Altvater v. Ohio Casualty Insurance Co.9/9/2003
. Viola Altvater, administratrix of the estate of Robert K. Altvater, deceased, plaintiff-appellant, appeals from a judgment of the Franklin County Court of Common Pleas granting a motion for summary judgment filed by Ohio Casualty Insurance Company ("Ohio Casualty"), defendant-appellee.
.Robert K. Altvater, deceased, was employed by Claycraft Company ("Claycraft") from 1948 to 1980 as a plug mill operator in Claycraft's brick factory. In such employment, he was exposed to silica dust. Robert died on March 17, 1983, as a result of chronic obstructive pulmonary disease. An autopsy slide of his lungs showed 15 percent silica dust. Claycraft was insured by Ohio Casualty from January 1, 1977 to January 1, 1986, under various policies. Special multi-peril policies were issued to provide bodily injury and property damage general liability coverage as follows: (1) Policy No. AMP 53 94 90 (January 1, 1977 to January 1, 1980); (2) Policy No. AMP 56 30 46 (January 1, 1980 to January 1, 1983); and (3) Policy No. XPO 17 63 45 (January 1, 1983 to January 1, 1986).
.Commercial umbrella liability policies were also issued by Ohio Casualty to Claycraft, as follows: (1) Policy No. LXC 50 73 14 (January 1, 1977 to January 1, 1978); (2) Policy No. LXC 50 94 96 (January 1, 1978 to January 1, 1979); (3) Policy No. LXC 51 25 23 (January 1, 1979 to January 1, 1980); (4) Policy No. LXC 51 61 25 (January 1, 1980 to January 1, 1981); (5) Policy No. LXC 51 97 58 (January 1, 1981 to January 1, 1982); (6) Policy No. LXO 52 24 28 (January 1, 1982 to January 1, 1983); and (7) Policy No. XEO 17 63 45 (January 1, 1983 to January 1, 1986).
.On August 10, 1984, Viola, Robert's wife, filed a wrongful death and survivorship action against Claycraft, alleging that Robert died as a proximate result of an employer intentional tort, i.e., Claycraft's conduct of exposing Robert to silica dust. On October 11, 1984, Claycraft filed an answer and third-party complaint against Ohio Casualty, seeking a declaration that Ohio Casualty had a duty to defend/indemnify Claycraft on the intentional tort claim based upon the various insurance policies. On December 30, 1987, summary judgment was granted in favor of Ohio Casualty, indicating that Ohio Casualty had no duty to defend Claycraft. Claycraft then filed a motion for summary judgment on the basis of res judicata/collateral estoppel based upon an administrative workers' compensation ruling. The trial court granted summary judgment. We reversed the trial court's judgment in Altvater v. Claycraft Co. (1991), 71 Ohio App.3d 264. The Ohio Supreme Court denied a motion to certify in Altvater v. Claycraft Co. (1991), 62 Ohio St.3d 1408.
.The employer intentional tort claim proceeded to trial. On September 21, 1992, a jury returned a verdict in favor of Viola, awarding $1,346,000 in damages ($840,000 in compensatory damages, $6,000 in funeral expenses, and $500,000 in punitive damages). The jury found that Claycraft had knowledge of the existence of a dangerous condition within its business operation, had knowledge that, if Robert was subjected to such dangerous conditions, harm to him would be a substantial certainty, and with this knowledge acted to require Robert to continue a dangerous task. However, the trial court granted Claycraft's motion for a new trial, finding an irreconcilable and inconsistent difference between the verdict and interrogatory answers. Viola appealed, and we reversed the trial court's judgment in Altvater v. Claycraft Co. (1994), 92 Ohio App.3d 759. The trial court then entered a judgment consistent with the trial court's verdict on July 6, 1994. Claycraft has not paid the judgment, and it has completed an asset-only sale of its prop
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