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Westfield Insurance v. Barnett11/17/2003
hio St.3d 65, 67-68.
. The Barnetts contend that the incident was an accident because it was "unforeseen, unexpected, unusual, extraordinary, or phenomenal." They then claim that their claim does not fall under the intentional acts exclusion since Westfield cannot prove they expected or intended the injury they inflicted. In making this argument, the Barnetts do not ignore the fact that they have been convicted of assaulting Cobb. Instead, they use this fact to plead for coverage, arguing they "have paid their debt to society, at the cost of their pride and personal health." What they do ignore is the effect their criminal conviction has on their ability to argue that they did not intentionally cause bodily harm to Cobb.
. The Barnetts' insurance policy with Westfield provides coverage if a claim or suit for damages because of bodily injury or property damage is caused by an occurrence. An "occurrence" is defined as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions which results, during the policy period, in [bodily injury or property damage]." Coverage is specifically excluded to injuries "expected or intended by the insured."
. All Ohio courts which have specifically 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. See Allstate Ins. Co. v. Cole (1998), 129 Ohio App.3d 334; Nearor v. Davis (1997), 118 Ohio App.3d 806; Baker v. White, 12th Dist. No. 2002-08-065, 2003-Ohio-1614; Adkins v. Ferguson, 5th Dist. No. 02 CA 34, 2003-Ohio-403; Lingo v. State Farm Fire & Cas. Co. (Dec. 5, 1996), 8th Dist. Nos. 69514, 70753. This applies even when the insured has been convicted of an offense involving the element of recklessness. Cole at 336; Steinke v. Allstate Ins. Co. (1993), 86 Ohio App.3d 798, 803-804. In each of these cases, the insurer argued on summary judgment that it had no duty to defend the insured since the insured had been convicted of a criminal act which included intent as an element of the offense and that criminal act gave rise to the underlying civil suit. In each of these cases, the trial court granted summary judgment to the insurer and that decision was affirmed on appeal.
. The Ohio Supreme Court held as such in Preferred Risk Ins. Co. v. Gill (1987), 30 Ohio St.3d 108. In Gill, the insured killed a young child and concealed her body in the garage of his home. He then joined in organized searches for the girl and did not reveal her whereabouts until the body was discovered the next day. He was later tried and convicted for the murder of the girl and sentenced to life in prison. Subsequently, the child's parents filed a wrongful death action against Gill. He had a homeowner's policy through Preferred Risk and notified it of the wrongful death claim. The company then filed an action for declaratory judgment and moved for summary judgment, arguing it had no duty to defend or indemnify Gill. The trial court granted that motion and the appellate court affirmed that decision.
. The Ohio Supreme Court affirmed the court of appeals' decision, finding that Gill's actions were excluded from coverage under the policy's intentional act exclusion provision.
. "In the instant cause, appellee demonstrated to the trial court that the conduct which was the subject of the wrongful death action was intentional, rather than negligent as alleged in the underlying complaint. This was established beyond dispute through evidence that Gill's action in killing Kerri resulted in his criminal conviction for aggravate
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