BUCKEYE UNION INSURANCE COMPANY, RESPONDENT, v. NEW ENGLAND
INSURANCE COMPANY, PETITIONER.
[Cite as Buckeye Union Ins. Co. v. New England Ins. Co. (1999), 87 Ohio St.3d
280.]
Insurance — Insurer found guilty of bad faith with actual malice in failing to settle
a tort case against its insured — Such conduct does not constitute the type of
intentional tort that is uninsurable under Ohio law.
(No. 98-1268 — Submitted March 10, 1999 — Decided December 22, 1999.)
ON ORDER from the United States Court of Appeals for the Sixth Circuit Certifying
Questions of State Law, No. 97-3356.
Buckeye Union Insurance Company (“Buckeye”) brought this underlying
action in federal district court to recover under a professional liability insurance
policy issued to it by New England Insurance Company (“New England”).
Pursuant to the policy, New England agreed to indemnify Buckeye as to any:
“(A) Loss which the Insured shall become legally obligated to pay, from any
claim made against the Insured during the Policy Period, by reason of any act,
error or omission committed or alleged to have been committed in the rendering of
or the failing to render professional services.
“(B) Costs and expenses incurred by the Insured in the defense of any claim
for which coverage is provided by this Policy.”
The policy contained an exclusion from coverage that set forth that “this
Insurance shall not cover any Insured whose personal dishonesty, fraudulent
breach of trust, or intention to deceive or defraud has been finally adjudicated or
may be established.”
The policy is at issue because of events that began to unfold over twenty
years ago. Various incarnations of the case have been winding their way through
the legal system since then—one aspect was decided by this court in Leber v. Smith
(1994), 70 Ohio St.3d 548, 639 N.E.2d 1159 (“Leber II”), which more fully sets
forth the underlying facts. Briefly, on April 7, 1979, Erie County Deputy Steven
Smith, while attempting to apprehend Eugene Leber, accidentally shot Leber,
rendering him a paraplegic. In June 1983, Leber and his parents filed a personal
injury action in the Erie County Court of Common Pleas against Deputy Smith, the
Sheriff of Erie County, and the Board of Commissioners of Erie County (“Board”).
(“Leber I”)
At the time of the accident, the Sheriff’s department was insured by
American Home Assurance Company, while the Board and its employees were
insured by Buckeye.
Prior to the trial, the Lebers offered to settle for the limits of both insurance
policies. Buckeye refused the settlement offer, claiming that the Board was not
liable to the Lebers, since Smith was not an employee of the Board. The trial jury
found that both Deputy Smith and the Sheriff were negligent, and awarded the
Lebers damages in the amount of $10,390,000, which the trial judge remitted to
$10,150,000. The trial judge also ruled that the Board was vicariously liable as a
matter of law.
Both sides appealed the verdict but dismissed the appeals when they reached
a settlement agreement. As part of the settlement agreement, the Board assigned
its indemnity rights against Buckeye to the Lebers.
Leber, as the Board’s assignee, then sued Buckeye for bad-faith refusal to
settle Leber’s claim against the Board (“Leber II”). The jury in that case returned a
verdict against Buckeye, finding in jury interrogatories that “Buckeye Union
Insurance Company’s conduct in failing to settle the Leber’s [sic] claims was
motivated by actual malice,” and that Buckeye’s conduct “imported a dishonest
purpose, moral obliquity, conscious wrongdoing, breach of a known duty through
some ulterior motive or ill will partaking of the nature of fraud or embracing actual
2
intent to mislead or deceive another.” The trial court entered a total judgment of
$13,336,232.80 against Buckeye.
Buckeye launched a successful appeal. The court of appeals reversed the
trial court, holding that since Buckeye’s insured was not liable for the injury
caused by Deputy Smith, Buckeye could not have acted in bad faith in refusing to
settle the Lebers’ claim. This court, however, reversed the court of appeals and
reinstated the jury verdict against Buckeye.
On December 14, 1994, Buckeye paid $23,044,279.28 to the Lebers, which
included $9,708,046.48 in postjudgment interest. After paying the Leber judgment
in full in December 1994, Buckeye made a claim for reimbursement under the
professional liability policy issued by New England. New England refused the
claim. On April 27, 1995, Buckeye brought the present underlying suit in the
United States District Court for the Northern District of Ohio against New
England, seeking a declaration of coverage under the policy and seeking damages
for New England’s breach of contract.
Both parties filed motions for summary judgment. The judge granted New
England’s motion, ruling that the Leber II jury verdict and interrogatory answers
judicially established that Buckeye had committed an intentional tort with an intent
to injure, therefore precluding any insurance coverage.
Buckeye appealed to the Sixth Circuit Court of Appeals. That court has
certified three questions to this court:
“1. When an insurance company is found by Ohio courts to be guilty of ‘bad
faith’ with ‘actual malice’ because it failed to settle a tort case against its insured,
does such conduct constitute the type of intentional tort that is uninsurable under
Ohio law?
“2. Does such a finding of bad faith with actual malice collaterally estop
Buckeye from litigating this case?
3
“3. Under Ohio law does an exclusion in an insurance policy barring
coverage for personal dishonesty, fraudulent breach of trust, intention to deceive,
or intent to defraud embrace an insurer’s bad faith with actual malice caused by its
failure to settle a tort case?”
__________________
Squire, Sanders & Dempsey, L.L.P., and David J. Young; Chester, Wilcox &
Saxbe, L.L.P., and John J. Chester, for respondent.
Thompson, Hine & Flory, L.L.P., and Bruce M. Allman; Louis G. Adolfsen
and S. Dwight Stephens, pro hac vice, for petitioner.
__________________
PFEIFER, J. We answer the certified questions thusly: (1) No, (2) No, and
(3) We decline to answer.
Question 1
“When an insurance company is found by Ohio courts to be guilty of ‘bad
faith’ with ‘actual malice’ because it failed to settle a tort case against its insured,
does such conduct constitute the type of intentional tort that is uninsurable under
Ohio law?”
We find that an insurer found to be guilty of bad faith with actual malice in
failing to settle a tort case against its insured is not necessarily guilty of the type of
intentional tort that is uninsurable under Ohio law.
Not all intentional torts are uninsurable in Ohio. Ohio law, on public policy
grounds, generally prohibits liability insurance from covering damage caused by
intentional torts. Gearing v. Nationwide Ins. Co. (1996), 76 Ohio St.3d 34, 38, 665
N.E.2d 1115, 1118; Harasyn v. Normandy Metals, Inc. (1990), 49 Ohio St.3d 173,
176, 551 N.E.2d 962, 965.
But intentional acts sometimes lead to unintentional harms. In Harasyn, this
court discussed the different levels of intent involved with intentional acts. “The
4
first level, * * * ‘direct intent,’ is where the actor does something which brings
about the exact result desired. In the second, the actor does something which he
believes is substantially certain to cause a particular result, even if the actor does
not desire that result.” Harasyn, 49 Ohio St.3d at 175, 551 N.E.2d at 964. The
court concluded that insurance coverage should be prohibited only for direct-intent
torts.
In Physicians Ins. Co. of Ohio v. Swanson (1991), 58 Ohio St.3d 189, 569
N.E.2d 906, syllabus, this court held that “[i]n 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.” In Swanson, the insured fired a BB
gun toward a group of children. While he intended to shoot the gun, he did not
intend to hit any of the children. This court held that the insurer must provide
coverage to the shooter for injuries one of the children suffered.
Thus, an intent to injure, not merely an intentional act, is a necessary
element to uninsurability. Whether the insured had the necessary intent to cause
injury is a question of fact. Swanson, 58 Ohio St.3d at 193, 569 N.E.2d at 911. In
very limited instances, this court has held that the intent to injure can be inferred as
a matter of law under certain circumstances. In Preferred Risk Ins. Co. v. Gill
(1987), 30 Ohio St.3d 108, 30 OBR 424, 507 N.E.2d 1118, intent to injure was
inferred from the defendant’s criminal conviction for aggravated murder, an
essential element of which is that the perpetrator intended to cause the death. In
Gearing, this court held that the intent to injure could be inferred from the
insured’s plea of guilty to charges involving the sexual molestation of minors. The
court reasoned that the act and the harm are so intertwined in regard to molestation
of children that to intend the act is also to intend the harm.
In both of the above cases, insureds were found to have committed wrongful
acts, acts that are intentionally injurious by definition. Here, Buckeye claims to
5
have intended to assert what it believed were its rights under an insurance contract.
In certain circumstances, insurers are perfectly right to take such a stand. Murder
and molestation do not enjoy similar sometime rectitude, and we therefore will not
place failure to settle an insurance claim on their same plane. This court does not
infer specific intent to injure from an act of contract interpretation.
Therefore, in this case we apply the normal standard of determining intent to
injure, a factual determination relating to this unique case. A jury has already
spoken somewhat to Buckeye’s conduct. Our duty is to determine whether the jury
found that Buckeye had committed a direct-intent tort. New England argues that
the jury expressed that finding in three ways: through the general verdict of bad
faith, through its interrogatory answer regarding bad faith, and through its
interrogatory answer regarding actual malice. We disagree.
When the Leber II litigation commenced in 1987, the standard for bad-faith
failure to settle an insurance claim was that contained in Slater v. Motorists Mut.
Ins. Co. (1962), 174 Ohio St. 148, 21 O.O.2d 420, 187 N.E.2d 45. The second
paragraph of the syllabus in Slater set forth the standard:
“A lack of good faith is the equivalent of bad faith, and bad faith, although
not susceptible of concrete definition, embraces more than bad judgment or
negligence. It imports a dishonest purpose, moral obliquity, conscious
wrongdoing, breach of a known duty through some ulterior motive or ill will
partaking of the nature of fraud. It also embraces actual intent to mislead or
deceive another.”
The jury instructions in Leber II contained the above language from the
Slater syllabus. However, the instructions also contained language from Hoskins
v. Aetna Life Ins. Co. (1983), 6 Ohio St.3d 272, 6 OBR 337, 452 N.E.2d 1315, a
case that applied a “reasonable justification” standard for bad-faith claims. This
court in Hoskins stated that “when an insure[r] insists that it was justified in
6
refusing to pay a claim of its insured because it believed there was no coverage of
the claim, ‘ * * * such a belief may not be an arbitrary or capricious one. The
conduct of the insurer must be based on circumstances that furnish reasonable
justification therefor.’ “ Hoskins at 277, 6 OBR at 341, 452 N.E.2d at 1320. The
above Hoskins language also appeared in the jury instruction on bad faith in Leber
II.
Intent as a necessary aspect of bad faith is missing from both Hoskins and
Slater. As this court stated in Zoppo v. Homestead Ins. Co. (1994), 71 Ohio St.3d
552, 554, 644 N.E.2d 397, 399, “the element of intent had been noticeably absent
from this court’s definition of when an insurer acts in bad faith” until this court’s
decision in Motorists Mut. Ins. Co. v. Said (1992), 63 Ohio St.3d 690, 590 N.E.2d
1228.
While the Slater language in the jury instruction does mention intent, it is
not described as a necessary element of bad faith. The Hoskins language is
completely void of intent. And in no case is the intent to injure an elemental part
of bad faith. Thus we do not determine that the jury found an intent to injure in
arriving at its verdict of bad faith.
The Slater language arises again in this case in jury Interrogatory No. 4.
The question mimics the Slater language from the jury instruction, and asks:
“Do you find, by a preponderance of the evidence, that the Buckeye Union
Insurance Company’s conduct at any time imported a dishonest purpose, moral
obliquity, conscious wrongdoing, breach of a known duty through some ulterior
motive or ill will partaking of the nature of fraud or embracing actual intent to
mislead or deceive another.”
The jury responded affirmatively to the interrogatory. The jury did not
break down all of the listed instances of what might constitute bad faith. The only
certainty we can derive from the response is that the jury found that Buckeye’s
7
conduct imported one of the following: (1) a dishonest purpose, (2) moral
obliquity, (3) conscious wrongdoing, (4) breach of a known duty through some
ulterior motive, or (5) ill will partaking of the nature of fraud or embracing actual
intent to mislead or deceive another. While intent may be assumed from any of the
five instances of bad faith, only the fifth instance contains an element of intent to
injure. For example, this court has stated that conscious wrongdoing “requires the
party to possess knowledge of the harm that might be caused by his behavior.”
Preston v. Murty (1987), 32 Ohio St.3d 334, 335, 512 N.E.2d 1174, 1176.
Knowledge of the harm that might befall another is entirely different from that
harm being the motivating factor for one’s behavior. We cannot assume from the
jury’s response that it found an intent by Buckeye to injure.
Interrogatory No. 3 is also offered by New England as proof of Buckeye’s
direct intent. That interrogatory reads as follows:
“Do you find, by a preponderance of the evidence that the Buckeye Union
Insurance Company’s conduct in failing to settle the Leber’s [sic] claims was
motivated by actual malice.”
The jury responded “Yes.” Again, we must look to the jury instructions and
to case law to determine the significance of that response. The jury was instructed
as follows:
“Malice in the law is the intentional or unlawful design to injure another
without just cause or proof occasion [sic]. The term malice not only includes an
intentional act, an intent to cause harm to another party, but also encompasses
conduct evidenced by callous and conscious disregard of the rights of another.
Actual malice, which is the basis upon which punitive damages may be awarded,
may be inferred from intentional acts which cause injury or damage to another.
“Punitive damages may be awarded in a case involving bad faith claims
against insurance companies upon proof of malice, fraud or insult by the insurance
8
company. Malice may also take the form of the defendant’s expressed ill will,
hatred or spirit of revenge or from willful or wanton behavior inferred from the
conduct and the surrounding circumstances. * * *” (Emphasis added.)
A key statement in the jury instruction is that “[t]he term malice not only
includes an intentional act, an intent to cause harm to another party, but also
encompasses conduct evidenced by callous and conscious disregard of the rights of
another.” (Emphasis added.) That is an accurate statement of the law in Ohio.
The syllabus in Preston holds that malice can be found where there is either
conduct “characterized by hatred, ill will or a spirit of revenge, or * * * a
conscious disregard for the rights and safety of other persons that has a great
probability of causing substantial harm.”
The jury instruction sets forth several bases for a finding of actual malice:
(1) callous and conscious disregard for the rights of others, (2) expressed ill will,
hatred, or revenge, or (3) willful or wanton behavior. In regard to wanton conduct,
this court has held that “[i]t is not necessary that an injury be intended or that there
be any ill will on the part of the actor toward the person injured as a result of such
conduct.” Tighe v. Diamond (1948), 149 Ohio St. 520, 526, 37 O.O. 243, 246, 80
N.E.2d 122, 126.
Moreover, the instruction stated that malice could be inferred from
intentional acts that result in injury. As we have noted above, intentional acts that
result in injury are not necessarily direct-intent torts, i.e., torts committed with an
intent to injure. Whether there was an intent to injure is the relevant inquiry, and it
is an inquiry left unresolved by a finding of malice in this case.
Clearly, the jury’s finding of actual malice was presented within the context
of whether Buckeye should be liable for punitive damages. “Actual malice is
necessary for an award of punitive damages, but actual malice is not limited to
cases where the defendant can be shown to have had an ‘evil mind.’ “ Cabe v.
9
Lunich (1994), 70 Ohio St.3d 598, 601, 640 N.E.2d 159, 162. We find that in
deciding that Buckeye acted with actual malice the jury did not necessarily find
that Buckeye acted with an “evil mind,” i.e., with an intent to injure.
Since the jury did not specifically find that Buckeye acted with an intent to
injure, Buckeye’s bad-faith failure to settle the insurance claim was itself not
necessarily an uninsurable act. New England’s attempt to make bad faith and
malice equal intent to injure is misplaced and also affects our resolution of the
second question posed by the federal court.
Question 2
“Does such a finding of bad faith with actual malice collaterally estop
Buckeye from litigating this case?”
We find that the jury’s finding of bad faith with actual malice does not
collaterally estop Buckeye from litigating this case. Our reasoning is similar to
that in our response to the above question. New England is trying to expand the
meaning of bad faith and actual malice to necessarily include the intent to injure.
Due process requires a party asserting collateral estoppel to prove that the
identical issue was (1) actually litigated, (2) directly determined, and (3) essential
to the judgment handed down in the prior action. Goodson v. McDonough Power
Equip., Inc. (1983), 2 Ohio St.3d 193, 201, 2 OBR 732, 739, 443 N.E.2d 978, 985.
The issue to be litigated in this case is whether Buckeye acted with the direct
intent to injure. The issue in this case is not whether Buckeye acted in bad faith
and with actual malice such that it is liable for punitive damages. Thus, the issues
litigated in the two cases are not identical. Certainly then, we cannot conclude that
the issue of Buckeye’s intent was directly determined.
Also, the jury’s finding of actual malice was not essential to the prior
judgment. The jury’s finding of bad faith was not dependent on a finding of
malice. Malice was relevant only toward the issue of punitive damages, which the
10
jury did not award. The jury’s interrogatory response thus became irrelevant in
Leber II. It was not a part of the judgment—the judgment against Buckeye would
have been the same whether the question had been asked or not.
Thus, we conclude that the jury’s finding of bad faith with actual malice
does not estop Buckeye from litigating this case.
Question 3
“Under Ohio law does an exclusion in an insurance policy barring coverage
for personal dishonesty, fraudulent breach of trust, intention to deceive, or intent to
defraud embrace an insurer’s bad faith with actual malice caused by its failure to
settle a tort case?”
We decline to answer the third certified question. It is a question properly
resolved at the trial level.
Judgment accordingly.
MOYER, C.J., concurs.
COOK and LUNDBERG STRATTON, JJ., concur in judgment only.
DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur in part and dissent in
part.
__________________
COOK, J., concurring in judgment only. I concur with the majority’s
outcome as to each of the three issues certified by the Sixth Circuit Court of
Appeals. I write separately, however, because I disagree with the majority’s
analysis of each of the issues.
I
Though the majority correctly resolves the first certified issue, I believe that
its analysis misconstrues Ohio law by overlooking the standard set forth in
Gearing v. Nationwide Ins. Co. (1996), 76 Ohio St.3d 34, 665 N.E.2d 1115.
A
11
The Sixth Circuit has asked us to determine under current Ohio law whether
an insured’s bad-faith refusal to settle is the type of intentional tort that is excluded
from insurance coverage under public policy. Rather than deciding this question
under Gearing, this court’s most recent pronouncement on the issue, the majority
returns to a standard set forth ten years ago in Harasyn v. Normandy Metals, Inc.
(1990), 49 Ohio St.3d 173, 551 N.E.2d 962. Such an approach incorrectly states
the law and summarily erases the strides taken in Gearing towards a more
reasonable and appropriate analysis of the insurability of intentional torts.
My differences with the majority’s analysis can best be understood by
examining three decisions reached by this court over the last decade. The first is
Harasyn, where the court announced a distinction between “direct-intent” torts
and “substantial-certainty” torts for purposes of insurance coverage. To arrive at
the distinction, the court first acknowledged the fundamental public policy
principle that intentional torts are excluded from insurance coverage. Intentional
torts, however, encompass “two different levels of intent.” Id. at 175, 551 N.E.2d
at 964. The first level, referred to as direct intent, “is where the actor does
something which brings about the exact result desired. In the second level, the
actor does something that he believes is substantially certain to cause a particular
result, even if the actor does not desire that result.” Id. Having clarified the two
levels of intent, the Harasyn court concluded that public policy excludes from
insurance coverage only direct-intent torts.
Consideration of the intentional-tort issue continued in Physicians Ins. Co.
of Ohio v. Swanson (1991), 58 Ohio St.3d 189, 569 N.E.2d 906. There, the
Swanson court concluded that an insured who fired at a group of people seventy
feet away causing severe injuries, but who testified that he did not mean to hurt
anyone, did not have the level of necessary intent to exclude his actions from
coverage. Thus, Swanson, for the most part, continued the Harasyn-type analysis,
12
requiring evidence of direct intent to injure before an act would be excluded from
coverage. In its conclusion, however, the Swanson court opened the door for its
upcoming decision in Gearing: “In this case the exclusion is inapplicable because
the trial court’s determination that Todd Baker’s injury was not intentionally
inflicted or substantially certain to occur is supported by competent, credible
evidence.” Id. at 193-194, 569 N.E.2d at 911. Unlike Harasyn, Swanson implied
that substantial-certainty torts are excluded from insurance coverage. Because
actual application of this substantial-certainty prong of the test was missing from
Swanson, however, we were left to assume that the facts in that case did not reach
the substantial-certainty level.
In our most recent case on this issue, Gearing v. Nationwide Ins. Co., supra,
we more fully developed the substantial-certainty suggestion contained in
Swanson. In Gearing, we expanded the intentional-tort exclusion beyond direct-
intent torts, outlining a two-part analysis. The first part, as in Harasyn, requires
subjective consideration of the tortfeasor’s direct intent. Where direct intent does
not exist, however, the analysis proceeds to the second step, which considers
objectively whether the tortfeasor’s intentional act was substantially certain to
cause injury. In such instances “determination of an insured’s subjective intent, or
lack of subjective intent, is not conclusive of the issue of coverage.” Id., 76 Ohio
St.3d at 39, 665 N.E.2d at 1119. Rather, where substantial certainty exists, intent
to harm will be inferred as a matter of law.
As the last case decided on this issue, Gearing represents current Ohio law.
But instead of following Gearing, the majority resurrects the Harasyn view that
direct-intent torts are excluded from coverage while substantial-certainty torts are
not. Apparently recognizing that this approach alone is insufficient, however, the
majority augments it with a nebulously defined category of acts. This category
covers acts that are “intentionally injurious by definition” and for which no direct
13
intent is needed. While the majority’s creation of this category is aimed at solving
the shortcomings of the direct-intent approach, it produces instead an inherently
ambiguous rule, as we are left to wonder precisely what this category contains.
Indeed, the majority provides us with only two hints: (1) the category is very
limited, and (2) it has been applied only to sexual molestation and murder.
The majority then assigns Gearing to this category of acts, relegating it to
nothing more than an anomaly limited in application to the sexual-molestation
scenario. While Gearing was decided in the sexual-molestation context, its
application is certainly not so limited. First, the Gearing court itself applied the
“substantial-certainty” analysis to a context other than sexual molestation, as it
discussed it in the context of the Swanson case. See id. at 39-40, 665 N.E.2d at
1119. Furthermore, one need only review the numerous post-Gearing appellate
decisions to appreciate the precedential effect that courts have afforded that case.
Ohio’s appellate courts have repeatedly and without hesitation followed Gearing
as an effective means of analyzing coverage issues regarding intentional torts.
In Snell v. Katafias (Mar. 19, 1999), Montgomery App. No. 17440,
unreported, 1999 WL 148229, for instance, the appellate court conducted a two-
part analysis under Gearing of whether intentional infliction of emotional distress
is excluded from insurance coverage. Determining first that the insured did not
intend the injury, the court next asked whether the “injury resulting from an
intentional infliction of emotional distress [was] objectively certain.” Id.
Concluding that it was and that the claim was not covered, the court reasoned: “At
some point where harm appears to have been objectively certain, we no longer ask
whether the insured subjectively intended the resulting harm.” Id.
Also relying on Gearing, the court in Nationwide Mut. Ins. Co. v. Finkley
(1996), 112 Ohio App.3d 712, 715, 679 N.E.2d 1189, 1191, concluded that “where
an insured willfully and purposefully attempts to elude the police in an automobile
14
chase through an urban area in reckless disregard of traffic control devices, his
actions are substantially certain to result in injury.” Inferring intent to injure on
that basis, the court reasoned that “[d]etermining that an individual could obtain
insurance coverage for damages caused by intentional criminal activity, by willful
flight from the police, flies in the face of * * * established public policy.” Id. at
716, 679 N.E.2d at 1191. Accordingly, the court held that the wrongful act was
excluded from insurance coverage.
The court in Allstate Ins. Co. v. Ray (Dec. 18, 1998), Mahoning App. No.
96CA20, unreported, 1998 WL 896366, also followed Gearing to conclude that a
point-blank shooting was substantially certain to cause injury and therefore
inferred intent to injure as a matter of law. Under the same reasoning, an insured’s
act of punching another individual in the face, although purportedly done without
intent to injure, was also substantially certain to injure and therefore excluded from
coverage. Aguiar v. Tallman (Mar. 15, 1999), Mahoning App. No. 97 C.A. 116,
unreported, 1999 WL 148367. Similarly, intent to injure was inferred under
Gearing to the act of chopping down a neighbor’s trees, since that act was
considered substantially certain to cause harm. Cogar v. Commercial Union Ins.
Co. (Feb. 9, 1999), Medina App. No. 2816-M, unreported, 1999 WL 74620.
Not only is Gearing the current state of the law in Ohio, but because it
embodies an objective analysis, it also constitutes the better-reasoned approach. In
fact, a significant number of jurisdictions across the country impose similar
objective tests, rejecting the inadequacies of the subjective analysis. See, e.g., Am.
Bankers Ins. Co. of Florida v. Gilberts (C.A.8, 1999), 181 F.3d 931, 932; CNA Ins.
Co. v. McGinnis (1984), 282 Ark. 90, 666 S.W.2d 689; Wright v. White Birch
Park, Inc. (1982), 118 Mich.App. 639, 325 N.W.2d 524. See, also, Annotation
(1984), 31 A.L.R.4th 957. A Missouri appeals court, for instance, explained the
superiority of the objective test in the following manner:
15
“Supplanting an objective standard with a subjective standard for
determining whether the act or conduct of an insured is ‘intentional’ or ‘expected
or intended’ for purposes of assessing coverage would emasculate apposite policy
provisions by making it impossible to preclude coverage for intentional acts or
conduct absent admissions by insureds of a specific intent to harm or injure.
Human nature augers against any viable expectation of such admissions.” Truck
Ins. Exchange v. Pickering (1982), 642 S.W.2d 113, 116.
The inadequacy of a subjective standard such as the majority’s becomes
particularly clear when viewed in a Swanson-type context. In Swanson, the
tortfeasor’s act of shooting towards a group of bystanders was not excluded from
coverage because he lacked intent to injure. While this result may be palatable
where the insured shot from a distance of seventy feet, had the insured fired from
only ten or even five feet away, causing the same injuries and also claiming the
same lack of intent, certainly a different result should follow due to the
foreseeability of the injury. But under the majority’s approach, that shooting
would not be excluded from coverage because the lack of direct intent to injure is
all that precludes coverage. Nor would the shooting likely fall into the majority’s
“intentionally injurious by definition” category, as it involves neither murder nor
sexual molestation.
As we set forth in Gearing, “[l]iability insurance does not exist to relieve
wrongdoers of liability for intentional, antisocial, criminal conduct.” 76 Ohio
St.3d at 38, 665 N.E.2d at 1118. Rather, insurance policies are purchased “ ‘as
protection against calamity.’ ” Transamerica Ins. Group v. Meere (1984), 143
Ariz. 351, 355, 694 P.2d 181, 185, quoting Noble v. Natl. Am. Life Ins. Co. (1981),
128 Ariz. 188, 189, 624 P.2d 866, 867. Thus, “[t]he intentional exclusion is
necessary to the insurer to enable it to set rates and supply coverage only if losses
under policies are uncertain from the standpoint of any single policyholder, and if a
16
single insured is allowed through intentional or reckless acts to consciously control
risks covered by policy, the central concept of insurance is violated.” 7A
Appleman, Insurance Law and Practice (Rev.1979) 21, Section 4492.01. By
permitting coverage of intentional acts that are substantially certain to occur, the
majority places control of such risks squarely into the tortfeasor’s hands.
In sum, then, this court ought not to depart from Gearing, as the departure
does nothing to clarify the analysis of this issue. Rather, it imposes an inadequate
subjective test, coupled with an undefined category of inferred intent acts. More
importantly, the majority’s standard violates public policy by allowing coverage
for wrongful acts that are substantially certain to cause injury.
B
Though I disagree with the standard used by the majority to decide the first
certified question, I do concur with the resolution it reaches. The majority
correctly concludes that direct intent does not necessarily exist where a jury’s
verdict of bad-faith refusal to settle with actual malice is based upon the
interrogatories and instructions involved here. While a jury’s finding of actual
malice may signal the existence of direct intent in various instances, when a jury’s
instructions imply that actual malice may be found on grounds other than intent,
the jury’s verdict does not necessarily include a finding of direct intent.
Under Gearing, however, the analysis should not end there. Rather, we
must ask whether as a matter of law we are to infer intent to injure from such a
verdict. Both the bad-faith verdict and the actual-malice findings returned against
Buckeye in Leber II concern Buckeye’s subjective intent. Such intent, however, is
irrelevant to the Gearing substantial-certainty determination. What is relevant is
whether Buckeye’s refusal to settle was substantially certain to injure the Lebers.
Buckeye claimed that it had no duty to the Lebers because they were not insureds
under the contract. Although reversed by this court, the appellate court agreed
17
with Buckeye in Leber II and concluded that the Lebers were not covered under
the policy and therefore had no claim against Buckeye. Because contracts are
inherently subject to differing interpretations, I believe that a verdict of bad-faith
refusal to settle with actual malice does not rise to the level of substantial certainty
to injure under these circumstances.
I would conclude, therefore, that a jury’s verdict of bad-faith refusal to settle
with actual malice does not evidence the type of intentional tort that is excluded
from insurance coverage where the jury instructions and interrogatories do not
clarify the requirement of intent to injure (Harasyn). Furthermore, such a verdict
does not satisfy the objective portion of the intentional-tort inquiry, as the act of
bad-faith refusal to settle is not necessarily, as a matter of law, substantially certain
to injure (Gearing).
II
I agree with the majority’s conclusion that Buckeye is not collaterally
estopped from litigating the issue of direct intent. Based upon the above rationale,
however, I would also include within that analysis the issue of substantial certainty
to injure. I do, however, disagree with the majority’s discussion of the third prong
of the Goodson collateral-estoppel test.
In order to assert collateral estoppel, a party must prove that the identical
issue was (1) actually litigated, (2) directly determined, and (3) essential to the
judgment handed down in the prior action. Goodson v. McDonough Power Equip.,
Inc. (1983), 2 Ohio St.3d 193, 201, 2 OBR 732, 739, 443 N.E.2d 978, 985. The
majority begins its analysis with the second prong of this test, and correctly
decides that the issues here were not “directly determined.” In so concluding, the
majority emphasizes that the issues to be litigated here are not whether Buckeye
acted in bad faith with actual malice. Rather, the relevant issue is whether
Buckeye acted with direct intent (and I would include substantial certainty) to
18
injure. Because these exact issues were not “directly determined,” the Goodson
standard is not met and Buckeye is not collaterally estopped from litigating these
issues.
Because one of the prongs has not been met, the analysis should end here.
The majority, however, continues its consideration of the Goodson test, concluding
that the third prong of Goodson was also not satisfied. In analyzing the third
prong, however, the majority appears to confuse the relevant issues. While the
majority correctly emphasizes in its analysis of the second prong that the issues to
be litigated are not bad faith with actual malice but instead direct intent, when
analyzing the third prong it focuses upon actual malice as the issue to be litigated.
Specifically, the majority concludes that the actual-malice finding was not
essential to the judgment handed down in the prior action. Actual malice should
play no part, however, in the analysis. Although this third prong does not need to
be addressed, if it is, the question to be asked is whether the issues of direct intent
and substantial certainty were essential to the judgment handed down in the prior
action.
Nonetheless, the majority reaches the correct resolution. Based upon that
conclusion, I would hold that the issues of direct intent and substantial certainty to
injure have not been directly determined in the prior action and therefore Buckeye
is not collaterally estopped from litigating its case.
III
While I agree with the majority’s response to the third certified question, I
believe that elaboration on the rationale supporting this determination would be of
use. As the majority concluded, the issue of whether New England’s policy
excludes Buckeye’s act of refusing to settle is an issue more appropriate for the
trial court. This conclusion is proper because the verdict returned here is not, as a
matter of law, the equivalent of the exclusion contained in the policy.
19
The relevant exclusion in the New England policy provides:
“(a) This Insurance shall not cover any Insured whose personal dishonesty,
fraudulent breach of trust, or intention to deceive or defraud has been finally
adjudicated or may be established.”
Neither the jury’s verdict nor the accompanying interrogatories and
instructions contained the language used in the exclusion. New England contends
that the items contained in the exclusion and the jury’s findings are essentially
equivalent and therefore the claim should be excluded. Exclusion (a), however, is
ambiguous as to whether it excludes a claim for bad-faith refusal to settle with
actual malice. The language of the exclusion does not mirror the elements of bad
faith or actual malice, nor does it at any point mention them by name.
It is axiomatic that where language in an insurance policy is susceptible of
more than one meaning, the court will construe it liberally in favor of the insured
and strictly as against the insurer. Buckeye Union Ins. Co. v. Price (1974), 39 Ohio
St.2d 95, 99, 68 O.O.2d 56, 58, 313 N.E.2d 844, 846. Accordingly, if it was New
England’s intent to exclude bad-faith refusal to settle either with or without malice
from its professional liability policy, it certainly could have used specific language
to create such an exclusion.1 Construing the ambiguous exclusion language against
New England, then, I believe that the exclusion neither corresponds to the elements
of bad-faith refusal to settle or to actual malice, nor does it specifically set forth
such exclusions. Provision (a), therefore, does not, as a matter of law, exclude
from coverage a claim based upon a judgment of bad-faith refusal to settle with
actual malice.
LUNDBERG STRATTON, J., concurs in the foregoing opinion.
FOOTNOTE:
1. In fact, Buckeye’s merit brief suggests that New England marketed the
policy as specifically covering bad-faith claims. Furthermore, the policy explicitly
20
covers punitive damages.
__________________
Douglas, J., concurring in part and dissenting in part. I concur only in
the judgment of the majority with regard to the responses to questions one and two.
I respectfully dissent from the judgment of the majority with regard to question
three. I would answer question three and would answer it in the negative.
RESNICK and F.E. SWEENEY, JJ., concur in the foregoing opinion.
21