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.
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