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Allstate Ins. Co. v. Cole8/12/1998
f assault in violation of R.C. 2903.13 ).
In this case, Jeffrey was convicted of involuntary manslaughter based on a violation of R.C. 2903.13(B). Recklessness is an element of R.C. 2903.13(B). Therefore, the applicability of the intentional-acts exclusion has been conclusively established by Jeffrey's conviction of a reckless act, regardless of the underlying facts. Hevitan, supra.
However, Jeffrey's conviction cannot be given conclusive effect against his parents, James and Edna.
Count III of Robinson's complaint is against James and Edna Cole, as the parents of Jeffrey, for negligently permitting Jeffrey to have access to the gun and for failing to supervise or instruct him in its use and safety. While collateral estoppel may apply to Jeffrey in this situation, it cannot be applied to James and Edna. Collateral estoppel requires some mutuality of parties to be applicable. See Phillips v. Rayburn (1996), 113 Ohio App.3d 374, 379-381, 680 N.E.2d 1279, 1282-1284. Neither James and Edna, nor Allstate Insurance, was a party to the underlying criminal action. Therefore, there is no mutuality of parties, and James and Edna Cole cannot be estopped from relitigating the issue of intent.
Concededly, a trier of fact may decide the case in favor of James and Edna upon the issues of negligence and/or proximate cause. However, that does not mean they should be denied a defense. Allstate can probably take its reservation of rights and may never pay any verdict, but it should provide the Coles with a defense. See Preferred Mut. Ins. Co. v. Thompson (1986), 23 Ohio St.3d 78, 82, 23 OBR 208, 211-212, 491 N.E.2d 688, 691-692.
The judgment is affirmed in relation to Jeffrey, but is reversed as to James and Edna.
Judgment affirmed in part, reversed in part and cause remanded.
SLABY, P.J., and DICKINSON, J., concur.
EDWARD J. MAHONEY, J., retired, of the Ninth Appellate District, sitting by assignment.
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