Krewina v. United Specialty Ins. Co.

[Cite as Krewina v. United Specialty Ins. Co., 2021-Ohio-4425.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

AUSTIN KREWINA, : APPEAL NO. C-210163

TRIAL NO. A-1903706

Plaintiff-Appellant, :

vs. :

O P I N I O N.

UNITED SPECIALTY INSURANCE :

CO.,

:

Defendant-Appellee.

:

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Case Remanded

Date of Judgment Entry on Appeal: December 17, 2021

Mezibov Butler and Brian J. Butler, and Goodson & Company and Brett Goodson,

for Plaintiff-Appellant,

Collins Roche Utley & Garner LLC and Richard M. Garner, for Defendant-Appellee.

OHIO FIRST DISTRICT COURT OF APPEALS

BOCK, Judge.

{¶1} Plaintiff-appellant Austin Krewina appeals the trial court’s declaratory

judgment, which determined that his claims were not covered by an insurance policy

issued by defendant-appellee United Specialty Insurance Company (“USIC”). The

question here is whether the acts of a person living with a mental-health condition

that renders him incapable of governing his conduct in accordance with reason

triggered the policy exclusion for assault or battery, or a liability-limitation

endorsement for physical abuse. We hold that those acts do not trigger the exclusion

or the endorsement and reverse the judgment of the trial court.

I. Facts and Procedure

{¶2} Austin Krewina and Colin Doherty lived at the Brown County Care

Center (“BCCC”), a group care facility that provided room and board for adults

transitioning from jails and restrictive health facilities to independent living. In

September 2014, Doherty attacked Krewina with a razor blade. The details

surrounding the attack are unclear, but Krewina survived despite multiple

lacerations to his face and neck.

A. The Policy

{¶3} In 2014, BCCC contracted with USIC for liability coverage under a

commercial general liability policy (“Policy”). The Policy covered BCCC as a “group

home” service provider. Under the Policy, USIC agreed to pay “those sums” for which

BCCC became liable “because of any negligent act, error or omission with respect to

professional services, rendered by or that should have been rendered by [BCCC]”

that led to bodily injury. In this appeal, two provisions are at issue.

2

OHIO FIRST DISTRICT COURT OF APPEALS

{¶4} First, the “Assault and Battery Exclusion” (“Exclusion”) limited

coverage by USIC. At its core, the Policy left BCCC without coverage for any claims of

bodily injury arising out of an actual, threatened, or alleged assault or battery:

1. This insurance does not apply to “bodily injury”, “property

damage”, or “personal and advertising injury” arising out of or

resulting from:

(a) any actual, threatened or alleged assault or battery;

(b) the failure of any insured or anyone else for whom any

insured is or could be held legally liable to prevent or

suppress any assault or battery;

****

2. We shall have no duty to defend or indemnify any claim, demand,

suit, action, litigation, arbitration, alternative dispute resolution or

other judicial or administrative proceeding seeking damages,

equitable relief, injunctive relief, or administrative relief where:

(a) any actual or alleged injury arises out of any combination of

an assault or battery-related cause of action and a non-

assault or battery-related cause.

(b) any actual or alleged injury arises out of a chain of events

which includes assault or battery, regardless of whether the

assault or battery is the initial precipitating event or a

substantial cause of injury.

(c) any actual or alleged injury arises out of assault or battery

as a concurrent cause of injury, regardless of whether the

assault or battery is the proximate cause of injury.

3

OHIO FIRST DISTRICT COURT OF APPEALS

The Exclusion left the words “assault” and “battery” undefined.

{¶5} Second, the policy had a “Physical and Sexual Abuse Amendatory

Endorsement” (“Endorsement”). The Endorsement modified the policy and extended

coverage to any “bodily injury” caused by “any actual, threatened or alleged physical

or sexual abuse or molestation to any person left under [BCCC’s] care or supervision

as a licensed care provider.” While physical-abuse claims were covered under the

policy, the Endorsement limited coverage to $25,000 per each instance of physical

abuse and a $50,000 total limitation. The Endorsement left “abuse” undefined.

B. State v. Doherty

{¶6} The state indicted Doherty for multiple counts of attempted murder,

attempted aggravated murder, and felonious assault in the Brown County Court of

Common Pleas. State v. Doherty, Brown C.P. No. CRI2014-2191 (Jan. 1, 2015). In

2015, the Brown County court found Doherty not guilty by reason of insanity—that

Doherty “did not know, as a result of a severe mental disease or defect, the

wrongfulness of [his] acts.” See R.C. 2901.01(A)(14) and 2945.391.

{¶7} Weeks later, the Brown County court held an R.C. 2945.40(A) hearing

to determine if Doherty had a mental illness that required court supervision and civil

commitment. Based on psychiatric and psychological reports, the court found that

Doherty lived with “auditory hallucinations that have involved command

hallucinations that indicate homicidal threats and aggression toward others.”

Doherty experienced “delusional beliefs and paranoia, which commonly involve[d]

themes that other individuals are attempting to harm him.” The trial court found, by

clear and convincing evidence, that Doherty had a mental illness that required his

involuntary commitment.

4

OHIO FIRST DISTRICT COURT OF APPEALS

C. Krewina v. BCCC

{¶8} In 2016, Krewina sued BCCC and Doherty for damages in the

Hamilton County Court of Common Pleas. Krewina alleged that Doherty had

negligently caused Krewina’s physical injuries and that BCCC “negligently, recklessly,

and carelessly failed to keep” Krewina free from abuse, physical harm, pain, and

mental anguish. BCCC sought defense and indemnification from USIC under the

Policy, but USIC refused. Specifically, USIC concluded that “the policy excludes

coverage for any cause of action arising out of any actual, threatened, or alleged

assault and battery.” BCCC filed a third-party complaint against USIC for multiple

claims, including breach of contract.

{¶9} While those claims were pending, Krewina and BCCC entered into a

“Settlement Agreement, Consent Judgment and Covenant Not To Execute”

(“Settlement Agreement”). In turn, the trial court entered a judgment against BCCC

in accordance with the Settlement Agreement and awarded Krewina $952,924.36 in

damages. Krewina v. Brown County Care Center, LLC, Hamilton C.P. No. A-

1600368 (Nov. 15, 2016). In the Settlement Agreement, Krewina and BCCC

stipulated that when “Doherty inflicted serious bodily injury on Krewina, [he]

suffered from a derangement of his intellect which deprived him of his capacity to

govern his conduct in accordance with reason.” BCCC assigned all claims against

USIC to Krewina and voluntarily dismissed its third-party claims against USIC.

{¶10} Following that judgment, Krewina sought payment from USIC as the

successor-in-interest to BCCC’s insurance policy under R.C. 3929.06(A)(1). Krewina

filed a supplemental complaint against USIC; USIC answered and counterclaimed.

But the trial court lacked jurisdiction to reopen the case, so it severed Krewina’s

supplemental complaint and reassigned the case.

5

OHIO FIRST DISTRICT COURT OF APPEALS

D. Krewina v. USIC

{¶11} The parties refiled their pleadings and submitted the case to the trial

court “for resolution on the pleadings, stipulations, and legal arguments.” Krewina

requested a declaratory judgment that the Policy covered Krewina’s judgment

against BCCC and sought indemnification from USIC for $952,924.36, plus interest.

Krewina alleged that BCCC had breached its duty to provide Krewina a safe

environment “free from abuse, physical harm, pain and mental anguish.” Krewina

alleged that Doherty had “suffered from a derangement of his intellect which

deprived him of the capacity to govern his conduct in accordance with reason.”

{¶12} In a “Joint Stipulation of Facts,” the parties recounted the injuries

sustained by Krewina, Doherty’s criminal trial, and the preceding civil litigation

between Krewina and BCCC. Relevant here, the parties agreed that all facts and

evidence contained in the “Joint Stipulation of Facts” were “stipulated and

admissible in relation to Krewina’s Supplemental Complaint.” The Joint Stipulation

of Facts attachments included the stipulation that when “Doherty inflicted serious

bodily injury on Krewina, [he] suffered from a derangement of his intellect which

deprived him of his capacity to govern his conduct in accordance with reason.”

{¶13} USIC counterclaimed and requested a declaratory judgment that the

Exclusion and Endorsement precluded coverage for Krewina’s claims, and that USIC

had no duty to indemnify those claims. In its trial brief, USIC argued that assault or

battery allegations triggered the Exclusion and Endorsement and that Doherty’s

criminal indictment alleged an assault. USIC argued in favor of a broad

interpretation of its Exclusion and Endorsement and, under that broad language,

that Krewina’s injuries were the result of an alleged assault and alleged physical

abuse.

6

OHIO FIRST DISTRICT COURT OF APPEALS

{¶14} The trial court entered judgment dismissing Krewina’s complaint. The

trial court determined that the Exclusion precluded coverage for Krewina’s claims

and USIC had no duty to indemnify or satisfy the judgment amount stipulated by

Krewina and BCCC. The trial court found that “Krewina was injured by an assault

and battery inflicted upon him by another resident of BCCC” and explained that “the

fact that Doherty was found to lack the requisite mental state for a criminal

conviction does not change that his conduct fits that plain and unambiguous

language.”

{¶15} Krewina appeals.

II. Law and Analysis

{¶16} An insurance policy is a contract and its interpretation is a matter of

law that we review de novo. Westfield Ins. Co. v. Hunter, 128 Ohio St.3d 540, 2011-

Ohio-1818, 948 N.E.2d 931, ¶ 12, citing Nationwide Mut. Fire Ins. Co. v. Guman

Bros. Farm, 73 Ohio St.3d 107, 108, 652 N.E.2d 684 (1995).

{¶17} A contract is unambiguous when the language “can be given a definite

legal meaning.” Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849,

797 N.E.2d 1256, ¶ 11. If the policy language is clear, we look no further than the

writing itself to determine the intent of the parties. William Powell Co. v. OneBeacon

Ins. Co., 2020-Ohio-5325, 162 N.E.3d 927, ¶ 11, 26, appeal not allowed, 161 Ohio

St.3d 1475, 2021-Ohio-717, 164 N.E.3d 480, citing Galatis at ¶ 11. When the policy

terms are “clear and unambiguous, [the] court cannot in effect create a new contract

by finding an intent not expressed in the clear language employed by the parties.”

Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 246, 374 N.E.2d 146 (1978).

The plain and ordinary meaning of the policy language controls our interpretation

7

OHIO FIRST DISTRICT COURT OF APPEALS

“unless manifest absurdity results” or another meaning is clearly apparent from the

policy. Id.

{¶18} Terms in an insurance policy are not ambiguous merely because the

policy fails to define them. Guman at 108. An ambiguous provision is one that is

susceptible to multiple interpretations and is strictly construed against the insurer

and liberally in favor of the insured. Hunter at ¶ 11.

A. The Assault or Battery Exclusion

{¶19} Policy exclusions are interpreted to apply only to what is expressly

intended to be excluded. Guman, 73 Ohio St.3d at 108, 652 N.E.2d 684, quoting

Hybud Equip. Corp. v. Sphere Drake Ins. Co., Ltd., 64 Ohio St.3d 657, 665, 597

N.E.2d 1096 (1992). Because the insurer drafts the policy, the exclusion’s language

must be precise, clear, and exact to be given effect. Andersen v. Highland House Co.,

93 Ohio St.3d 547, 550, 757 N.E.2d 329 (2001), quoting Am. Fin. Corp. v. Fireman’s

Fund Ins. Co., 15 Ohio St.2d 171, 174, 239 N.E.2d 33 (1968). To defeat coverage

under a policy exclusion, “the insurer must establish not merely that the policy is

capable of the construction it favors, but rather that such an interpretation is the

only one that can fairly be placed on the language in question.” Andersen at 549.

{¶20} Similar assault-and-battery exclusions are generally considered

unambiguous and this court has applied such exclusions to injuries caused by a

third-party assault. See Carter v. Adams, 173 Ohio App.3d 195, 2007-Ohio-4322, 877

N.E.2d 1015, ¶ 33 (1st Dist.).

{¶21} The central issue here is whether the acts of a third-party who

“suffered from a derangement of his intellect which deprived him of his capacity to

govern his conduct in accordance with reason” can trigger the Exclusion.

8

OHIO FIRST DISTRICT COURT OF APPEALS

1. “Actual” Assault or Battery

{¶22} The Exclusion eliminates coverage for a “bodily injury * * * arising out

of or resulting from * * * any actual, threatened or alleged assault or battery” and any

bodily injury arising from the combination of an assault or battery and another cause

or chain of causes. Assault and battery are both undefined in the policy. In their

briefs, the parties agree that the plain and ordinary meaning of “assault” includes

both the common law tort definition and statutory criminal definition.1 “The terms

‘assault’ and ‘battery’ carry specific legal connotation[s] pertaining to” unlawful

conduct. Hawk v. Stocklin, 3d Dist. Allen No. 1–13–56, 2014-Ohio-2335, ¶ 29.

a. Assault and Battery Definitions

{¶23} Ohio tort law defines a battery as acting with intent to cause a harmful

or offensive contact and a harmful contact results. Love v. City of Port Clinton, 37

Ohio St.3d 98, 99, 524 N.E.2d 166 (1988), citing Restatement of the Law 2d, Torts,

Section 13 (1965). Civil assault consists of a “willful threat or attempt to harm or

touch another offensively” and includes the “essential element * * * that the actor

knew with substantial certainty that his act would bring about harmful or offensive

contact.” Schweller v. Schweller, 1st Dist. Hamilton No. C-970183, 1997 WL 793106,

*4 (Dec. 26, 1997), quoting Love at 99.

{¶24} Ohio’s criminal statute combines the crimes of assault and battery into

one offense, which prohibits “knowingly * * * [or] recklessly caus[ing] physical harm

to another.” R.C. 2903.13(A) and (B). A person acts knowingly when “the person is

aware that the person’s conduct will probably cause a certain result or will probably

be of a certain nature.” R.C. 2901.22(B). A person is reckless when that person is

1 At oral argument, USIC contended that “assault” should be read in a nontechnical sense. But as

that argument is not contained in its brief, it is waived.

9

OHIO FIRST DISTRICT COURT OF APPEALS

acting “with heedless indifference to the consequences” or “disregards a substantial

and unjustifiable risk that the person’s conduct is likely to cause a certain result or is

likely to be of a certain nature.” R.C. 2901.22(C).

{¶25} At their core, tort claims for assault and battery require a perpetrator

to act with intent. And criminal assault requires that the defendant act knowingly or

recklessly. Consequently, for the Exclusion to apply, Doherty must have acted with

1.) intent to harm Krewina; 2.) knowledge that his actions would cause a result or

would likely be of a certain nature; or 3.) heedless indifference to the consequences

and disregarding a substantial and unjustifiable risk.

b. Relevant Caselaw

{¶26} USIC cites a number of cases involving denial of coverage for

intentional acts. There is little doubt that, but for Doherty’s mental condition, the

Exclusion would preclude coverage. But Supreme Court of Ohio precedent compels

us to explore whether the Exclusion is triggered based on Doherty’s “derangement of

his intellect” and deprivation “of his capacity to govern his conduct in accordance

with reason.”

{¶27} More than 25 years ago, the Supreme Court of Ohio considered

whether an insurance policy exclusion that limits coverage for a bodily injury

intended or expected by the insured “appl[ied] under circumstances where the

insured was mentally incapable of committing an intentional act.” Nationwide Ins.

Co. v. Estate of Kollstedt, 71 Ohio St.3d 624, 627, 646 N.E.2d 816 (1995). In

Kollstedt, the court addressed whether an intended-or-expected-injury exclusion

applied to injuries caused by an insured who, according to mental-health

professionals, lived with “degenerative dementia of the Alzheimer type and senile

onset with delirium.” Id. In the context of that exclusion, the court explained that an

10

OHIO FIRST DISTRICT COURT OF APPEALS

individual’s acts are not “ ‘intentional’ if the insured was suffering from a

derangement of his intellect which deprived him of the capacity to govern his

conduct in accordance with reason.” Id. at 626, quoting Nationwide Mut. Fire Ins.

Co. v. Turner, 29 Ohio App.3d 73, 76, 503 N.E.2d 212 (8th Dist.1986). As the insured

could not form the requisite intent, the intentional-act exclusion did not apply.

Kollstedt at 627.

{¶28} That approach is consistent with the principle that affirmative

defenses render otherwise unlawful conduct lawful. See State v. Faggs, 159 Ohio

St.3d 420, 2020-Ohio-523, 151 N.E.3d 420, ¶ 21. In the context of an insured’s self-

defense, “use of force was not wrongful under the law, did not constitute a ‘battery,’

and [the] injury did not arise from ‘an actual battery.’ ” Hawk, 3d Dist. Allen No. 1-

13-56, 2014-Ohio-2335, at ¶ 29. In Hawk, the Third District reversed the trial court’s

grant of summary judgment in favor of an insurer who denied coverage based on an

exclusion for a bodily injury “arising out of an actual or threatened assault or

battery.” Id. at ¶ 18, 32.2 In that case, a bar employee had punched a patron, allegedly

in self-defense. Id. at ¶ 5. The parties agreed that the insured’s employee had

intentionally hit the victim. Id. at ¶ 18. The Third District rejected the insurer’s

argument that, regardless of the circumstances, the employee’s use of force

constituted a battery. Id. at ¶ 29-30. The court emphasized that “the critical

distinction between an ‘intentional act’—a mere factual description of one’s conduct,

and an ‘assault’ and/or ‘battery’—terms which denote a conclusion of law pertaining

to conduct determined to be wrongful, i.e., an “intentional tort.’ ” Id. at ¶ 25. The

Third District refused to “erroneously blur [that] distinction.” Id. When the policy

2Though the original policy had stated that the exclusion did not apply to use of reasonable force

to protect persons or property, an endorsement in place when the bar owner purchased the policy

did not include that language.

11

OHIO FIRST DISTRICT COURT OF APPEALS

left the terms “assault” and “battery” undefined, the court looked to the plain and

ordinary meaning of those terms and held that the terms “carry a specific legal

connotation pertaining to conduct constituting intentional torts.” Id. at ¶ 29.

c. Doherty’s acts did not constitute “actual assault”

{¶29} USIC contends that “under the undisputed facts, Krewina cannot

argue that no actual assault or battery occurred because of Doherty’s” mental-health

condition. Appellee Brief, 12-13. We disagree.

{¶30} The parties do not dispute that Doherty inflicted serious bodily injury

on Krewina. The issue here is whether Doherty’s act fit either the civil or criminal

definition of assault. In other words, did Doherty 1.) intend to cause harmful or

offensive contact, 2.) know his actions would cause Krewina’s injuries, or 3.) act with

heedless indifference to the consequences of his actions and disregard a substantial

risk that Krewina would suffer injuries?

{¶31} According to the facts incorporated into the joint stipulation, Doherty

“suffered from a derangement of his intellect which deprived him of his capacity to

govern his conduct in accordance with reason.” Under Kollstedt, one who lacks the

capacity to govern his conduct in accordance with reason cannot act intentionally.

{¶32} Considering the precedent in Kollstedt—a precedent by which we are

constrained—when a person’s “derangement of intellect” deprives him of “the

capacity to govern his conduct in accordance with reason,” it follows that he cannot

know that his actions would cause such injuries and cannot act with heedless

indifference or disregard a substantial risk.

{¶33} USIC argues that Kollstedt’s reasoning applies narrowly to policy

exclusions that preclude coverage for bodily injuries that are “expected or intended.”

Once again, we disagree. USIC is correct that its Exclusion language is broader than

12

OHIO FIRST DISTRICT COURT OF APPEALS

and distinct from the language of Kollstedt. But the language does not clearly and

explicitly exclude coverage in this case.

{¶34} While the trial court did not determine or address Doherty’s mental

capacity, the record below incorporated—without objection—the stipulated fact that

Doherty “suffered from a derangement of his intellect which deprived him of his

capacity to govern his conduct in accordance with reason.” For that reason, we find

that Doherty did not commit an actual assault or an actual battery. See Hawk, 3d

Dist. Allen No. 1–13–56, 2014-Ohio-2335, at ¶ 29.

{¶35} USIC next argues that the Exclusion applied to Krewina’s claims

because “an insane or otherwise mentally disordered person is civilly liable for

injuries resulting from their intentional torts.” Clark v. Estate of Halloran, 8th Dist.

Cuyahoga No. 64576, 1994 WL 11321, *1 (Jan. 13, 1994). But Clark recognized a key

distinction between tort law and insurance law in its analysis: “[t]hey involve two

fundamentally different areas of law, each founded on separate and distinct legal

theories and principles.” Id. at *2, citing Rajspic v. Nationwide Mut. Ins. Co., 110

Idaho 269, 718 P.2d 1167, 1170 (1986).

{¶36} Following a not-guilty-by-reason-of-insanity verdict, a person could,

under some circumstances, commit an assault or a battery. But the Exclusion here

“does not apply under circumstances [if Doherty] was mentally incapable of

committing an intentional act.” Kollstedt, 71 Ohio St.3d at 627, 646 N.E.2d 816.

Because Doherty “suffered from a derangement of his intellect which deprived him of

his capacity to govern his conduct in accordance with reason,” Doherty did not act

intentionally, knowingly, or recklessly. Therefore, Krewina’s bodily injury did not

arise out of an actual assault or battery.

13

OHIO FIRST DISTRICT COURT OF APPEALS

2. “Alleged” Assault or Battery

{¶37} Pivoting from an actual assault or battery, USIC claims that the assault

allegation in Doherty’s criminal indictment triggered the Exclusion. We find this

argument unpersuasive. First, we note that when we consider an insured’s duty to

indemnify, what matters are the conclusive facts and resulting judgment. Pilkington

N. Am., Inc. v. Travelers Cas. & Sur. Co., 112 Ohio St.3d 482, 2006-Ohio-6551, 861

N.E.2d 121, ¶ 33. According to the Settlement Agreement, “Krewina suffered from a

permanent and physical deformity, specifically, serious lacerations to his face and

neck.” As discussed, the Settlement Agreement also stated that “Doherty suffered

from a derangement of his intellect which deprived him of the capacity to govern his

conduct in accordance with reason.” With these facts in mind, we find that the

conclusive facts and resulting judgment fail to allege an assault or battery.

{¶38} “Alleged” means “asserted to be true as described” or “accused but not

yet tried.” Black’s Law Dictionary 82 (8th Ed.2004). Similarly, “allegation” means

“[a] declaration that something is true; esp., a statement, not yet proved, that

someone has done something wrong or illegal” and “[s]omething declared or

asserted as a matter of fact, esp. in a legal pleading; a party’s formal statement that of

a factual matter as being true or provable, without its having yet be proved.” Black’s

Law Dictionary 81 (8th Ed.2004). In general usage dictionaries, alleged means

“[r]epresented as existing or as being as described but not so proved.” Webster’s New

College Dictionary 28 (1995). Thus, assuming Doherty’s indictment were an

appropriate foundation for analyzing USIC’s duty to indemnify, the allegations stated

in the indictment could have triggered the Exclusion if the assault charges were not

yet tried.

14

OHIO FIRST DISTRICT COURT OF APPEALS

{¶39} But the Brown County Court of Common Pleas adjudicated the

allegations of assault in the criminal indictment one year before USIC refused to

defend or indemnify BCCC—a fact that we cannot ignore. When an allegation is

disproven—as it was here—an insurer cannot escape coverage simply because

someone made an allegation at one point in the process. Doherty’s criminal

allegations are not perpetual. Rather, the final judgment of an Ohio court

extinguished the allegations. In the end, USIC cannot rely on a mere allegation to

escape coverage while ignoring the adjudication of that allegation.

{¶40} Finding no alleged assault or battery, and no actual assault or battery,

we hold Part 1 of the Exclusion does not apply. In turn, coverage is not defeated by

Part 2 of the Exclusion. As discussed, Doherty’s acts do not fit a legal definition of

assault or battery. Therefore, Part 2 does not explicitly preclude coverage.

Accordingly, Krewina’s injuries stemming from BCCC’s negligence are entitled to

coverage under USIC’s policy.

B. The Abuse Endorsement

{¶41} Turning to the Endorsement, USIC contends that Krewina’s injuries

are subject to the Endorsement’s liability sublimits. The Endorsement contains a

$25,000 sublimit for each claim involving a “ ‘bodily injury’ arising out of * * * [a]ny

actual, threatened, or alleged physical or sexual abuse or molestation to any person

left under [BCCC’s] care or supervision as a licensed care provider.” Abuse is left

undefined in the Policy, so we must look to the plain and ordinary meaning of the

word, which can be found in a criminal statute.

{¶42} R.C. 2903.34(A)(1) criminalizes abuse and neglect of care-facility

patients. R.C. 2903.34(A)(1). BCCC qualified as a care facility and, relevant here, the

15

OHIO FIRST DISTRICT COURT OF APPEALS

statute defined abuse as “knowingly causing physical harm or recklessly causing

serious physical harm to a person by physical contact.” R.C. 2903.33(B).

{¶43} As such, Doherty’s acts constituted physical abuse if he knowingly or

recklessly caused physical harm to Krewina. And as discussed, our inquiry is

confined to the conclusive facts and resulting judgment. Pilkington, 122 Ohio St.3d

482, 2006-Ohio-6551, 861 N.E.2d 121, at ¶ 33.

{¶44} USIC contends that allegations of physical abuse triggered the

Endorsement. USIC first argues that the Settlement contains allegations of physical

abuse. In the Settlement, Krewina and BCCC stipulated that Krewina suffered

injuries stemming from BCCC’s failure to “keep residents free from abuse, physical

harm, pain, and mental anguish.” Similarly, the supplemental complaint alleged that

“BCCC has a duty to provide its residents a safe living environment and to keep

residents free from abuse, physical harm, pain, and mental anguish.”

{¶45} Abuse, by R.C. 2903.34(A)(1)’s definition (and in the ordinary sense of

the term), requires a person to act knowingly, intentionally, or recklessly. But, as we

have explained, the facts stipulated that Doherty lacked the capacity to govern his

conduct in accordance with reason. Also as explained, Doherty’s lack of capacity

rendered him incapable of committing an act—including abuse—intentionally,

knowingly, or recklessly.

{¶46} Accordingly, Doherty’s conduct did not constitute an “alleged,

threatened or alleged” physical abuse of Krewina.

III. Conclusion

{¶47} Doherty lacked the capacity to act intentionally, knowingly, or

recklessly. As such, Doherty’s attack on Krewina triggered neither the Exclusion nor

the Endorsement and we sustain his assignment of error. The trial court’s judgment

16

OHIO FIRST DISTRICT COURT OF APPEALS

is reversed. We remand this case to the trial court to enter judgment against USIC

consistent with this opinion.

Judgment reversed and case remanded.

ZAYAS, P.J., concurs.

MYERS, J., concurs separately.

MYERS, J., concurring separately.

{¶48} I agree with the majority that based on Nationwide Ins. Co. v. Estate

of Kollstedt, 71 Ohio St.3d 624, 646 N.E.2d 816 (1995), we must reverse and remand

this case to the trial court. I write separately because I urge the Supreme Court of

Ohio to review this case and its holding in Kollstedt.

{¶49} In Kollstedt, the court held that an exclusion for intentional injuries

did not apply when the insured was mentally incapable of committing an intentional

act. Id. at 627. And, I agree with the majority that the reasoning of Kollstedt

compels us to conclude that if Doherty was incapable of legally committing an

assault, the assault and battery exclusion in our case likewise does not apply. This

result, however, seems to be in contrast to the common understanding of an assault

and the plain meaning of the terms.

{¶50} From the victim Krewina’s standpoint, surely he would believe he was

the victim of an assault, even if Doherty was found not guilty by reason of insanity.

And from a policy holder’s perspective, surely they would believe that an attack upon

a person with a knife would constitute an assault under the policy, causing it to come

under the exclusion. It does not make sense to me to have the exclusion dependent

upon the mental state of the perpetrator as opposed to the conduct trying to be

17

OHIO FIRST DISTRICT COURT OF APPEALS

excluded under the policy. In other words, the very same attack would be excluded if

the perpetrator was someone other than Doherty who had the mental capacity to

commit the crime/tort of assault.

{¶51} If not constrained by my interpretation of what Kollstedt requires, I

would find that the exclusion applied.

Please note:

The court has recorded its entry on the date of the release of this opinion

18