SUIT AGAINST US - LIMITATION OF ACTION CLAUSE

OHIO SUPREME COURT

Dominish v. Nationwide Ins. Co., 129 Ohio St.3d 466, 2011-Ohio-4102.

"SUIT AGAINST US" --- ("US" BEING THE INSURER)  ... MUST BE BROUGHT WITHIN A CERTAIN PERIOD OF TIME AFTER THE LOSS OCCURS.

LIMITATION OF ACTION CLAUSE - CONTRACTUAL LIMITATION PERIOD FOR FILING SUIT

Here is the contract clause the Ohio Supreme Court was construing:
“Suit Against Us. No action can be brought against us unless there has been full compliance with the policy provisions. Any action must be started within one year after the date of loss or damage.”

Our office is currently working on a $120,000 case involving this very issue and policy language.  The Dominish decision upholds prior Ohio law on the issue and details the circumstances under which the insurer may end up waiving reliance on the "Suit Against Us" clause.

IN A NUTSHELL, The Court held that an insurer can enforce limitation-of-action clause in its insurance contract because clause is unambiguous and insurer did not admit liability or hold out a reasonable hope of adjustment.
 
The thrust of the analysis is on whether the insurer admitted liability or held out a reasonable hope of adjustment to the insured.  If the insurer did either of those things, there maybe a waiver of the "Suit Against Us" clause and the insured could prevail despite not having filed suit within the period defined within that clause.
 
How Might Waiver of the "Suit Against Us" Clause Occur?


In Hounshell v. Am. States Ins. Co. (1981), 67 Ohio St.2d 427, 21 O.O.3d 267, 424 N.E.2d 311, syllabus, we stated, “An insurance company may be held to have waived a limitation of action clause in a fire insurance policy by acts or declarations which evidence a recognition of liability, or acts or declarations
which hold out a reasonable hope of adjustment and which acts or declarations occasion the delay by the insured in filing an action on the insurance contract until after the period of limitation has expired.” This holding is sufficiently clear that we have not had occasion to revisit it in the intervening 30 years.

The holding states a two-part test to determine whether an insurance company has waived a contractual limitation-of-action clause. We do not consider the test to be the exclusive way to determine whether an insurance company has waived its right to enforce a limitation-of-action clause, but it is one way.

To be deemed to have waived its right to enforce a limitation-of-action clause pursuant to our holding in Hounshell, an insurance company must have either recognized liability or held out a reasonable hope of adjustment and by doing so, induced the insured to delay filing a lawsuit until after the contractual period of limitation expired. We conclude that Nationwide did not recognize liability for the disputed portion of the damage or hold out a hope of an adjustment to include compensation for that portion of the damage.

As such, there was no waiver and the insured was barred from recovery.

Read the case here.

BODILY INJURY TO RELATIVES RESIDING IN YOUR "HOUSEHOLD"

Grange v. Stubbs (10th Appellate District), App. No. 11AP-163
Coverage excluded for injuries to a relative residing in named insured's "household."

Household is not the same as residence premises.  Household is the family unit... not necessarily the physical structure listed in the declarations.

We handled a case dealing with this very issue involving a young girl who was rendered a paraplegic as a result of an automobile accident.  We were able to successfully brief and argue the "household" exclusion and obtain a very favorable settlement for our client.

The Ohio Supreme Court stated:  We find "household" to be unambiguous in the context of the household-resident exclusions in 7(b) and (c). Given the common and ordinary meaning of the word, we reject appellants' attempt to equate "household" with "residence premises."

"Household" refers to the family unit of the insured, whereas "residence premises" refers to the physical building and location of the address listed in the declarations page. ... in explaining the difference between these two terms, 'Residence premises' refers to a type of physical structure while                                                                                     'household' refers to a distinct type of living arrangement in                                                                         the sense of a social unit.

Read the case here.

FIGHT OVER BASEBALL PARKING FEE RESULTING IN DEATH

Ninth District Court of Appeals:  Haught v. U.S.F.&G

REMEMBER THIS ONE?

BASEBALL MELEE OVER PARKING FEE ENDING IN DEATH WHEN COACH JOINED THE FRAY AND ALLEGEDLY SHOVED THE DECEDENT TO THE GROUND.

Well...... under the insurance policy that was acting in capacity as a coach resulting in insured status for the assailant.

KEY TERMS:  "Acting in Capacity as Coach / Named Insured Status / Wrongful Death / Fight over Baseball Parking Fee / Commercial General Liability Policy / Coverage"

Our firm has first-hand experience dealing with assault and battery coverage issues, including wrongful death.  Although this case did not deal with the "intended/expected" or "assault and battery" exclusions, it is likely that those exclusions became a part of the coverage analysis in separate related coverage arguments in Haught case.  Did we mention that our founder's son just signed a National Letter of Intent to The Ohio State University baseball program?  So, we know a bit about baseball too.  Had to throw that in.  Very proud.  Here's a summary of the Haught case for you.

In Haught v. U.S.F.&G., the Ninth District Court of Appeals reversed the trial court finding of no-coverage. The case hinged on the definition of "capacity" and whether the coach was still within his capacity as coach when he ran to join the melee that was occurring with a crowd over the charging of a parking fee for a baseball tournament.

The Court had this to say: Certainly, there are actions a coach could take during a tournament which would be considered acting outside his or her capacity as a coach. For example, a coach acting on his or her own personal interests would not be acting in his or her capacity as a coach, whereas a coach acting on behalf of the team’s interests would be acting within his or her capacity as a coach. Thus, we conclude the appropriate issue is whether Mr. Haught was acting on behalf of his own personal interests or on behalf of the interests of the team.

Here, given that the mêlée was occurring approximately eighty feet from where Mr. Haught was conducting a team meeting, that the argument grew heated and became violent, and that Mr. Haught’s assistant coach left the team meeting and ran towards the fight, we conclude that Mr. Haught was acting within his capacity as a coach when he ran after his assistant coach and into the crowd. Mr. Haught’s actions were not completely unconnected to his responsibilities as the coach of the team given the proximity of the fight, its escalation, and those involved in it. As such, the coach was acting within his capacity as a coach and was insured under the policy.

Read the case here.

OHIO SUPREME COURT Employment Intentional Tort - Defense

Ward v. United Foundries, Inc., Slip Opinion No. 2011-Ohio-3176 (July 6, 2011)

SUMMARY:
POLICY THAT EXCLUSES ANY ACT WHICH IS "DETERMINED" TO CONSTITUTE AN EMPLOYMENT INTENTIONAL TORT DOES NOT REQUIRE THE INSURER TO DEFEND AN EMPLOYMENT INTENTIONAL TORT CASE UNTIL SUCH "DETERMINATION" IS FIRST MADE. THE INSURER CAN DENY BOTH DEFENSE AND INDEMNITY UNDER THE POLICY BEFORE ANY "DETERMINATION" OF WHETHER AN EMPLOYMENT INTENTIONAL TORT ACTUALLY OCCURRED.

CERTIFIED QUESTION:
“Whether an exclusion in a commercial general liability insurance policy and/or stop/gap endorsement form, stating the insurance does not apply to ‘bodily injury intentionally caused or aggravated by you, or bodily injury resulting from an act which is determined to have been committed by you with the belief that an injury is substantially certain to occur’ requires a final determination made by either a judge or a jury before the defense of a claim for a substantial certainty employer intentional tort can be denied.”

ANSWER TO CERTIFIED QUESTION: NO

IMPACT:
An exclusion in a commercial general liability insurance policy or stop-gap endorsement stating that the insurance does not apply to bodily injury intentionally caused or aggravated by an insured, or bodily injury resulting from an act that is determined to have been committed by an insured with the belief that an injury is substantially certain to occur does not require a final determination by either a judge or a jury before the insurer can refuse to defend a claim alleging a substantial-certainty employer intentional tort.

CLICK HERE TO READ THE CASE.

OHIO SUPREME COURT

Fed. Ins. Co. v. Executive Coach Luxury Travel, Inc., Slip Opinion No. 2010-Ohio-6300.

Interpretation of "Ominbus Clause" in commercial policy of insurance.

Insurance — Insureds — Bus service contracted by college is a “hired” bus under the college’s insurance policy, and the driver employed by the bus
company is an “insured” under that same policy.

WHAT THE COURT SAID:

The omnibus clause appears straightforward; none of the words in it are unusual or uncommon, but only "auto" is defined in the policy.

All the involved parties have spent much time and effort advocating for their definition of the words "hire" and "permission."

On its face, it is clear to us that the omnibus clause applies to the case before us; Bluffton [College] hired the bus from Executive and granted permission to Niemeyer to drive the bus. Whether the insurance company intended the clause to apply is immaterial because the language of the policy supports a conclusion that Niemeyer is an insured.

We construe insurance policies liberally in favor of the insured. Blue Cross & Blue Shield Mut. of Ohio v. Hrenko (1995), 72 Ohio St.3d 120, 122, 647 N.E.2d 1358, citing Yeagar v. Pacific Mut. Life. Ins. Co. (1956), 166 Ohio St. 71, 1 O.O.2d 204, 139 N.E.2d 48, paragraph one of the syllabus.

Read the Case.

OHIO SUPREME COURT

ALLSTATE INSURANCE COMPANY v. CAMPBELL
SLIP OPINION NO. 2010-OHIO-6312

INTENTIONAL ACT EXCLUSION DISCUSSED

Teens place deer decoy in roadway at night. They ensure that decoy becomes visible only 10-15 seconds before potential impact. Insurer claims that the teens' conduct intentionally caused harm to vehicle occupants; and coverage should be excluded under the "intended/expected" policy exclusion. (See original news story here.)

Insurance policies — Inferred-intent analysis applied to intentional-act exclusions — Inferred intent is not limited to sexual molestation and homicide — Inferred intent applies only when the insured’s intentional act and the harm caused are intrinsically tied so that the act has necessarily resulted in the harm.

SYLLABUS OF THE COURT
1. As applied to an insurance policy’s intentional-act exclusion, the doctrine of inferred intent is not limited to cases of sexual molestation or homicide.

2. As applied to an insurance policy’s intentional-act exclusion, the doctrine of inferred intent applies only in cases in which the insured’s intentional act and the harm caused are intrinsically tied so that the act has necessarily resulted in the harm.

Read the Case.