I agree with the majority's determination with regard to the inapplicability of R.C. 3927.182 for purposes of insurance coverage. However, I respectfully dissent from the majority's public policy analysis permitting the indemnification of punitive damages awarded against Corinthian (the insured tortfeasor herein) in the Sprosty case pursuant to former R.C. 3721.17(I).
The majority properly recognizes that Ohio law has long disfavored insurance against punitive damages resulting from the insured's own torts. State Farm Mut. Ins. Co. v. Blevins (1990), 49 Ohio St.3d 165,168. Also, the majority properly iterates the assumptions which support the general preclusion of insurance for punitive damages based on public policy reasons, namely, (1) that a tortfeasor should not be permitted to escape punishment for his/its tortious acts and (2) to deter others from committing similar acts. Id.; Casey v. Calhoun (Cuyahoga, 1987),40 Ohio App.3d 83, 84. Having so spoken, the majority, at 11-12, then makes the unsupported statement that:
These assumptions are not valid, however, where punitive damages are awarded pursuant to statute, without any finding of malice, ill will or other culpability. Punitive damages which are not based on a finding of actual malice or any other state of mind are not punishment in any traditional sense.
Likewise, there is little deterrent effect from punitive damages awarded without a finding of ill will or malice. Accordingly, indemnification for these special statutory punitive damages does not violate any public policy.
Not punishment? Little deterrent effect? If a punitive damage award, whether award based on a finding of malice, etc., or otherwise by statute, is not punishment to the tortfeasor or a deterrent to others from committing similar acts, I ask, What is it, then? This belief by the majority would, I dare say, come as a complete shock to, and not be shared by, any tortfeasor who has to sign a *Page 401 check or liquidate assets to satisfy such a punitive damages judgment, in addition to satisfying the compensatory damages judgment. Punitive damages are, and have always been, punishment apart from the compensatory damages.
I also take issue with the majority's non-reliance on State Farm Mut. Ins. Co. v. Blevins, supra, with regard to the public policy argument. The majority bases its non-reliance on the fact that Blevins involved liability under a casualty policy of uninsured motorist coverage, whereas the insurance in issue herein involved the context of a general liability policy. See majority opinion, at 12. This facile distinction, while factually correct in its stated form, withers upon closer review of Blevins. In Blevins, the Supreme Court noted the assumptions undergirding the public policy disfavoring the insuring of punitive damages and also noted that uninsured motorist coverage insures against the tortious acts and financial irresponsibility of persons other than the insured. State Farm Mut. Ins. Co. v. Blevins, supra, 49 Ohio St.3d at 168. The Court concluded that the Blevins' policy of uninsured motorist coverage did provide coverage for punitive damages and did not run afoul of public policy because the punitive damages, which would be paid to Blevins (the insured victim) under that policy, did not insulate the tortfeasor (who was not Blevins) from the consequences of the tortfeasor's wrongful acts; that the policy was casualty rather than general liability was not the deciding factor, the deciding factor was whether the tortfeasor was evading the effect of the punitive damages punishment. The exact opposite result occurs with Corinthian (the insured negligent tortfeasor) if the majority's view is applied herein because to invoke coverage for punitive damages, as the majority is wont to do, would insulate Corinthian from its wrongful tortious acts. This flies in the face of the established public policy dealing with disfavoring insurance coverage for punitive damages awarded against a defendant-insured.
Furthermore, the fact that the policy herein is one for liability, not casualty, makes no difference with regard to Ohio's tradition of disfavoring insurance coverage for punitive damage awards. See Ruffin v. Sawchyn (Cuyahoga, 1991), 75 Ohio App.3d 511, 517-518, citing Casey v. Calhoun, supra, 40 Ohio App.3d at 84-86 (in Ruffin, this appellate court determined that it was against public policy to invoke coverage under a general liability policy covering real property for punitive damages awarded against a co-defendant/insured/tortfeasor).
Accordingly, I would reverse and enter judgment in favor of defendants-appellants based on public policy considerations. *Page 402