[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Hoyle v. DTJ Ents., Inc., Slip Opinion No. 2015-Ohio-843.] NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published. SLIP OPINION NO. 2015-OHIO-843 HOYLE, APPELLEE; THE CINCINNATI INSURANCE COMPANY, APPELLANT, v. DTJ ENTERPRISES, INC., ET AL., APPELLEES. [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Hoyle v. DTJ Ents., Inc., Slip Opinion No. 2015-Ohio-843.] Employer intentional torts—Exclusion from liability insurance coverage—R.C. 2745.01—Presumption of intent to injure. (No. 2013-1405—Submitted June 10, 2014—Decided March 12, 2015.) APPEAL from the Court of Appeals for Summit County, Nos. CA-26579 and CA-26587, 2013-Ohio-3223. ______________________ SYLLABUS OF THE COURT An insurance provision that excludes coverage for acts committed with the deliberate intent to injure an employee precludes coverage for employer intentional torts, which require a finding that the employer intended to injure the employee.
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[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Hoyle v. DTJ Ents., Inc., Slip Opinion No. 2015-Ohio-843.]
NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
other formal errors in the opinion, in order that corrections may be
made before the opinion is published.
SLIP OPINION NO. 2015-OHIO-843
HOYLE, APPELLEE; THE CINCINNATI INSURANCE COMPANY,
APPELLANT, v. DTJ ENTERPRISES, INC., ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Hoyle v. DTJ Ents., Inc., Slip Opinion No. 2015-Ohio-843.]
Employer intentional torts—Exclusion from liability insurance coverage—R.C.
2745.01—Presumption of intent to injure.
(No. 2013-1405—Submitted June 10, 2014—Decided March 12, 2015.)
APPEAL from the Court of Appeals for Summit County,
Nos. CA-26579 and CA-26587, 2013-Ohio-3223.
______________________
SYLLABUS OF THE COURT
An insurance provision that excludes coverage for acts committed with the
deliberate intent to injure an employee precludes coverage for employer
intentional torts, which require a finding that the employer intended to
injure the employee.
SUPREME COURT OF OHIO
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FRENCH, J.
{¶ 1} This appeal presents questions regarding the insurability of
employer intentional torts under R.C. 2745.01. We hold that an insurance
provision that excludes coverage for acts committed with the deliberate intent to
injure an employee precludes coverage for employer intentional torts, which
require a finding that the employer intended to injure the employee.
Factual Background
{¶ 2} Appellee, Duane Allen Hoyle, brought this action to recover for
injuries he sustained when he fell from a ladder-jack scaffold while working as a
carpenter on a construction project for his employers, appellees, DTJ Enterprises,
Inc. (“DTJ”) and Cavanaugh Building Corporation (“Cavanaugh”). Hoyle
describes a ladder-jack scaffold as an apparatus consisting of two extension
ladders positioned vertically, with a horizontal walkway platform supported by
brackets spanning the space between them. Ladder jacks are the brackets that
support the platform. Webster’s Third New International Dictionary 1262 (3d
Ed.1993). They are generally secured to the ladder with a bolt or pin that goes
though the ladder jack and is secured in back by a nut.
{¶ 3} Phillip L. Colleran, a certified safety professional and professional
member of the American Society of Safety Engineers who executed an expert
affidavit on Hoyle’s behalf, states that, for worker safety, each ladder-jack bracket
must be secured to the ladder and the platform must be secured to each bracket.
When Hoyle assembled the ladder-jack scaffold on this project, however, he did
not have the bolts or pins to secure the ladder jacks to the ladders. Hoyle claims
that the job superintendent, Kevin Everett, kept the bolts in his office and told
employees they did not need them because they take too much time to use.
{¶ 4} On March 25, 2008, Hoyle fell approximately 14 feet from the
ladder-jack scaffold and landed on a concrete pad. Just before his fall, Hoyle
stepped onto a portion of the platform that extended past the ladder jack on one
January Term, 2015
3
end, causing the ladder jack on the opposite end to lift and detach from its ladder.
As Hoyle moved back toward the center, the detached ladder jack lowered, but
missed the rungs of the ladder and pushed the ladder outward. The ladder and
Hoyle fell to the concrete below.
{¶ 5} Hoyle sued DTJ and Cavanaugh in the Summit County Court of
Common Pleas, alleging claims of employer intentional tort. Appellant, the
Cincinnati Insurance Company (“CIC”), which insured DTJ and Cavanaugh under
a commercial general liability (“CGL”) policy, intervened and filed a complaint
for a declaratory judgment that it has no obligation to indemnify DTJ and
Cavanaugh for Hoyle’s injuries.1 The only issue before us in this appeal is
whether CIC has a duty to indemnify DTJ and Cavanaugh should Hoyle prevail
on his employer-intentional-tort claims.
{¶ 6} Unlike the broader duty to defend, an insurer’s duty to indemnify
its insureds is based on whether there is, in fact, actual liability. Chemstress
Consultant Co., Inc. v. Cincinnati Ins. Co., 128 Ohio App.3d 396, 402, 715
N.E.2d 208 (9th Dist.1998). Before turning to the language of the CIC policy and
the procedural history of this case, we first briefly examine the history and scope
of civil liability for employer intentional torts in Ohio.
Employer Intentional Torts
{¶ 7} Because of the immunity conferred by R.C. 4123.74 and Article II,
Section 35, Ohio Constitution, for the vast majority of workplace injuries, a
workers’ compensation claim is an employee’s exclusive remedy. See generally
Van Fossen v. Babcock & Wilcox Co., 36 Ohio St.3d 100, 110, 522 N.E.2d 489
(1988). But when an employee seeks damages resulting from an act or omission
committed by the employer with the intent to injure, the claim arises outside of
the employment relationship, and the workers’ compensation system does not
preempt the employee’s cause of action. Brady v. Safety-Kleen Corp., 61 Ohio 1 CIC does not dispute its obligation to defend DTJ and Cavanaugh against Hoyle’s claims.
SUPREME COURT OF OHIO
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St.3d 624, 576 N.E.2d 722 (1991), paragraph one of the syllabus. This court first
recognized an employee’s right to sue his or her employer for an intentional tort
in Blankenship v. Cincinnati Milacron Chems., Inc., 69 Ohio St.2d 608, 433
N.E.2d 572 (1982), syllabus. We reasoned that extending the immunity afforded
to employers by the workers’ compensation system to intentional torts would not
further the legislative goals underlying the Workers’ Compensation Act:
“Affording an employer immunity for his intentional behavior certainly would not
promote [a safe and injury-free work environment], for an employer could
commit intentional acts with impunity with the knowledge that, at the very most,
his workers’ compensation premiums may rise slightly.” Id. at 615.
{¶ 8} An intentional tort involves an act committed with the specific
intent to injure or with the belief that injury is substantially certain to occur.
Jones v. VIP Dev. Co., 15 Ohio St.3d 90, 95, 472 N.E.2d 1046 (1984), citing 1
Restatement of the Law 2d, Torts, Section 8A (1965). When the employer
proceeds despite knowledge that injuries are certain or substantially certain to
result, “he is treated by the law as if he had in fact desired to produce the result.”
Fyffe v. Jeno’s, Inc., 59 Ohio St.3d 115, 118, 570 N.E.2d 1108 (1991). Under
Fyffe, an employee could establish intent based on substantial certainty by
demonstrating the following:
(1) knowledge by the employer of the existence of a dangerous
process, procedure, instrumentality or condition within its business
operation; (2) knowledge by the employer that if the employee is
subjected by his employment to such dangerous process,
procedure, instrumentality or condition, then harm to the employee
will be a substantial certainty; and (3) that the employer, under
such circumstances, and with such knowledge, did act to require
the employee to continue to perform the dangerous task.
January Term, 2015
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Id.
{¶ 9} R.C. 2745.01, which now governs employer intentional torts in
Ohio, took effect on April 7, 2005, and provides as follows:
(A) In an action brought against an employer by an
employee * * * for damages resulting from an intentional tort
committed by the employer during the course of employment, the
employer shall not be liable unless the plaintiff proves that the
employer committed the tortious act with the intent to injure
another or with the belief that the injury was substantially certain
to occur.
(B) As used in this section, “substantially certain” means
that an employer acts with deliberate intent to cause an employee
to suffer an injury, a disease, a condition, or death.
(C) Deliberate removal by an employer of an equipment
safety guard * * * creates a rebuttable presumption that the
removal * * * was committed with intent to injure another if an
injury or an occupational disease or condition occurs as a direct
result.
R.C. 2745.01 passes constitutional muster, Kaminski v. Metal & Wire Prods. Co.,
{¶ 12} R.C. 2745.01(C) permits an employee to prove the employer’s
intent without direct evidence. When the employee is injured as a direct result of
the employer’s deliberate removal of an equipment safety guard,2 R.C.
2745.01(C) creates a rebuttable presumption that the employer intended to injure.
2 This court has previously addressed the definition of “equipment safety guard.” Hewitt v. L.E. Myers Co., 134 Ohio St.3d 199, 2012-Ohio-5317, 981 N.E.2d 795. But the question whether the pins that might have been used to secure the ladder jacks qualify as equipment safety guards is not before this court.
January Term, 2015
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It “is not a separate tort, it merely provides a legally cognizable example of ‘intent
to injure.’ ” Irondale Indus. Contractors, Inc. v. Virginia Sur. Co., Inc., 754
F.Supp.2d 927, 933 (N.D.Ohio 2010). The Irondale court rejected the suggestion
that R.C. 2745.01(C) permits liability without a finding of intent to cause injury.
Hoyle’s Claims
{¶ 13} In his complaint, Hoyle alleged that DTJ and Cavanaugh “acted
with deliberate intent (under R.C. §2745.01) to cause injury” and that their actions
“constitute[d] or [were] equivalent to the ‘deliberate removal by an employer of
an equipment safety guard’ as set forth in R.C. §2745.01.” DTJ and Cavanaugh
moved for summary judgment on Hoyle’s claims, arguing that he could not prove
that they acted with intent to injure or that injury was substantially certain.
{¶ 14} The trial court granted partial summary judgment in favor of DTJ
and Cavanaugh “[t]o the extent that [Hoyle’s] claims rely on R.C. 2745.01(A) &
(B) alone” because Hoyle “provide[d] no evidence that the Defendants acted with
a specific intent to injure” him. But the trial court stated that its decision “does
not apply” to the extent that Hoyle’s cause of action relies upon R.C. 2745.01(C),
which “necessarily include[s] the ‘intent to injure.’ ” The trial court found
genuine issues of material fact as to whether the pins normally used to secure the
ladder jacks constitute an equipment safety guard and whether DTJ and/or
Cavanaugh deliberately removed them. Thus, the trial court has not finally