dissenting.
{¶ 36} Thirty-three years ago, the Ohio Supreme Court, in Blankenship v. Cincinnati Milacron Chem., Inc., 69 Ohio St.2d 608, 433 N.E.2d 572 (1982), declared that the very proposition that an employer could be immune from civil liability arising from intentionally injuring its workers was an outrage. Today is a good day to review the sordid history of so-called intentional torts in the workplaces of Ohio. The case before us demonstrates the money-driven efforts to return once again to the pre-Blankenship days, when profits were never placed in peril by the egregious acts of management.
{¶ 37} Let’s take a look at why Blankenship was so important. The facts speak for themselves. In Blankenship, the complaint alleged that workers had been intentionally exposed to toxic chemicals without warning and as a result had suffered chemical intoxication. The trial court had dismissed the claim as insufficient under Civ.R. 12(B)(6) and held that workers’ compensation was the exclusive remedy for the poisoned workers, and the court of appeals had affirmed.
{¶ 38} The Supreme Court of Ohio reversed. The court concluded, “Since an employer’s intentional conduct does not arise out of employment, R.C. 4123.74 does not bestow upon employers immunity from civil liability for their intentional torts and an employee may resort to a civil suit for damages.” Blankenship at 613. The court held, “An employee is not precluded by Section 35, Article II of *209the Ohio Constitution, or by R.C. 4123.74 and 4123.741 from enforcing his common law remedies against his employer for an intentional tort.” Id. at syllabus. The court determined that it was unreasonable to equate the negligent conduct covered by the Ohio Workers’ Compensation Act with intentional conduct in terms of the degree of risk facing Ohioans while at work. Id. at 613.
{¶ 39} In response, the General Assembly enacted former R.C. 4121.80, Am.Sub.S.B. No. 307, 141 Ohio Laws, Part I, 733-737. R.C. 4121.80 was invalidated by this court in Brady v. Safety-Kleen Carp., 61 Ohio St.3d 624, 576 N.E.2d 722 (1991). Eight years later, this court affirmed the holding in Brady and clearly stated that “any statute created to provide employers with immunity from liability for their intentional tortious conduct cannot withstand constitutional scrutiny.” Johnson v. BP Chems., Inc., 85 Ohio St.3d 298, 304, 707 N.E.2d 1107 (1999). In 1995, the General Assembly enacted yet another statute intended to eliminate liability for employer intentional torts. Based on our holding in Brady and Blankenship, former R.C. 2745.01 was invalidated by this court in its entirety because it was unconstitutional and because the excessive statutory requirements and heightened burden of proof in the statute “created a cause of action that is simply illusory.” Johnson at 306.
{¶ 40} The current version of R.C. 2745.01 was challenged and upheld in Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066. As Justice Pfeifer lamented in his dissenting opinion, “the General Assembly has found a court that agrees with it: workers have no constitutionally protected right to seek redress for injuries suffered from their employers’ intentional torts.” Id. at 278 (Pfeifer, J., dissenting). - The gradual extinction of the rights of workers to recover for injuries they suffer as a result of intentional conduct by their employers serves no one. Indeed, “this abdication of employer responsibility * * * is an affront to the dignity of every single working man and working woman in Ohio.” Blankenship, 69 Ohio St.2d at 617, 433 N.E.2d 572 (Celebrezze, C.J., concurring).
{¶ 41} The lead opinion states that this case is merely about the insurability of employer intentional torts. The lead opinion states and reiterates that Hoyle’s intentional-tort claim against his employer has yet to be decided and remains viable under the statute. Lead opinion, ¶ 14, 22. I wish I could agree. Hoyle deserves his day in court. Unfortunately, I believe that Justice Lanzinger is correct when she writes that as a result of this decision, “[t]here is now nothing less than deliberate intent” and that the practical effect of the lead opinion is that injured employees will be limited to workers’ compensation. Id. at ¶ 35 (Lanzinger, J., concurring in syllabus and judgment only).
*210{¶ 42} Now we have insurance agents selling worthless pieces of paper that will never pay a claim to assuage the fears of managers as they, in the name of increased production and reduced labor costs, remove saw guards, disable air-filtration systems, and store time-consuming safety equipment in their offices. After all, they have been assured by their insurance agent that if they get caught intentionally injuring their employees, it will be an insured event.
{¶ 43} In this case, DTJ Enterprises, Inc., and Cavanaugh Building Corporation stand in the spotlight and very well may be found culpable for the missing safety device. In that event, they could be legally liable to Hoyle under R.C. 2745.01(A) if he can show that the employer acted with intent to injure. One of the ways that Hoyle can show intent, should this matter ever see the inside of a courtroom, is by using the presumption under R.C. 2745.01(C). Most important to our inquiry here is that the insurance policy in question explicitly excludes coverage only for deliberate intentional torts. And while the policy defines an intentional act as an act substantially certain to cause bodily injury, it is significant that the policy does not limit the definition of intent to mean deliberate intent. Thus DTJ and Cavanaugh could be legally liable to Hoyle for intentional conduct under the statute and within the scope of the policy. But somehow the lead opinion reaches the conclusion that there is no set of facts under which DTJ and Cavanaugh could be legally liable to Hoyle that falls within the policy’s coverage. I disagree. A single act could in fact be found to be substantially certain to cause an injury but not be driven by a deliberate intent to injure.
{¶ 44} The lead opinion rationalizes its erroneous conclusion by adopting the assertion of Cincinnati Insurance Company (“CIC”) that it is not required to indemnify DTJ and Cavanaugh, because any coverage under the Employers Liability Coverage Form — Ohio violates Ohio’s long-standing public policy prohibiting insurance against liability for an insured’s own intentional torts. CIC’s brazen assertion here is disingenuous at best, considering that it drafted the policy and collected premiums from DTJ. Can this court truly countenance an insurance company’s assertion that it should be permitted to collect a premium for an event that is never going to happen?
{¶ 45} More important, as the lead opinion points out, this court has determined that not all intentional torts are uninsurable. Lead opinion, ¶ 28, citing Buckeye Union Ins. Co. v. New England Ins. Co., 87 Ohio St.3d 280, 283, 720 N.E.2d 495 (1999) (minority opinion). “[Ijnsurance coverage should be prohibited only for direct-intent torts.” Buckeye Union at 283. As Justice Pfeifer explained in his opinion in Buckeye Union, “in Harasyn, this court discussed the different levels of intent involved with intentional acts. ‘The 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 *211substantially certain to cause a particular result, even if the actor does not desire that result.’ ” Id. at 283, quoting Harasyn v. Normandy Metals, Inc., 49 Ohio St.3d 173, 175, 551 N.E.2d 962 (1990). Nobody in this case seems to be arguing that DTJ or Cavanaugh directly intended Hoyle to fall 14 feet from the ladder-jack scaffold onto a concrete pad. Rather, the genuine issue of material fact here is whether or not the job superintendent kept the bolts necessary to secure the ladder jacks to the ladders in his office because they took too much time to use. That is the real question before this court. This court has everything it needs to hold in favor of the policy holder in this case. It has a statute, a policy bought and paid for, and relevant caselaw of the Supreme Court of Ohio. Regardless of these binding guideposts, the majority forges ahead in the wrong direction. “What is good for workers is good for Ohio.” Blankenship, 69 Ohio St.2d at 620, 433 N.E.2d 572 (Brown, J, concurring). This statement is no less true today than it was in 1982. The courthouse doors should not be closed to a person who suffered an intentional injury merely because he was at work. Indeed, the • General Assembly has clearly made that proposition the law of Ohio. You intentionally hurt someone, you must pay — even if it happens in the workplace. And until that determination has been made by a competent court, the duty to indemnify requires a defense. There is no other logical explanation for accepting the premiums on this particular insurance policy.
Plevin & Gallucci and David R. Grant; and Paul W. Flowers Co, L.P.A, and Paul W. Flowers, for appellee Duane Allen Hoyle. Koehler Neal, L.L.C, and Timothy J. Fitzgerald; and Michael M. Neltner and Stephen J. Chuparkoff, for appellant, Cincinnati Insurance Company. Jackson Kelly, P.L.L.C, and Mark W. Bernlohr; Davis & Young, L.P.A, and David G. Utley; and Morrow & Meyer, L.L.L, and Todd T. Morrow, for appellees DTJ Enterprises, Inc, and Cavanaugh Building Corporation. Freund, Freeze & Arnold and T. Andrew Vollman, urging reversal for amicus curiae Ohio Association of Civil Trial Attorneys.{¶ 46} I would affirm the Ninth District’s holding in this case. CIC got the benefit of its deal with DTJ, and now, under the express terms of its policy, it should absolutely be required, based on the language it authored itself, to indemnify DTJ and Cavanaugh for any intentional tort except for those acts committed with deliberate intent.
{¶ 47} I dissent.
Pfeifer, J, concurs in the foregoing opinion. Traska Kimbrell, Ltd., and Peter D. Traska, urging affirmance for amicus curiae Ohio Association for Justice.