concurring in part and dissenting in part.
Although I concur in much of what is said in the majority opinion, I do not agree that the district court’s award of summary judgment to the GCL and E/U insurers must be reversed. The majority opinion holds that there is a question of fact whether S-W Industries acted with knowledge that injury to Viock “was substantially certain to occur.” I do not believe this conclusion is supported by Ohio law, or by the law of the ease.
In Ohio, an employer is immune from liability for workplace injuries, absent a finding that it committed an intentional tort. Blankenship v. Cincinnati Milacron Chem., Inc., 433 N.E.2d 572, 575-77 (1982). This intentional tort exemptipn to workers compensation exclusivity encompasses those acts “committed with intent to injure another, or committed with belief that such injury is substantially certain to occur.” Jones v. VIP Development Co., 15 Ohio St.3d 90, 472 N.E.2d 1046, 1046 (1984).
In Wedge Products, Inc. v. Hartford Equity Sales Co., 31 Ohio St.3d 65, 509 N.E.2d 74 (1987), the Ohio Supreme Court held that an employer’s intentional tort, as defined in Jones, could not be covered by GCL policy language identical to that here, because the policy excluded expected or intended injuries, and, by definition, work-related intentional tort injuries are expected or intended. The majority maintains, however, that Wedge does not control this case, apparently on the theory that in equating “expected or intended” injuries with the belief that injuries are “substantially certain to occur,” the Wedge court did not have in mind situations where the employer should have, but may not have known that injury was substantially certain to follow. And Viock’s jury, the majority correctly observes, found S-W liable for intentional tort upon an instruction that permitted the verdict if the jury found that the risks to' Viock merely “should have been known.” According to the majority, this is not the kind of intentional tort that is the equivalent of an “expected or intended” injury that the Wedge court held would preclude insurance coverage.
In my view, that is not a correct reading of Wedge. That court did not condition its ruling on a finding that the employer-insured had acted with knowledge that injury was substantially certain to occur, or with any other specific state of mind. There were no findings of fact in Wedge. Rather, the case was a declaratory judgment action brought by the insurer, who was arguing that it had no duty to defend a work-related intentional tort action because its policy excluded coverage for expected or intended injuries.' Thus, the court was expressing a general rule that work-related intentional torts are necessarily expected or intended, and therefore not covered by policies excluding expected or intended injuries.
The majority opinion also contends that the Wedge decision was really driven by public policy concerns, now obviated by subsequent court decisions. It is difficult to discern the basis for this conclusion. Only after concluding that there was no “possibility of coverage” did the court mention “public policy,” and then only in the categorical statement'that “public policy is contrary to insurance against intentional torts.” ' Id. 509 N.E.2d at 76.
The Ohio Court of Appeals expressly held that the Viock trial court’s “knew or should have known” instruction was sufficient to support an intentional tort verdict because it *984was synonymous with the “substantial certainty” language of Jones. Viock v. Stowe-Woodward Co., No. E-84-27, 1986 WL 3254, slip op. at 14 (Ohio App.1986). That being so, the intentional tort liability imposed on SW is precisely within the Jones definition of work-related intentional tort that Wedge holds “is not covered by an insurance policy which provides protection for bodily injuries ‘neither expected nor intended’ by the employer.” Wedge, 509 N.E.2d at 76. It is indisputable, I think, that under Ohio law injuries that are a “substantial certainty” are “expected or intended.” I would affirm the district court’s summary judgment for the GCL and E/U insurers. Otherwise, I concur in the majority opinion.