in the insurance context, doctrine of inferred intent applies where an “intentional act and the harm are intrinsically tied so that the act necessarily resulted in the harm”
How later courts described this case
- in the insurance context, doctrine of inferred intent applies where an “intentional act and the harm are intrinsically tied so that the act necessarily resulted in the harm”
Written by the judges who cited it.
The opinion
[Cite as Allstate Ins. Co. v. Campbell, 128 Ohio St.3d 186, 2010-Ohio-6312.]
ALLSTATE INSURANCE COMPANY ET AL., APPELLANTS, v. CAMPBELL ET AL.,
APPELLEES.
[Cite as Allstate Ins. Co. v. Campbell, 128 Ohio St.3d 186, 2010-Ohio-6312.]
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.
(No. 2009-2358 — Submitted September 29, 2010 — Decided
December 30, 2010.)
APPEAL from the Court of Appeals for Franklin County, Nos. 09AP-306,
09AP-307, 09AP-308, 09AP-309, 09AP-318, 09AP-319, 09AP-320,
and 09AP-321, 2009-Ohio-6055.
__________________
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.
__________________
LANZINGER, J.
{¶ 1} In this appeal arising from a declaratory judgment action to
determine whether insurance coverage exists in a lawsuit involving injuries
stemming from a misguided teenage prank, we are asked to apply the doctrine of
SUPREME COURT OF OHIO
inferred intent with respect to intentional-act exclusions. Because we decline to
allow the intent to harm to be inferred as a matter of law in cases in which the
harm suffered cannot be deemed an inherent result of the intentional act, we
affirm the judgment of the court of appeals in part and remand to the trial court
for proceedings consistent with this opinion.
I. Case Background
{¶ 2} On the evening of November 18, 2005, a group of teenage boys,
including Dailyn Campbell, Jesse Howard, and Corey Manns, stole a lightweight
Styrofoam target deer typically used for shooting or archery. The boys fastened a
piece of wood to the target so that it could stand upright. Along with Carson
Barnes, they then placed it just below the crest of a hill in Hardin County on
County Road 144, a hilly and curvy two-lane road with a speed limit of 55 miles
per hour. They put the target on the road after dark – between 9:00 and 9:30 p.m.
– in a place in which drivers would be unable to see it until they were 15 to 30
yards away. The boys then remained in the area so that they could watch the
reactions of motorists. About five minutes after the boys placed the target in the
road, appellee Robert Roby drove over the hill. Roby took evasive action, but
ultimately lost control of his vehicle, which left the road, overturned, and came to
rest in a nearby field. This accident caused serious injuries to both Roby and his
passenger, appellee Dustin Zachariah.
{¶ 3} Roby and Zachariah1 filed suits in the Franklin County Court of
Common Pleas against the boys, their parents, and their insurance companies,
among others, seeking recovery for the damages sustained in the accident.
{¶ 4} Appellants Allstate Insurance Company (“Allstate”), American
Southern Insurance Company (“American Southern”), Erie Insurance Exchange
(“Erie”), and Grange Mutual Casualty Company (“Grange”) filed declaratory
1. Zachariah’s mother, Katherine E. Piper, is also a plaintiff in Zachariah’s suit.
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judgment actions in the Franklin County Court of Common Pleas seeking a
declaration that they are under no duty to defend or indemnify their insureds, the
juveniles and their parents, in the Roby and Zachariah lawsuits.
{¶ 5} After consolidating the declaratory judgment actions, the trial court
granted the insurance companies’ motions for summary judgment. Although the
court did not find that the boys directly intended to cause harm, it inferred their
intent as a matter of law, based in part on the finding that their conduct was
substantially certain to result in harm. The trial court thus concluded that none of
the pertinent insurance policies provided coverage and that none of the insurers
had a duty to defend or indemnify its insureds in the pending bodily injury
actions.
{¶ 6} The Tenth District Court of Appeals reversed, holding that genuine
issues of material fact exist over whether the boys intended to cause harm when
they placed the deer target in the road, whether harm was substantially certain to
result from their actions, and whether those actions fall within the scope of their
individual insurance policies. Allstate Ins. Co. v. Campbell, Franklin App. Nos.
09AP-306, 09AP-307, 09AP-308, 09AP-309, 09AP-318, 09AP-319, 09AP-320,
and 09AP-321, 2009-Ohio-6055, ¶ 53. The court of appeals expressed
uncertainty regarding the strength of inferred intent in Ohio but noted that
appellate courts have expanded the doctrine beyond the crimes of murder and
molestation. Id. at ¶ 39. The Tenth District Court of Appeals stated that there
was no dispute that the boys had acted intentionally; the disputed issue was
whether they had intended harm or injury to follow their intentional act. Id. at ¶
50. The court concluded that because questions of fact remained over the
certainty of harm resulting from the boys’ actions, their conduct did not support
an objective inference of an intent to injure as a matter of law. Id. at ¶ 53.
{¶ 7} We granted discretionary jurisdiction over the second proposition
of law of each insurer, as well as the third proposition of law of Allstate and
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Grange.2 Allstate Ins. Co. v. Campbell, 124 Ohio St.3d 1506, 2010-Ohio-799,
922 N.E.2d 969. The insurers’ second proposition of law states that the doctrine
of inferred intent as applied to an intentional-act exclusion in an insurance policy
is not limited to cases of sexual molestation or homicide but may be applied
where undisputed facts establish that harm was substantially certain to occur as a
result of the insured’s conduct. Allstate and Grange’s third proposition of law
states that their policies’ exclusionary language denotes an objective as opposed
to a subjective standard of coverage, rendering an insured’s subjective intent
irrelevant.
II. Legal Analysis
A. The Language of the Insurance Agreements
{¶ 8} “It is axiomatic that an insurance company is under no obligation
to its insured, or to others harmed by the actions of an insured, unless the conduct
alleged of the insured falls within the coverage of the policy.” Gearing v.
Nationwide Ins. Co. (1996), 76 Ohio St.3d 34, 36, 665 N.E.2d 1115. “Coverage
is provided if the conduct falls within the scope of coverage defined in the policy,
and not within an exception thereto.” Id.
{¶ 9} Homeowners’ insurance policies typically provide coverage for
harm accidentally caused by their insureds; intentional torts are excluded. Most
policies contain an intentional-act exclusion, which states that the insurance
company will not be liable for harm intentionally caused by the insured. But
when there is no evidence of direct intent to cause harm and the insured denies the
intent to cause any harm, the insured’s intent to cause harm will be inferred as a
2. We note that while our March 10, 2010 Case Announcements correctly reflected the
propositions of law over which we granted jurisdiction, our March 10, 2010 entry in this case
contained a clerical error, indicating that we accepted the appeal of American Southern on
Proposition of Law I. American Southern has briefed both Proposition of Law I, for which we did
not accept jurisdiction, and Proposition of Law II, for which we did. We correct the clerical error
by accepting the appeal of American Southern nunc pro tunc only on Proposition of Law II, and
we will not address American Southern’s Proposition of Law I.
4
January Term, 2010
matter of law in certain instances. Gearing, 76 Ohio St.3d 34, 665 N.E.2d 1115,
paragraph one of the syllabus.
{¶ 10} Although the central question is whether intent to harm should be
inferred as a matter of law under the circumstances of this case, insurance
coverage is finally determined by the policy language. As a preliminary matter,
we recognize that each policy issued by the four insurers contains similar
language defining an “occurrence” as an accident and providing coverage for
bodily injury arising from an occurrence. Each insurer, however, uses unique
exclusionary language.
1. Allstate’s exclusionary language for intentional act
{¶ 11} Allstate issued policies to a parent of Dailyn Campbell and the
parents of Jesse Howard.3 The exclusion portion of the Allstate policies provides:
{¶ 12} “Losses We Do Not Cover * * * :
{¶ 13} “1. We do not cover any bodily injury or property damage
intended by, or which may reasonably be expected to result from the intentional
or criminal acts or omissions of, any insured person. This exclusion applies
even if:
{¶ 14} “a) such insured person lacks the mental capacity to govern his or
her conduct;
{¶ 15} “b) such bodily injury or property damage is of a different kind
or degree than intended or reasonably expected; or
{¶ 16} “c) such bodily injury or property damage is sustained by a
different person than intended or reasonably expected.” (Boldface sic.)
2. American Southern’s exclusionary language for intentional act
3. The relevant language of each policy issued by Allstate is identical.
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SUPREME COURT OF OHIO
{¶ 17} American Southern also issued a policy to one of Dailyn
Campbell’s parents. The exclusion portion of the American Southern policy
provides:
{¶ 18} “1. Exclusions That Apply to Coverages L and M – Liability
and Medical Payment Coverage does not apply to ‘bodily injury’ or ‘property
damage’ which results directly or indirectly from:
{¶ 19} “ * * *
{¶ 20} “j. an intentional act of any ‘insured’ or an act done at the direction
of any ‘insured.’ ” (Boldface sic.)
3. Erie’s exclusionary language for intentional act
{¶ 21} Erie issued policies to a parent of Corey Manns and the parents of
Carson Barnes.4 The exclusion portion of the Erie policies provides:
{¶ 22} “WHAT WE DO NOT COVER – EXCLUSIONS
{¶ 23} “* * *
{¶ 24} “We do not cover under Bodily Injury Liability Coverage * * *:
{¶ 25} “1. Bodily injury, property damage or personal injury expected
or intended by anyone we protect even if:
{¶ 26} “a. the degree, kind or quality of the injury or damage is different
than what was expected or intended; or
{¶ 27} “b. a different person, entity, real or personal property sustained
the injury or damage than was expected or intended.” (Boldface and emphasis
sic.)
4. Grange’s exclusionary language for intentional act
{¶ 28} Grange issued a policy to a parent of Corey Manns. The Grange
policy provides:
{¶ 29} “EXCLUSIONS
4. The relevant language of each policy issued by Erie is identical.
6
January Term, 2010
{¶ 30} “* * *
{¶ 31} “6. Bodily injury or property damage expected or intended by
any insured person.” (Boldface sic.)
B. Acceptance of the Doctrine of Inferred Intent
{¶ 32} The appellant insurers argue that we should expand the rule of
inferred intent so that it applies to the circumstances in this case. They suggest
that we apply the “substantially certain” test so that intent to harm will be inferred
as a matter of law whenever an insured’s act is substantially certain to cause
harm. The appellees argue that application of inferred intent should remain
limited and that instead of using the “substantially certain” test in this case, the
trial court should resolve the disputed matter of the boys’ intent like any other
issue of fact.
{¶ 33} Before we discuss whether the rule of inferred intent should be
extended to all torts where there is a substantial certainty of harm or limit its
application, we must explore the line of cases that have accepted the doctrine.
{¶ 34} We have already recognized that the rule of inferred intent applies
in two specific instances: sexual molestation of a minor and murder. See
Gearing, 76 Ohio St.3d at 36-38, 665 N.E.2d 1115; Preferred Risk Ins. Co. v. Gill
(1987), 30 Ohio St.3d 108, 114-115, 30 OBR 424, 507 N.E. 2d 1118. Appellants
ask us to extend the doctrine to apply in cases like the one currently before us,
specifically relying upon the analysis set forth in Justice Cook’s concurring
opinion in Buckeye Union Ins. Co. v. New England Ins. Co. (1999), 87 Ohio St.3d
280, 288-289, 720 N.E.2d 495. In her concurrence, Justice Cook argued that
where direct intent does not exist, the insured’s subjective intent is not conclusive
on the coverage issue, and courts should instead infer an intent to harm where the
insured’s action creates a substantial certainty of harm. Id.
{¶ 35} We acknowledge that the lack of a majority opinion in Buckeye
Union has generated uncertainty as to the scope of the doctrine of inferred intent.
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On one hand, the appellees argue that Justice Pfeifer’s plurality opinion in
Buckeye Union – which limits the doctrine to acts that are “intentionally injurious
by definition,” id. at 284, represents the correct view of the doctrine in Ohio. On
the other hand, the appellants argue that inferred intent should be applied in a
wider variety of cases, as the Buckeye Union concurring opinion suggests.
Recognizing the need for clarity in this area of the law, we first review our
decisions relevant to the doctrine.
1. Preferred Risk Ins. Co. v. Gill
{¶ 36} The roots of the doctrine of inferred intent in Ohio can be traced
back to Gill, 30 Ohio St.3d 108, 30 OBR 424, 507 N.E.2d 1118. In Gill, we
considered whether an insurance company had a duty to defend or indemnify
against claims of wrongful death and negligent infliction of emotional distress an
insured who had been convicted of aggravated murder of a child. The insurance
policy included language excluding coverage for “bodily injury or property
damage ‘which is expected or intended by the insured.’ ” Id. at 113. We held that
the insurance company had no duty to defend or indemnify in the underlying
wrongful-death claim because the insured’s act “was indisputably intentional and
outside coverage.” Id. at 115. We also concluded that the insurance company
had no duty to defend or indemnify in the underlying claim for emotional distress,
noting that the behavior of the insured leading to the emotional distress “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.”
Id.
2. Physicians Ins. Co. of Ohio v. Swanson
{¶ 37} We revisited Gill in Physicians Ins. Co. of Ohio v. Swanson
(1991), 58 Ohio St.3d 189, 569 N.E.2d 906. Swanson considered whether the
insurance companies had an obligation to defend and indemnify its insureds,
8
January Term, 2010
whose son had fired a BB gun towards some teenagers from approximately 70 to
100 feet. The Swansons’ insurance policy said that it “will not cover Personal
Injury or Property Damage caused intentionally.” Id. at 191. In explaining our
decision in Gill, we noted, “Gill actually stands for the proposition that it is the
resultant injury which must be intended for the exclusion to apply to deny
coverage.” (Emphasis sic.) Id.
{¶ 38} In reversing the holding of the court of appeals that the insurers
were not obligated to defend and indemnify its insureds, we held, “In order to
avoid coverage on the basis of an exclusion for expected or intentional injuries,
the insurer must demonstrate that the injury itself was expected or intended.” Id.
at syllabus. This holding was based upon two rationales. First, we determined
that the plain language of the policy was in terms of an intentional or expected
injury, not an intentional or expected act. Id. at 193. Second, we recognized that
many unintended injuries result from intentional acts. Id.
3. Gearing v. Nationwide Ins. Co.
{¶ 39} While Gill and Swanson can be read as implicitly adopting a form
of inferred intent, we first explicitly recognized the doctrine in Gearing, 76 Ohio
St.3d 34, 665 N.E.2d 1115, paragraph one of the syllabus. Gearing involved a
declaratory judgment action in which an insured sought a declaration that the
insurance company was obligated to defend him in a civil suit arising from his
alleged sexual molestation of three girls. Id. at 34-35. We affirmed the judgment
of the court of appeals, holding that the insurance company owed no duty to
defend the insured. Id. at 41.
{¶ 40} In Gearing, the insurance policy had provided an exclusion for
bodily injury or property damage that is “expected or intended by the insured.”
Id. at 36. We examined cases from other states in which the doctrine of inferred
intent was applied to cases arising from acts of sexual molestation, concluding
that “in those cases where an intentional act is substantially certain to cause
9
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injury, determination of an insured’s subjective intent, or lack of subjective intent,
is not conclusive of the issue of coverage.” Id. at 39. Thus, “an insured’s
protestations that he ‘didn’t mean to hurt anyone’ are only relevant where the
intentional act at issue is not substantially certain to result in injury.” Id.
{¶ 41} We noted that this conclusion is central to Swanson, where we
stated, “ ‘ “[R]esulting injury which ensues from the volitional act of an insured is
still an ‘accident’ within the meaning of an insurance policy if the insured does
not specifically intend to cause the resulting harm or is not substantially certain
that such harm will occur.” ’ ” (Emphasis added in Gearing.) Id. at 39-40,
quoting Swanson, 58 Ohio St.3d at 193, 569 N.E.2d 906, quoting Quincy Mut.
Fire Ins. Co. v. Abernathy (1984), 393 Mass. 81, 84, 469 N.E.2d 797.
{¶ 42} After determining that the arguments in support of inferred intent
were persuasive and that the rule was consistent with earlier decisions, we
adopted it: “We accept the premises upon which the inferred intent rule is based,
and hold that intent to harm is properly inferred as a matter of law from deliberate
acts of sexual molestation of a minor.” Gearing, 76 Ohio St.3d at 37, 665 N.E.2d
1115. In applying this holding, we concluded, “Incidents of intentional acts of
sexual molestation of a minor do not constitute ‘occurrences’ for purposes of
determining liability insurance coverage, as intent to harm inconsistent with an
insurable incident is properly inferred as a matter of law from deliberate acts of
sexual molestation of a minor.” Id. at paragraph one of the syllabus.
{¶ 43} Our decision in Gearing nevertheless left certain issues
unresolved. In adopting the doctrine of inferred intent only in the context of
sexual-molestation cases, we did not address the question of whether intent may
be inferred in cases involving acts other than sexual molestation or murder.
Furthermore, as a result of this limited adoption of the rule, we did not enunciate a
clear standard for courts to apply in determining whether a certain act gives rise to
an inference of intent.
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January Term, 2010
4. Buckeye Union Ins. Co. v. New England Ins. Co.
{¶ 44} The application of the doctrine of inferred intent to cases beyond
those involving murder and sexual molestation first arose in Buckeye Union Ins.
Co., 87 Ohio St.3d at 288-289, 720 N.E.2d 495 (Cook, J. concurring). A federal
district court had ruled in an underlying case that Buckeye Union Insurance
Company had acted in bad faith and with intent to injure in refusing to settle an
insurance claim and that this intentional act precluded New England Insurance
Company from reimbursing its insured, Buckeye Union, under a professional
liability policy. Id. at 281-282. The Sixth Circuit Court of Appeals certified three
questions to this court, the first of which asked whether Buckeye Union’s actions
in the underlying case constituted the type of intentional tort that is uninsurable
under Ohio law. Id. at 282. We answered that question “no.” Id.
{¶ 45} In a plurality opinion, Justice Pfeifer made a distinction. He noted
that in both Gill and Gearing, “insureds were found to have committed wrongful
acts, acts that are intentionally injurious by definition.” Id. at 284. Buckeye
Union’s act of refusing to settle an insurance claim was not such an intentionally
injurious act, Justice Pfeifer explained, because in certain circumstances, insurers
may properly refuse to settle claims. Id. He accordingly concluded that it would
be improper to extend the doctrine of inferred intent to torts that were based upon
a bad-faith refusal to settle an insurance claim.
{¶ 46} Disagreeing with Justice Pfeifer’s reasoning, Justice Cook argued
that Gearing, 76 Ohio St.3d 34, 665 N.E.2d 1115, provided an effective means
for analyzing coverage issues regarding a wide variety of intentional torts. Id. at
289-290 (Cook, J., concurring). Justice Cook criticized limiting “acts that are
intentionally injurious by definition” to murder and sexual molestation, arguing
that this categorization does not clarify what other types of actions might reveal
intent. Id. at 289-290. She concluded that the proper test would be the objective
“substantial certainty” test set forth in Gearing. Id. at 290-291. A close
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examination of Gearing, however, reveals that this court has limited the scope of
inferred intent.
C. Application of the Doctrine of Inferred Intent
{¶ 47} In Gearing, we noted that the rule of inferred intent “is based on
the premise that acts of sexual molestation and the fact of injury caused thereby
are ‘virtually inseparable.’ ” Gearing, 76 Ohio St.3d at 37, 665 N.E.2d 1115,
quoting Worcester Ins. Co. v. Fells Acres Day School, Inc. (1990), 408 Mass. 393,
400, 558 N.E.2d 958. In other words, in a case of sexual molestation, “ ‘to do the
act is necessarily to do the harm which is its consequence; and * * * since
unquestionably the act is intended, so also is the harm.’ ” (Ellipsis sic.) Id.,
quoting Allstate Ins. Co. v. Mugavero (1992), 79 N.Y.2d 153, 160, 581 N.Y.S.2d
142, 589 N.E.2d 365.
{¶ 48} It is clear that 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. Limiting the scope of the doctrine is
appropriate because the rule is needed only in a narrow range of cases – those in
which the insured’s testimony on harmful intent is irrelevant because the
intentional act could not have been done without causing harm. Thus, an
insured’s intent to cause injury or damage may be inferred only when that harm is
intrinsically tied to the act of the insured – i.e., the action necessitates the harm.
The doctrine of inferred intent does not apply only to cases arising from acts of
murder or sexual molestation. For example, intent could hypothetically be
inferred in certain felonious-assault or rape cases, where the intentional acts
necessarily cause harm; however, courts should be careful to avoid applying the
doctrine in cases where the insured’s intentional act will not necessarily result in
the harm caused by that act.
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January Term, 2010
{¶ 49} Gill and Gearing provide clear examples of cases in which the
doctrine applies. In Gill, harm was inherent in the defendant’s act of murder.
Harm was similarly inherent in the acts of sexual molestation in Gearing. In each
of these cases, the insured could not claim that he was unaware that harm would
result from his actions. The doctrine of inferred intent thus applied in those cases,
and the insureds’ actions were excluded from coverage.
{¶ 50} The same cannot be said about the actions in Swanson and Buckeye
Union. In Swanson, the act of firing a BB gun from a relatively long distance
would not necessarily result in harm. Likewise, an insurance company’s bad-faith
refusal to settle a claim, as in Buckeye Union, does not necessarily result in
compensable damages. In both cases, a factual inquiry was necessary to
determine whether the insureds’ actions were excluded from coverage.
{¶ 51} The present case is similar to Swanson and Buckeye Union. We
cannot say as a matter of law that the act of placing a target deer in a road in the
manner done here necessarily results in harm. Indeed, other cars had passed by
and avoided the target. While the boys’ act was ill-conceived and irresponsible
and resulted in serious injuries, the action and the harm are not intrinsically tied
the way they are in murder and sexual molestation. We accordingly conclude that
while the doctrine of inferred intent may apply to actions other than murder or
sexual molestation, it does not apply in this case.
D. The “Substantially Certain” Test
{¶ 52} Appellants have asked us to use the “substantially certain” test –
which Justice Cook advocated in Buckeye Union and which was discussed in
Swanson and Gearing – when deciding whether the intentional-act exclusion
applies to cases other than murder or sexual assault. Before adopting the rule of
inferred intent for Ohio, we had quoted from the Supreme Judicial Court of
Massachusetts, which characterizes an act that is not expected or intended by the
insured: “ ‘the resulting injury which ensues from the volitional act of an insured
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is still an “accident” within the meaning of an insurance policy if the insured does
not specifically intend to cause the resulting harm or is not substantially certain
that such harm will occur.’ ” Swanson, 58 Ohio St.3d at 193, 569 N.E.2d 906,
quoting Quincy, 393 Mass. at 84, 469 N.E.2d 797. In Swanson, we held that the
insurer must demonstrate that “the injury itself was expected or intended.” Id. at
193.
{¶ 53} We also quoted Swanson’s “substantially certain” language when
explaining how adoption of the doctrine of inferred intent was consistent with
precedent. Gearing, 76 Ohio St.3d at 39-40, 665 N.E.2d 1115. “[I]n those cases
where an intentional act is substantially certain to cause injury, determination of
an insured’s subjective intent, or lack of subjective intent, is not conclusive of the
issue of coverage. Rather, an insured’s protestations that he ‘didn’t mean to hurt
anyone’ are only relevant where the intentional act at issue is not substantially
certain to result in injury.” Id. at 39. Significantly, nowhere does Gearing state
that the “substantially certain” test should be used to determine whether to infer
intent as a matter of law in considering other intentional torts.
{¶ 54} Justice Cook argued that Gearing outlined a two-part analysis.
Buckeye Union, 87 Ohio St.3d at 289, 720 N.E.2d 495 (Cook, J., concurring).
First is a determination whether the insured directly intended the injury. Id. at
288. If no direct intention exists, then the court determines whether the insured’s
act was substantially certain to cause injury. Id. That approach is flawed,
however.
{¶ 55} Instead of outlining a two-part analysis, Gearing treats the
“substantially certain” test as being subsumed within the newly adopted rule of
inferred intent.5 Gearing never addressed whether the insured’s action was
5. Appellants argue that we adopted Justice Cook’s Buckeye Union opinion in Penn Traffic Co. v.
AIU Ins. Co., 99 Ohio St.3d 227, 2003-Ohio-3373, 790 N.E.2d 1199. Penn Traffic, however, is
inapposite here, as it concerned employer liability for intentional torts, an entirely separate area of
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January Term, 2010
substantially certain to result in harm. Instead, it concluded that “intent to harm
inconsistent with an insurable incident is properly inferred as a matter of law
from deliberate acts of sexual molestation of a minor.” (Emphasis added.)
Gearing, 76 Ohio St.3d at 40, 665 N.E.2d 1115.
{¶ 56} We now clarify that 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. Because this test provides
a clearer method for determining when intent to harm should be inferred as a
matter of law, we hold that courts are to examine whether the act has necessarily
resulted in the harm – rather than whether the act is substantially certain to result
in harm.
E. Objective or Subjective Nature of Inferred Intent
{¶ 57} In their second propositions of law, Allstate and Grange argue that
the exclusionary language used in their policies requires an objective test for
whether they must provide coverage. Because we determine that under the
circumstances of this case, intent to harm may not be inferred as a matter of law,
we affirm the judgment of the court of appeals on this point and conclude that the
trial court must conduct a factual inquiry on remand to determine whether a duty
to defend and indemnify arises from the Allstate, Grange, and Erie policies.
{¶ 58} The Allstate, Grange, and Erie polices each contain exclusionary
language stating that the insurers will not cover harm expected or intended by an
insured.6 Because we do not infer the insureds’ intent to harm as a matter of law
the law that has undergone significant change since that opinion was issued. See Kaminski v.
Metal & Wire Prods. Co., 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066.
6. Allstate argues its policy’s language precluding damage that “may reasonably be expected to
result from the intentional * * * acts” of “any insured person” differentiates its policy from the
others in a manner that triggers an objective test. (Emphasis sic.) We conclude that as interpreted
in light of Swanson and Gearing, Allstate’s inclusion of the word “reasonably” into its
exclusionary language does not alter our analysis here, because the issue of whether the harm was
intended or could reasonably be expected to result from the an intentional act is a question of fact.
15
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and the boys deny that harm was intended or expected, whether the injury was
expected or reasonably expected is an issue to be determined by the trier of fact.
See Swanson, 58 Ohio St.3d at 193-194, 569 N.E.2d 906.
{¶ 59} An insurer’s motion for summary judgment may be properly
granted when intent may be inferred as a matter of law. In cases such as this one,
where the insured’s act does not necessarily result in harm, we cannot infer an
intent to cause injury as a matter of law. We therefore hold that summary
judgment is not proper. In a declaratory action like this, the trier of fact on
remand must weigh the facts in evidence to determine whether the boys intended
or expected harm and, consequently, whether the insurance agreements provide
coverage in this case.
F. American Southern Policy’s Exclusionary Language
{¶ 60} The policy issued by American Southern contains exclusionary
language that differs from that found in the Allstate, Erie, and Grange policies, as
well as the policies at issue in Gill, Swanson, and Gearing. American Southern’s
policy states that coverage does not apply to “ ‘bodily injury’ or ‘property
damage’ which results directly or indirectly from * * * an intentional act of any
‘insured.’ ” The American Southern policy is written in an extremely broad
manner that declares that American Southern is not liable for harm resulting from
any intentional act done by an insured. This language stands in stark contrast to
the language of the other insurance policies at issue in this case, which exclude
from coverage harm that is expected or intended by the insured.
{¶ 61} By using broad exclusionary language excluding coverage for
harm caused by any intentional act – regardless of whether the harm is expected
or intended by the insured – American Southern has worded its policy in a manner
that frees it from the line of analysis found in Gill, Swanson, and Gearing. In
those three cases, each insurance policy excluded coverage for harm that was
“caused intentionally” or “expected or intended” by the insured. Gill, 30 Ohio
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January Term, 2010
St.3d at 113, 30 OBR 424, 507 N.E.2d 1118; Swanson, 58 Ohio St.3d at 191, 569
N.E.2d 906; Gearing, 76 Ohio St.3d at 36, 665 N.E.2d 1115. While those cases
contained exclusions for an intentional or expected injury, American Southern’s
policy addresses an intentional act. Given the significantly different and
unambiguous language of the American Southern policy, we must conclude that
as a matter of law, American Southern is under no duty to defend or indemnify
Dailyn Campbell or his family for any liability resulting from his intentional acts
in participating in the events at issue in this case.
III. Conclusion
{¶ 62} We hold that 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. Nevertheless, the doctrine of inferred intent applies
only in cases in which the insured’s intentional act and the harm caused by that
act are intrinsically tied so that the harm necessarily results from the act. Because
the doctrine of inferred intent does not apply to the circumstances of this case, we
further hold that under the Allstate, Erie, and Grange policies, the trier of fact
must conduct a factual inquiry on remand to determine whether the boys intended
or expected the harm that resulted from their intentional actions. We thus affirm
the court of appeals’ judgment that the trial court erred in granting the motions for
summary judgment of Allstate, Erie, and Grange.
{¶ 63} We reverse the judgment of the court of appeals as it applies to
American Southern and reinstate the finding of the trial court that there is no
coverage under the American Southern policy and that American Southern is
accordingly under no duty to defend or indemnify Dailyn Campbell and his
parent.
Judgment affirmed in part
and reversed in part,
and cause remanded.
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O’CONNOR, J., concurs.
BROWN, C.J., and PFEIFER, J., concur in the syllabus and in part of the
judgment.
LUNDBERG STRATTON, O’DONNELL, and CUPP, JJ., concur in paragraph
one of the syllabus and in part of the judgment.
__________________
PFEIFER, J., concurring in part and dissenting in part.
{¶ 64} I concur with the majority opinion except for its reversal of the
judgment of the court of appeals as it applies to American Southern. I would hold
that the exclusionary language in the American Southern policy is not materially
different from the language in the other policies and would therefore affirm the
decision below.
{¶ 65} The American Southern policy reads:
{¶ 66} “Liability and Medical Payment Coverage does not apply to
‘bodily injury’ or ‘property damage’ which results directly or indirectly from * *
* an intentional act of any ‘insured’ or an act done at the direction of any
‘insured.’ ”
{¶ 67} The exclusion cannot be as broad as envisioned by the majority.
Most accidents are the result of intentional acts – it is the result that is unintended.
If a homeowner intentionally leaves his rake in the yard with the intention of
returning to his gardening after a short water break and a neighbor steps on the
rake and punctures his foot and breaks his nose, is there no coverage? Here, as in
the other policies, the exclusion applies to instances where the insured intends to
cause harm. Otherwise, there would be no coverage for any injury that resulted
from any waking, nonreflexive act of an insured.
BROWN, C.J., concurs in the foregoing opinion.
__________________
O’DONNELL, J., concurring in part and dissenting in part.
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January Term, 2010
{¶ 68} While I agree with the majority that the doctrine of inferred intent,
as applied to an insurance policy’s intentional-act exclusion, is not limited to
cases of sexual molestation or homicide, I dissent from the majority’s holding that
the doctrine “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.”
Factual Background and Procedural History
{¶ 69} On the evening of November 18, 2005, a group of high school
teenagers, Dailyn Campbell, Corey Manns, Josh Lowe, Jesse Howard, and Taylor
Rogers, took an artificial deer – the kind bow hunters use for target practice –
from a property near Campbell’s home. They brought it to Lowe’s house, where
they spray-painted profanity and the words “hit me” on it and fashioned wooden
legs so it would stand upright. Two other friends, Carson Barnes and Joey
Ramge, arrived at Lowe’s house as they finished painting, and then all except
Rogers, who had become ill, drove to County Road 144, a 55 m.p.h. two-lane
road in Hardin County. Sometime between 9 and 9:30 p.m., Campbell stood the
deer upright in the eastbound lane of C.R. 144 just over the crest of a grade so it
could not be seen by approaching motorists until they came within 15 to 30 yards
of it. Thereafter, the teens drove back and forth along C.R. 144 to watch the
reactions of the drivers as they encountered the deer. Within five to seven minutes
after Campbell placed the deer in the roadway, appellee Robert Roby, operating a
2005 Dodge Neon, swerved to avoid hitting the deer but lost control of his
vehicle, drove off the road, and rolled his car into a cornfield. Both Roby and
appellee Dustin Zachariah, his passenger, were thrown from the vehicle during
the crash, and both sustained serious injuries: Roby sustained permanent physical
injuries, and Zachariah suffered fractures of his collar bone, sternum, and ribs, a
collapsed lung, and bruises to his heart, brain, and other parts of his body. Each
filed a personal-injury action in the Franklin County Court of Common Pleas.
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SUPREME COURT OF OHIO
{¶ 70} Allstate Insurance Company, American Southern Insurance
Company, Erie Insurance Exchange, and Grange Mutual Casualty Company all
sought declaratory judgment that they had no duty to defend or indemnify their
insureds, the teenagers and their parents, in these actions, asserting that the
injuries did not result from an “occurrence” within the meaning of the
homeowners’ policies and were therefore excluded from coverage pursuant to the
policies’ intentional-act exclusions. The policies issued by the four insurance
carriers contained similar language providing coverage for bodily injury arising
from an “occurrence,” which the policies all defined as an accident. The Allstate,
Erie, and Grange policies exclude coverage for bodily injury or property damage
“intended by,” or that may reasonably be “expected” to result from an intentional
act, while the American Southern policy excludes coverage for bodily injury or
property damage resulting “directly or indirectly from” an “intentional act of any
‘insured.’ ”
{¶ 71} The trial court found that the act of placing the deer in the roadway
resulted in a substantial certainty of harm and therefore ruled that the doctrine of
inferred intent applied to the circumstances of the case. Consequently, the trial
court inferred the intent to cause injury or property damage as a matter of law and
granted summary judgment in favor of the carriers, concluding that they had no
duty to defend or indemnify their insureds in the pending actions. In a split
decision, the court of appeals reversed the grant of summary judgment because it
determined that questions of fact remained regarding the certainty of harm
resulting from the teenagers’ actions, and because it would not infer the intent to
cause injury as a matter of law. Allstate Ins. Co. v. Campbell, Franklin App. Nos.
09AP-306, 09AP-307, 09AP-308, 09AP-309, 09AP-318, 09AP-319, 09AP-320,
and 09AP-321, 2009-Ohio-6055, ¶ 57-58.
{¶ 72} The carriers appealed, and we accepted jurisdiction to examine two
issues: one, whether the doctrine of inferred intent as applied to an intentional-act
20
January Term, 2010
exclusion in an insurance policy is limited to cases of sexual molestation or
homicide, and two, whether the Allstate’s and Grange’s policies’ exclusionary
language denotes an objective standard of coverage, rendering an insured’s
subjective intent irrelevant. Allstate Ins. Co. v. Campbell, 124 Ohio St.3d 1506,
2010-Ohio-799, 922 N.E.2d 969.
Doctrine of Inferred Intent
{¶ 73} In Gearing v. Nationwide Ins. Co. (1996), 76 Ohio St.3d 34, 665
N.E.2d 1115, this court examined whether an insurance company is obligated to
defend and indemnify an insured in civil litigation arising out of the insured’s
sexual molestation of three minors. There we recognized the doctrine of inferred
intent and set forth a test for its application, stating that “in those cases where an
intentional act is substantially certain to cause injury, determination of an
insured’s subjective intent, or lack of subjective intent, is not conclusive as to the
issue of coverage. Rather, an insured’s protestations that he ‘didn’t mean to hurt
anyone’ are only relevant where the intentional act at issue is not substantially
certain to result in injury.” Id. at 39.
{¶ 74} Applying the “substantial certainty” test in Gearing, we
determined that intent to harm is properly inferred as a matter of law because the
act of molestation is so inherently injurious that it cannot be performed without
causing the resulting injury. Id. at 39, 40. Because Gearing’s insurance policy
contained an exclusion for bodily injury or property damage “expected or
intended by the insured,” we held that the insurance company was not obligated to
defend him in the civil suit arising out of that conduct. Id. at 36.
{¶ 75} Three years later, Buckeye Union Ins. Co. v. New England Ins. Co.
(1999), 87 Ohio St.3d 280, 720 N.E.2d 495, presented the question of whether
intent could be inferred as a matter of law from an insurance company’s bad-faith
refusal to settle a claim. The court noted that it had inferred intent as a matter of
law in only two cases, Preferred Risk Ins. Co. v. Gill (1987), 30 Ohio St.3d 108,
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SUPREME COURT OF OHIO
30 OBR 424, 507 N.C.2d 1118, and Gearing, and that in both cases, the insureds
were found to have committed wrongful acts (aggravated murder and sexual
molestation, respectively), which are “intentionally injurious by definition.”
Buckeye Union at 284. Concluding that settling an insurance claim is an act of
contract interpretation and that a settlement may be properly refused in certain
circumstances, the court declined to infer intent to injure in the case, holding that
it would “not place failure to settle an insurance claim on the[] same plane” as
murder and molestation, which “do not enjoy similar sometime rectitude.” Id.
However, in an opinion concurring in judgment only, Justice Cook explained that
by failing to apply the “substantial certainty” test, the majority’s analysis
misconstrued Ohio law by overlooking the standard set forth in Gearing. Id. at
288 (Cook, J., concurring). Justice Cook further cautioned that the court “ought
not to depart from Gearing, as the departure does nothing to clarify the analysis of
this issue,” and instead “imposes an inadequate subjective test, coupled with an
undefined category of inferred intent acts.” Id. at 291-292.
Confusion Regarding the Substantial Certainty Test
{¶ 76} In my view, the majority today continues the retreat from the
substantial-certainty test set forth in Gearing by directing courts to infer intent as
a matter of law “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.”
The majority justifies its adoption of this new test by stating that Gearing “did not
address the question of whether intent may be inferred in cases involving acts
other than sexual molestation or murder” and that as a result, “[a] close
examination of Gearing * * * reveals that this court has limited the scope of
inferred intent.”
{¶ 77} I disagree with this narrow reading of Gearing and the artificial
limitation on the doctrine of inferred intent. Gearing recognized that the
substantial-certainty test “is inherent in our past decisions,” 76 Ohio St.3d at 39,
22
January Term, 2010
665 N.E.2d 1115, including our decision in Physicians Ins. Co. v. Swanson
(1991), 58 Ohio St.3d 189, 569 N.E.2d 906, where we held that the intentional
shooting of a BB gun would not necessarily have resulted in the injury and
approved of the premise that “ ‘resulting injury which ensues from the volitional
act of an insured is still an “accident” within the meaning of an insurance policy if
the insured does not specifically intend to cause the resulting harm or is not
substantially certain that such harm will occur.’ ” (Emphasis added.) Id. at 193,
quoting Quincy Mut. Fire Ins. Co. v. Abernathy (1984), 393 Mass. 81, 84 469
N.E.2d 797. Thus, in Gearing, the court contemplated that the test could be
applied in circumstances beyond molestation. The court’s lack of speculation as
to specific circumstances in which the test would permit an inference of intent as
a matter of law is in keeping with the proper role of the court to decide only those
issues before it. Opinions should be confined to the facts presented by the case,
and therefore, no inference can or should be made from the manner in which the
court wrote Gearing with respect to the court’s intent to limit or expand the scope
of the doctrine of inferred intent.
{¶ 78} We adhere to our precedent in conformity with a doctrine known
as stare decisis et non quieta movere – “to stand by things decided, and not to
disturb settled points.” See Black’s Law Dictionary (9th Ed.2009) 1537. Our
prior decisions have established the law of the doctrine of inferred intent, and the
courts below applied it. We have a body of case authority designed to deal with
circumstances arising from those who engage in conduct that is so inherently
injurious that it cannot be performed without causing resulting injury. Intent to
injure is properly inferred as a matter of law from the act of placing an obstruction
out of the line of sight of a motorist below the crest of a grade at night, in the
middle of a lane of eastbound traffic on a 55 m.p.h. highway, because that act is
substantially certain to cause injury. Here, the teens anticipated injury because
they repeatedly drove past the deer to witness the reactions of oncoming motorists
23
SUPREME COURT OF OHIO
as they encountered the deer, and their deposition testimony is that they witnessed
Roby drive past them, and they witnessed the aftermath of the crash. These
actions more than suggest that they knew that injury would occur; they anticipated
it and waited for it. Our case law applies to these circumstances because these
teens knew injury would result from their conduct. Because their deliberate
actions were designed to result in injury substantially certain to occur, the injury
to Roby and Zachariah was not an accident, and thus not an occurrence as defined
by the language in these policies. As a result, the exclusions in each of these
policies should apply to the facts of these cases. Accordingly, the insurance
companies should have no duty to defend or indemnify their insured because
these injuries resulted from an intentional act, and the policies exclude coverage
for intentional acts. Thus, I would reverse the judgment of the Tenth District
Court of Appeals and reinstate the judgment of the trial court. Because today the
majority departs from and confuses our established case law on the doctrine of
inferred intent and our holding in Gearing and instead adopts its own preferred
test for the application of the inferred-intent rule, I respectfully dissent.
LUNDBERG STRATTON, J., concurs in the foregoing opinion.
__________________
CUPP, J., concurring in part and dissenting in part.
{¶ 79} I concur in paragraph one of the syllabus, which holds, “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.” I also concur in part in
the court’s judgment insofar as it affirms the court of appeals’ judgment that the
trial court erred in granting Erie’s and Grange’s motions for summary judgment.
{¶ 80} I further agree with the court that there is no coverage under the
American Southern policy and that American Southern is therefore under no duty
to defend or indemnify Dailyn Campbell and his parent. For that reason, I concur
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January Term, 2010
in part in the court’s judgment insofar as it reverses the judgment of the court of
appeals as it applies to American Southern.
{¶ 81} However, unlike the majority, I conclude that there is no coverage
under Allstate Insurance Company’s policy. In contrast to the other policies in
this case, which exclude from coverage harm that is expected or intended by the
insured, the Allstate policy includes language that excludes coverage for bodily
injury or property damage “which may reasonably be expected to result from the
intentional or criminal acts or omissions of” an insured. As the majority concludes
with regard to the American Southern policy, language that excludes bodily injury
or property damage that results from “an intentional act” of the insured is broad.
The Allstate policy’s addition of the qualifier that the harm must have been
“reasonably” expected to result from the intentional act, in my view, does not
warrant different treatment of the Allstate policy from the American Southern
policy. While the car crash that occurred in this case was not “certain” to occur—
at least in the manner that it did—it is hard to dispute that such an event could
“reasonably” be expected to result from the “intentional * * * acts” of the
teenagers in this case, a more objective than subjective standard. In my view,
there is no genuine issue of material fact with regard to that issue under Allstate’s
policy, because under the objective “reasonably * * * expected to result” standard
in that policy, the boys’ professed subjective intent not to harm anyone is
immaterial. Accordingly, I also would reverse the judgment of the court of
appeals with regard to Allstate and reinstate the trial court’s summary judgment in
favor of Allstate. I would hold that Allstate is under no duty to defend or
indemnify Dailyn Campbell’s parent and the parents of Jesse Howard.
__________________
Crabbe, Browne & James, L.L.P., and Daniel J. Hurley, for appellant
Allstate Insurance Company.
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SUPREME COURT OF OHIO
Mazza & Associates and Robert H. Willard, for appellant American
Southern Insurance Company.
Caborn & Butauski Co., L.P.A., David A. Caborn, and Elizabeth D.
Owsley, for appellant Erie Insurance Exchange.
Gary L. Grubler, for appellant Grange Mutual Casualty Company.
Karr & Sherman Co., L.P.A., Keith M. Karr, and David W. Culley, for
appellee Robert J. Roby Jr.
Paul O. Scott Co., L.P.A., and Paul O. Scott, for appellees Dustin S.
Zachariah and Katherine E. Piper.
Reminger Co., L.P.A., Brian D. Sullivan, and Clifford C. Masch, urging
reversal for amicus curiae Ohio Association of Civil Trial Attorneys.
Paul W. Flowers Co., L.P.A., and Paul W. Flowers, urging affirmance for
amicus curiae Ohio Association for Justice.
______________________
26