Harasyn v. Normandy Metals, Inc.

Holmes, J.,

dissenting from the

syllabus and Part I of opinion, and concurring in Part II and the judgment.

I must dissent from both the syllabus law of this majority opinion, and some of the commentary within the opinion. However, in light of the analysis that follows, I concur in the conclusion that there was lawful insurance coverage here, and concur in the judgment.

The majority begins its discussion of the major issue presented by setting forth, in part, the controlling definition of an “intentional tort” as contained within Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St. 3d 100, 522 N.E. 2d 489. This quoted portion of the Van Fossen definition merely restated the 1 Restatement of the Law 2d, Torts (1965) 15, Section 8A, definition, i.e., that “* * * the actor desires to cause consequences of his act or * * * He believes that the consequences are substantially certain to result from it.” The majority opinion did not further elucidate that in Van Fossen we had additionally defined and limited such court-pronounced intentional torts within the workplace as follows:

“We now interpret Jones [v. VIP Development Co. (1984), 15 Ohio St. 3d 90, 15 OBR 246, 472 N.E. 2d 1046] to require knowledge on the part of the employer as a vital element of the requisite intent. Thus, under this interpretation of Jones, within the purview of the Restatement of Torts 2d, and the commentary of Prosser & Keeton *179on Torts applicable to this area of law, we hold that in order for ‘intent’ to be found for the purpose of proving the existence of an intentional tort committed by an employer against his employee, the following must be demonstrated: (1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within his business operation; (2) knowledge by the employer that if employees are required by virtue of their employment to be subjected to such dangerous process, procedure, instrumentality or condition, then harm to them would be a substantial certainty, and not just a high risk; (3) that the employer, under such circumstances, and with such knowledge, did act to so require the employee to continue performing his employment tasks.

“We recognize that pursuant to this interpretation of ‘intent’ as set forth above, proof of the actual or subjective intent of the actor to accomplish the consequences is not required. Our discussion herein is directed toward significantly limiting the areas within which ‘intent’ on the part of the actor may be circumstantially inferred. [Emphasis sic.]

“To establish an intentional tort of an employer, proof beyond that required to prove negligence and beyond that to prove recklessness must be established. Where the employer acts despite his knowledge of some risk, his conduct may be negligence. Where the risk is great and the probability increases that particular consequences may follow, then the employer’s conduct may be characterized as recklessness. As the probability that the consequences will follow further increases, and the employer knows that injuries to employees are certain or substantially certain to result from the process, procedure or condition and he still proceeds, he is treated by the law as if he had in fact desired to produce the result. However, the mere knowledge and appreciation of a risk — something short of substantial certainty — is not intent.” Van Fossen, supra, at 116-117, 522 N.E. 2d at 504.

Under such definition of an “intentional tort” occurring within the workplace, the employer’s knowledge of the offending conditions within which the employee is mandated to continue his work functions must be shown by the evidence. In such a situation, may it be said that the employer is only chargeable with a passive position of oversight, and that public policy would countenance such continuance of this type of activity, and his insuring against such a risk? I prefer to think not.

I believe that the majority holding implies that a Van Fossen type of “intentional tort” would not violate the public policy prohibition of private insurance coverage for this type of employer activity involving his employee. The majority states that to legally authorize insurance coverage to the employer for this type of tort is acceptable from a public policy standpoint because “the policy of assuring victim compensation should prevail.” The majority very questionably differentiates the coverage for this type of claim from the “direct intent” tort by stating: “[i]n the case of a ‘direct intent’ tort, the presence of insurance would encourage those who deliberately harm another. In torts where intent is inferred from ‘substantial certainty’ of injury, the presence of insurance has less effect on the tortfeasor’s actions because it was not the tortfeasor’s purpose to cause the harm for which liability is imposed.”

With this statement of public policy I cannot agree. In allowing an Ohio employer to continue to commit *180an “intentional tort,” as defined within Van Fossen, would not only be against public policy, but would be contrary to every legal understanding of a safe place within which Ohio employees may work and carry out their employment activities.

Therefore, I am unable to accept the general pronouncement of syllabus law herein that “[p]ublic policy does not prohibit an employer from securing insurance against compensatory damages sought by an employee in tort where the employer’s tortious act was one performed with the knowledge that injury was substantially certain to occur.”

Further, such general pronouncement of public policy in this regard was not bolstered by the legislative enactment of R.C. 4121.80 in 1986. It is true that division (E) of such statute does establish a fund to be administered by the Industrial Commission from which it may pay amounts determined by it to be warranted after a claim of intentional tort is found in favor of a claimant by a common pleas court. Such legislative enactment provides for funding of such court determinations on a statewide basis by the participating employer under workers’ compensation, or the self-insured employer, and payments into such fund are based upon analysis of the employer’s risk-liability history. Such fund is technically not an insurance fund and most definitely is not insurance provided by a private carrier, as we deal with here. In any event, to rely upon this legislative enactment to portray what is or is not within lawful public policy for purposes of this discussion offers little or no support for the majority’s determination. This is particularly so in light of the fact that pursuant to R.C. 4121.80, in division (D), the employer must act with actual intent to occasion the injury to the employee. Such intentional tort under this definition would require conduct that is even more blameworthy and more purposeful than the conduct that Van Fossen has held could give rise to a common-law “intentional tort” claim. However, the lawfulness or the wisdom of R.C. 4121.80 is not before us, and I make no comment directed thereto; I only repeat that such enactment lends no valid support to the public policy question discussed herein.

Therefore, I cannot accept the majority’s general endorsement of this public policy allowance for private insurance company coverage of an employer’s tortious act, where the act “was one performed with the knowledge that injury was substantially certain to occur” within the meaning of “substantially certain to occur” as is-set forth within Van Fossen. However,' I am able to concur in the judgment of' this case based upon the following reasoning.

In Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St. 2d 608, 23 O.O. 3d 504, 433 N.E. 2d 572, as further confused by Jones v. VIP Development Co. (1984), 15 Ohio St. 3d 90, 15 OBR 246, 472 N.E. 2d 1046, and its progeny, this court espoused the so-called “intentional tort” theory of acts committed by the employer against the employee within the workplace. Jones only defined such a tort by adoption of the definition found within 1 Restatement of the Law 2d, Torts (1965). One such definition was of course that involving “direct intent”; the other was the inferred intent arising out of the “substantially certain to occur” language of the Restatement. The outgrowth of cases within our courts was a confusing status of the law, as noted in Van Fossen. Courts were construing the intentional tort upon basic *181negligence theories where the acts of the employer were acts of omission, or failure to warn, rather than upon the higher standard as pronounced by this court within Van Fossen set forth above.

Acts of the employer affecting the employee that may be classified as negligent, careless, or reckless do not rise to the level in the law, nor does the law infer that the employer actually desired to produce the result. However, trial courts, pursuant to Blankenship and Jones, were quite extensively applying the lesser standards of an inference of intent to the cases before them prior to our pronouncement in Van Fossen. Such state of affairs presented defendant employers throughout Ohio with a multitude of monumental judgment problems, and left them hanging at the end of the limb in a bare state.

During the period between this court’s pronouncements in Blankenship and Van Fossen, many of these judgments were based upon lesser standards of negligence which would be within the legally acceptable area for possible private insurance coverage against such liability sounding in negligence. Insuring against one’s negligence has of course been acceptable for many years to cover the liabilities of employers for negligently injuring others, including those injuries received by employees that may have been occasioned outside the employment.

I conclude that for this limited period during which the law of intentional torts was being equated and interpreted in the sense and standard of negligent acts, public policy did not prohibit an employer from securing insurance against compensatory damages sought by an employee for the court-established intentional tort.

Here, during the period prior to our clarifying law in Van Fossen, there was specific coverage offered by Fireman’s Fund, accepted by Normandy Metals, and premiums paid therefor. The endorsement to the policy considered here was written and offered to Ohio industrial employers as “stop gap” coverage for these court-espoused “intentional torts” and specifically excludes assault and battery-type torts committed by the employer against the employee, and also specifically excepts injuries covered by workers’ compensation.

These policies were actively promoted to Normandy and other employers, and Fireman’s Fund having held out such coverage should not now be heard to deny liability upon such insurance policies sold during this period of time.

Concluding, I dissent from the syllabus law and Part I of the opinion, and I concur in Part II of the opinion and in the judgment herein.