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Westfield Insurance v. Barnett11/17/2003
d murder. An essential element of that crime is that the perpetrator intended to cause the death. See R.C. 2903.01(D). Kerri's death was clearly 'expected or intended by the insured' and therefore the policy does not provide coverage for whatever personal liability Gill may have. Since appellee did not agree in the insurance contract to defend Gill against any claim alleging facts within coverage, even if groundless, false or fraudulent, but only against claims "to which this coverage applies," appellee has no duty to defend Gill in the underlying wrongful death claim. It follows that appellee has no obligation to indemnify Gill in the event of an adverse judgment, since the act was indisputably intentional and outside coverage. The trial court correctly granted summary judgment to appellee on the underlying wrongful death claim." Id. at 115.
. The same held true for the parents' claim in Gill for serious emotional distress.
. "The behavior of the insured after the murder, even if he were operating under amnesia, had its origin in a clearly intentional course of conduct (i.e., the murder) and is so inextricably entwined in time and purpose with the intentional acts leading to the murder, and the murder itself, that it cannot fairly be said to be within coverage. The parties to the insurance agreement cannot be imagined to have contemplated that such conduct would be subject to coverage. This court is not prepared to impose on this insurer a duty to defend or indemnify against this conduct by this insured which was clearly not meant to be within the scope of agreed coverage." Id.
. The Ohio Supreme Court reiterated this conclusion in Physicians Ins. Co. v. Swanson (1991), 58 Ohio St.3d 189, where it described Gill's holding. " ur 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." (Emphasis added) Id. at 191.
. In this case, the Barnetts were convicted of assault which is defined as knowingly causing or attempting to cause physical harm or recklessly causing serious physical harm to another or to another's unborn. R.C. 2903.13(A), (B). A person acts knowingly when, regardless of his purpose, he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. R.C. 2901.22(B). A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. R.C. 2901.22(C). Since a conviction involving the element of recklessness is sufficient to trigger an intentional act exclusion, a conviction involving the element of knowingly would too.
. At oral argument, the Barnetts argue their actions were negligent in spite of their convictions since R.C. 2903.13(A) defines assault as causing or attempting to cause physical harm. They contend that an attempt to cause physical harm would be evidence of negligence while contending that causing physical harm would be evidence of intent. This argument is meritless since causing or attempting to cause physical harm is only assault if it is done knowingly. See R.C. 2903.13(A). Regardless of whether the Barnetts caused or attempted to cause physical harm, they did so with the same intent.
. In this case, the Barnetts were convicted for assaulting Cobb, an offense that involves the elements of acting either knowingly or recklessly. The Cobbs filed suit against them alleging they intentionally hurt him. Their policy with Westfield excludes coverage for any i
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