Assault & Battery - Duty To Defend

Second District Court of Appeals Holds That Stop-Gap Endorsement Contained In Commercial General Liability Policy Provides Coverage For "Substantially Certain" Claims Including Assault and Battery

Read the Case: GNFH, Inc. v. West American Insurance Co. (2007), 172 Ohio App.3d 127

In the Trial Court: The trial granted summary judgment against the insured on the issue of whether appellee, an insurance company, had a duty to defend appellants with regard to an intentional tort claim. The trial court found that the acts alleged in the complaint were sexual harassment and sexual battery torts. The Trial Court classified the claims as “direct intent” torts, which are precluded by public policy in Ohio from being covered by insurance.

In the Court of Appeals: The appellate court held that a duty to defend did exist for the claims of assault and battery under two of the three policies discussed. The Second District Court of Appeals reasoned as follows:

Under the most recent public policy pronouncement of the Ohio Supreme Court, intentional acts that result in injury are not necessarily “direct intent” torts, and insurance in such cases is not against public policy. Some allegations in the underlying complaint involved negligent conduct, which would not require direct intent to harm. Moreover, the conduct that might be classified as criminal in nature, like assault, is not a direct or specific intent crime. Specific or direct intent is also not required to establish sexual imposition. For example, R.C. 2907.06(A)(1) prohibits sexual contact where the offender knows the contact is offensive to the other person or is reckless in that regard. Therefore, coverage was not automatically precluded on the basis of public policy.

Whether coverage exists depends on the language used in the policies. The appellate court held that allegations in the complaint raise a duty to defend under two of the three insurance policies under review. One “Stop-Gap” liability endorsement specifically provides coverage for bodily injury claims which are substantially certain to occur, but are not directly intended. While a second “Stop-Gap” liability endorsement excludes coverage for bodily injury that is “expected or intended” by the insured. However, the court opined that excluding coverage for a “substantial certainty” tort would render the endorsement illusory, since the only coverage offered under the endorsement is for employer torts that are not covered by Workers’ Compensation.

After finding a duty to defend the insured for the assault and battery alleged, the case was reversed and remanded for further proceedings.