concurring. I concur in the well-reasoned majority opinion authored by Justice Sweeney. Today’s decision is an affirmation of the longstanding rule that where a complaint in a civil action against an insured alleges both a negligent injury within the scope of coverage of the insurer’s policy and that the injury was caused intentionally, the insurer is required to defend regardless of the outcome of the litigation or the liability of the insurer to the insured under the terms of the policy.
On remand for trial, the parties in this appeal should, in my opinion, also consider the following observation contained in Chief Justice O’Neill’s concurrence in State Farm Fire & Cas. Co. v. Pildner (1974), 40 Ohio St. 2d 101, 106 [69 O.O.2d 509]:
“* * * [I]n the present case the insurer alleges that the insured intentionally caused the injuries which are the basis of the damage suit, and that, therefore, his actions are outside the scope of the insurance policy. In such case, although the company has a duty to defend the insured, there is an undeniable conflict between the insurance company and the insured. The insured, if he cannot totally escape liability, will desire to show that his liability is based on negligent conduct which is covered by his insurance policy. The insurance company will, on the other hand, desire to prove that the insured’s actions were intentional and hence not within the scope of the policy. Under these facts, I believe that D.R. 5-105, which is mandatory, dictates that the insurance company not be allowed to select counsel to defend the insured. The adversity between the insurance company and the insured, coupled with the pressure which the insurance company could exert on counsel selected by it, simply presents too great a possibility that that counsel’s loyalty to the insured will be diluted.”