¶21} “‘[When] the complaint brings the action within the coverage of the
policy, the insurer is required to make the defense, regardless of the ultimate
outcome of the action or its liability to the insured.’” Beaverdam Contracting at ¶
20, quoting Motorists Mut. Ins. Co. v. Trainor, 33 Ohio St.2d 41 (1973), paragraph
two of the syllabus. “Even when the action is not clearly within the policy
coverage, but the allegations could arguably or potentially state a claim within the
policy coverage, the insurer still has a responsibility to defend the entire action.”
Id., citing Sanderson v. Ohio Edison Co., 69 Ohio St.3d 582, 586 (1994) and
Willoughby Hills v. Cincinnati Ins. Co., 9 Ohio St.3d 177 (1984).
{¶22} “However, where an insurance contract excludes coverage for the
claim against the insured, no duty to defend will arise.” Id. at ¶ 21, citing Zanco v.
Michigan Mut. Ins. Co., 11 Ohio St.3d 114, 116 (1984). “In such cases, there is no
duty to defend because the allegations in the pleadings fall squarely within an area
of activity specifically excluded from coverage.” Id., citing Zanco at 116. “Only
if there is no possibility of coverage under the policy based on the allegations in
the complaint will the insurer not have a duty to defend the action.” Id. at ¶ 20,
citing Erie Ins. Exchange v. Colony Dev. Corp., 136 Ohio App.3d 406, 413 (10th
Dist.1999).
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{¶23} “Furthermore, when an insurance contract contains exceptions to
coverage, there is a presumption that all coverage applies unless it is clearly
excluded in the contract.” Eyster, 189 Ohio App.3d 640, at ¶ 19, citing Bosserman
Aviation Equip., Inc. v. U.S. Liab. Ins. Co., 183 Ohio App.3d 29, 2009-Ohio-2526,
¶ 11 (3d Dist.). In other words, “an exclusion in an insurance policy will be
interpreted as applying only to that which is clearly intended to be excluded.”
(Emphasis sic.) Hybud Equip. Corp. v. Sphere Drake Ins. Co., Ltd., 64 Ohio St.3d
657, 665 (1992). “‘Accordingly, in order for an insurer to defeat coverage through
a clause in the insurance contract, it must demonstrate that the clause in the policy
is capable of the construction it seeks to give it, and that such construction is the
only one that can be fairly placed upon the language.’” Eyster at ¶ 19, quoting
Bosserman Aviation Equip., Inc. at ¶ 11.
{¶24} The allegations in the Wrights’ complaint are based on an alleged
incident in which they were “attacked and struck by Patrons” while at Harry’s
Hide A Way. Under the Wrights’ first count, “negligence,” they allege that
Larschied’s negligence, in multiple respects, resulted in the injuries the Wrights
sustained after being attacked and struck. Specifically, the Wrights allege in their
first count:
5. At all times relevant herein, Defendant Larschied and/or Harry’s
provided various services including, but not limited to, dispensing of
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alcoholic beverages for consumption and other social activities for
his patrons/invitees therein.
6. On June 27th and 28th 2012, Defendant Harry’s was open for
business to its patrons/invitees.
7. At all relevant times mentioned herein, Defendant Larschied
and/or Harry’s, his agents, apparent agents, employees, servants
and/or any other personnel involved in providing services to or
security on behalf of his patrons/invitees were acting within the
scope of their agency or employment.
8. At all times relevant on June 27th and 28th 2012, it was
foreseeable by the agents, apparent agents, employees, servants,
and/or any other personnel involved in providing services to or
security on behalf of the patrons of Defendant Larschied and/or
Harry’s that his patrons/invitees would be at risk for injury from
violent acts of third parties within his premises.
9. During the relevant time period on June 27th and 28th 2012,
Defendant Larschied and/or Harry’s, by and through his agents,
apparent agents, employees, servants, and/or any other personnel
involved in providing services to or security on behalf of the
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patrons/invitees knew or should have known that Plaintiffs were at
risk for injury.
10. Plaintiffs were at all times relevant herein invitees of Larschied
and/or Harry’s.
11. On or about February 27, 2012 [sic], Plaintiffs were attacked
and struck by Patrons (“Patrons”) while at Harry’s.
12. Plaintiffs’ attack by Patrons was unprovoked, as Plaintiffs did
not consent to Patrons’ conduct or being touched.
13. Defendant Larschied and/or Harry’s, his agents, apparent agents,
employees, servants and/or other personnel involved in providing
services to or security on behalf of his invitees had knowledge of
prior similar incidents that made the Patrons’ actions foreseeable.
14. At all relevant times mentioned herein, Defendant Larschied
and/or Harry’s had a duty to exercise ordinary care and provide a
safe hazard free environment for his patrons/invitees and to ensure
his patrons/invitees were not at risk for injury.
15. At all relevant times mentioned herein, Defendant Larschied
and/or Harry’s, through its agents, apparent agents, employees,
servants and/or any other personnel involved in providing services
to, or security on behalf of his patrons/invitees, including Plaintiffs,
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breached his duty and was negligent in one or more of the following
respects:
a. Failed to provide for the safety and security of his invitees,
including Plaintiffs, when he knew or should have known there was
a substantial risk of harm to his patrons/invitees, including Plaintiffs;
b. Failed to reasonably safeguard his invitees, including Plaintiffs,
from injury;
c. Failed to protect his invitees, including Plaintiffs, from criminal
acts of third parties;
d. Failed to provide adequate security on his premises to ensure
the safety and security of his invitees, including Plaintiffs;
e. Failed to exercise ordinary care in general and to Plaintiffs.
[sic]
f. Failed to comply with applicable laws set forth by the State of
Ohio and the City of Lima and the regulations promulgated therein
for business establishments similar to that of Harry’s;
g. Was otherwise careless and negligent.
16. As a direct and proximate result of one or more of the aforesaid
negligent and careless acts and/or omissions by the Defendant
Larschied and/or Harry’s, Plaintiffs Matthew and Jeremy Wright
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sustained severe injuries which required significant medical
treatment on June 27th and June 28th 2012.
(Doc. No. 1). Under their second count, “violation of policy, practice or custom,”
the Wrights allege that Larschied failed to implement and train his employees
concerning “policies, practices, and customs to protect the rights of citizens.”
Specifically, the Wrights allege in their second count:
18. Defendant Larschied, as owner and operator of Harry’s, has
developed and maintained policies, practices, and customs
demonstrating a deliberate indifference to the rights of citizens.
19. Defendant Larschied, as owner and operator of Harry’s, has
failed to implement policies, practices, and customs to protect the
rights of citizens. As a result, the employees working security at
Harry’s have been inadequately trained in the proper duty of care
owed to patrons.
20. Such policies, practices and customs have caused Plaintiffs to
suffer a loss of their right to be free from assault and battery
committed against him [sic] and resultant physical injury by
Defendants John Does 1 through 10, inclusive.
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(Id.). Under their third count, “failure to supervise,” the Wrights allege that
Larschied failed to “guard against the conduct of Patrons.” Specifically, the
Wrights allege in their third count:
24. Defendant Larschied, as owner and operator of Harry’s, knew,
or in the exercise of due diligence should have known, that the
conduct of Patrons was likely to occur.
25. Defendant Larschied, as owner and operator of Harry’s, failed to
take any preventative or remedial measures to guard against the
conduct of Patrons.
26. Defendant Larschied’s failure to take preventative measures
deprived Plaintiffs of their right to be free from an unreasonable
seizure, assault and battery committed against him [sic] by Patrons.
(Id.).
{¶25} In support of his argument that CSU has a duty to defend him under
the CGL Policy, Larschied argues that the Wrights’ “negligence” allegation is
covered by the CGL Policy. He also argues that the Wrights’ “violation of policy,
practice or custom” and “deliberate indifference to the rights of citizens”
allegations are not allegations of “assault or battery,” nor are they expressly
excluded by the CGL Policy. In other words, the allegations against Larschied are
not assault or battery—rather, the allegations against him include “negligence,”
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“violation of policy, practice or custom,” and “deliberate indifference to the rights
of citizens.” Therefore, Larschied argues, based on the Wrights’ allegations
against him, the assault-or-battery exclusion does not bar coverage, and CSU has a
duty to defend him in the Wrights’ suit.
{¶26} CSU argues, on the other hand, that it is clear from the allegations in
the Wrights’ complaint that their suit stems from an assault or battery, in which
case there is no coverage based on the CGL Policy’s assault-or-battery exclusion.
In other words, the assault-or-battery exclusion is not concerned with the specific
claims and allegations against Larschied so long as those claims and allegations
arise out of an assault or battery. Therefore, CSU argues, because the counts and
allegations against Larschied—however phrased—stem from, or arise out of, an
assault or battery at Harry’s Hide A Way, the CGL Policy’s assault-or-battery
exclusion excludes coverage, and CSU has no duty to defend Larschied.
{¶27} One provision of the assault-or-battery exclusion, Section A.a.(1), is
dispositive in this case. That portion of the exclusion states that insurance under
the CGL Policy “does not apply to ‘bodily injury,’ * * * arising out of * * * [a]n
actual or threatened assault or battery * * *.” (CGL Policy, Form CSGA 301 01
08). The CGL Policy defines “bodily injury” as “bodily injury, sickness or disease
sustained by a person, including death resulting from any of these at any time.”
(CGL Policy at CGL Coverage Form, 13). The CGL Policy does not define
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“arising out of,” “assault,” or “battery,” among other terms in the assault-or-
battery exclusion. The phrase “arising out of” suggests the necessity for a causal
relationship or causal connection. See Penn Traffic Co. v. AIU Ins. Co., 99 Ohio
St.3d 227, 2003-Ohio-3373, ¶ 41; Westfield Ins. Co. v. Hunter, 128 Ohio St.3d
540, 2011-Ohio-1818, ¶ 20. The tort of “assault is the willful threat or attempt to
harm or touch another offensively, which threat or attempt reasonably places the
other in fear of such contact.” Stafford v. Columbus Bonding Ctr., 177 Ohio
App.3d 799, 2008-Ohio-3948, ¶ 15 (10th Dist.), citing Smith v. John Deere Co.,
83 Ohio App.3d 398, 406 (10th Dist.1993). See also Hilgefort v. Stewart, 3d Dist.
Shelby No. 17-10-13, 2011-Ohio-253, ¶ 12. “Battery is an intentional contact with
another that is harmful or offensive.” Stafford at ¶ 15, citing Love v. Port Clinton,
37 Ohio St.3d 98, 99 (1988). See also Hilgefort at ¶ 12.
{¶28} Therefore, the assault-or-battery exclusion clearly and
unambiguously excludes from coverage injury to one’s person (i.e. “bodily
injury”) resulting from (i.e. “arising out of”) an actual or threatened assault or
battery. The assault-or-battery exclusion applies to any bodily injury arising out
of an assault or battery. It does not matter, for example, how the assault or battery
occurred or who may or may not have contributed to its occurrence. See Carter v.
Adams, 173 Ohio App.3d 195, 2007-Ohio-4322, ¶ 28-29 (1st Dist.). At most, the
second phrase of Section A.a.(1) of the assault-or-battery exclusion—“whether
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caused by or at the instigation or direction of any insured, their employees, patrons
or any other person”—simply “amplifies” the broad exclusion of any bodily injury
arising out of an actual or threatened assault or battery. Monticello Ins. Co. v.
Hale, 114 Fed.Appx. 198, 203-204 (6th Cir.2004). See also Colter v. Spanky’s
Doll House, 2d Dist. Montgomery No. 21111, 2006-Ohio-408, ¶ 48-62, citing
Hale.
{¶29} Like the second phrase of Section A.a.(1) of the assault-or-battery
exclusion, Section A.a.(2) at best “amplifies” the broad exclusion found in the first
phrase of Section A.a.(1). Section A.a.(2) states that insurance under the CGL
Policy “does not apply to ‘bodily injury,’ * * * arising out of * * * [t]he failure of
any insured or anyone else for whom any insured is legally responsible to prevent
or suppress assault or battery * * *.” (CGL Policy, Form CSGA 301 01 08).
When the allegations in a claimant’s complaint make clear that the cause of the
injuries for which the claimant is seeking damages is an assault or battery,
coverage under the CGL Policy is barred because the excluded act of assault and
battery caused the claimant’s injuries. See Carter at ¶ 29 (“Even though the
complaint contained allegations of negligent hiring, failure to warn, and failure to
provide adequate security, coverage under the policy was barred because the
excluded act of assault and battery was the immediate cause of the injuries that
gave rise to the allegations of negligence.”). See also Hale at 203-204. In other
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words, based on the CGL Policy’s broad exclusion of any bodily injury arising out
of an actual or threatened assault or battery, whether the insured failed to prevent
or suppress an assault or battery is irrelevant if the claimant is attempting to
recover for injuries caused by the assault or battery. See Colter at ¶ 41 (“[The
assault-or-battery exclusion’s] plain language precludes coverage for any bodily
injury claim or suit arising out of or related to any assault or battery. We see no
ambiguity in this language.” (Emphasis sic.)).
{¶30} In their complaint, the Wrights allege that they “sustained severe
injuries which required significant medical treatment on June 27th and June 28th
2012.” (Doc. No. 1, ¶ 16). They allege that they sustained these injuries when
they “were attacked and struck by Patrons (“Patrons”) while at Harry’s.” (Id., ¶
11). The Wrights also allege that the “attack by Patrons was unprovoked, as
Plaintiffs did not consent to Patrons’ conduct or being touched.” (Id., ¶ 12). At no
fewer than two points in their brief, the Wrights refer to the “assault and battery”
committed against them by patrons at Harry’s Hide A Way. (Id., ¶ 20, 26). Based
on these allegations, it is clear that the Wrights are attempting to collect damages
for bodily injuries arising from assault or battery. Therefore, the assault-or-battery
exclusion clearly and unambiguously excludes from coverage the Wrights’ claims.
{¶31} Because the Wrights are attempting to recover for injuries sustained
by assault or battery, their claims against Larschied—that he failed to provide for
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their safety and protect them from criminal acts of third parties, that his policies,
practices, and customs demonstrated “a deliberate indifference to the rights of
citizens,” that he failed to implement policies, practices, and customs to protect the
rights of citizens, and that he inadequately trained his employees—are excluded
under the CGL Policy. The Wrights in their suit could have asserted any claim
they wished against Larschied, and it still would have been excluded by the
assault-or-battery exclusion so long as the Wrights were attempting to recover for
injuries arising out of assault or battery.
{¶32} For these reasons, we hold that CSU has no duty to defend Larschied
in the Wrights’ suit because the CGL Policy’s assault-or-battery exclusion clearly
and unambiguously excludes from coverage the claims in the Wrights’ complaint.
There is no possibility of coverage under the CGL Policy based on the allegations
in the Wrights’ complaint.
{¶33} Larschied’s first assignment of error is overruled.
Assignment of Error No. II
The trial court in finding that the insurance policy did not provide coverage effectively created an illusory contract as it fails to provide any benefit to the insured.
{¶34} In his second assignment of error, Larschied argues that the trial
court’s conclusion that the CGL Policy does not apply to the allegations in the
Wrights’ complaint “in essence creates an illusory insurance policy.” (Appellant’s
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Brief at 11). Specifically, Larschied argues that “[t]he number and breadth of
Endorsements attached and included within CSU’s policy to Mr. Larschied have
stripped away practically all coverage Mr. Larschied may have.” (Id. at 12).
{¶35} “An insurance provision is illusory when it appears to grant a benefit
to the insured, although in reality it does not.” Trautman v. Union Ins. Co., 3d
Dist. Hancock No. 5-09-34, 2010-Ohio-1504, ¶ 20, citing Beaverdam Contracting,
2008-Ohio-4953, at ¶ 49. Conversely, “[w]here there is some benefit to an insured
through an insurance policy, it is not illusory.” World Harvest Church v. Grange
Mut. Cas. Co., 10th Dist. Franklin No. 13AP-290, 2013-Ohio-5707, ¶ 53, citing
Ward, 129 Ohio St.3d 292, at ¶ 24. “Courts are not inclined to give insurance
provisions a meaning that would render them illusory.” Beaverdam Contracting at
¶ 49, citing GNFH, Inc. v. W. Am. Ins. Co., 172 Ohio App.3d 127,
2007-Ohio-2722, ¶ 133 (2d Dist.) and Talbert v. Continental Cas. Co., 157 Ohio
App.3d 469, 2004-Ohio-2608, ¶ 36 (2d Dist.).
{¶36} In this case, the assault-or-battery exclusion and the other
endorsements to the CGL Policy do not render the CGL Policy illusory. Rather,
“[CSU] will pay those sums that the insured becomes legally obligated to pay as
damages because of ‘bodily injury’ or ‘property damage’ to which this insurance
applies.” (CGL Policy at CGL Coverage Form, 1). CSU has provided at least one
example of a “bodily injury” to which coverage would apply: “if a patron were to
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slip and fall at the premises and sue Harry’s, CSU would provide a defense (and
under the right facts if Harry’s acts were not intentional, indemnity) to Harry’s for
its negligence.” (Appellee’s Brief at 13). We agree that a claim arising out of
those circumstances, as well as other circumstances, would fall within the
coverage of the CGL Policy. (CGL Policy at CGL Coverage Form). Therefore,
we hold that because the CGL Policy provides some benefit to Larschied, it is not
illusory.
{¶37} Larschied’s second assignment of error is overruled.
{¶38} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
ROGERS and SHAW, J.J., concur.
/jlr
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