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Estate of Izold v. Suburban Power Piping Corp.3/20/1997
JUDGMENT: AFFIRMED.
Plaintiffs-appellants Estate of Michael Izold, et al., appeal from the May 30, 1996, half-sheet status form order of the trial court which determined that: (1) the stop gap indemnity coverage contained in the insurance policy issued by new party defendant- appellee Transcontinental Insurance Company (the "insurer") to the insured, defendant Suburban Power Piping Corporation ("SPP" or "insured"), which was in addition to a commercial general liability policy, did not obligate the insurer to indemnify the insured in the event of an adverse judgment in an intentional tort case ; and, (2) the United States Bankruptcy Court's orders concerning the existence of SPP's insurance coverage towards the accident in question were not binding on the trial court. For the reasons adduced below, we affirm.
A review of the record on appeal indicates that Michael Izold was an ironworker employed by SPP. While working on a jobsite on January 18, 1991, Mr. Izold was the victim of an industrial on- the-job accident and died that day after being crushed by a steel beam which had fallen on him. On June 24, 1992, plaintiffs filed a complaint for intentional tort/wrongful death survivorship against SPP. See Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608, 433 N.E.2d 572 (established a cause of action for workplace intentional torts); Fyffe v. Jeno's Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d 1108 (element of employer's "intent" demonstrated by the presence of three factors). Thereafter, SPP filed a Chapter 7 bankruptcy petition in federal bankruptcy court. The bankruptcy court ordered a stay of proceedings on September 9, 1992. Plaintiffs were granted relief from the stay order on March 22, 1993, so that plaintiffs could continue the negligence action in state court against the insurer, who had assumed the financial obligation of the insured, SPP.
On July 7, 1994, plaintiffs voluntarily dismissed the state court action without prejudice pursuant to Civ.R. 41(A). On June 2, 1995, plaintiffs refiled the action in state court. On July 25, 1995, the bankruptcy court again granted relief from the automatic stay of proceedings, thereby allowing the refiled state court action to proceed.
The intentional tort action was heard before a jury in February of 1996, with a verdict being returned in favor of plaintiffs against SPP in the amount of $500,000 in compensatory damages. (Transcripts of the trial proceedings and deposition transcripts are not in the record on appeal.) In the verdict, the jury specifically answered the following interrogatory:
2. Do you find that an officer, supervisor or foreman of Suburban Power Piping Corporation knew that harm to Michael A. Izold on January 18, 1991 was substantially certain to occur.
Yes ("Yes" or "No")
a. If the answer to No. 2 is "Yes," please identify:
(i) The individual possessing this knowledge.
Robert Palumbro.
(ii) The event which was known to be substantially certain to occur.
The beam would fall if the chain falls were removed.
3. Do you find that an officer, supervisor or foreman of Suburban Power Piping Corporation, under such circumstances and with the actual knowledge that harm was substantially certain to occur Mr. Izold, required Mr. Izold to perform the dangerous task.
Yes ("Yes" or "No")
a. If the answer to No. 3 is "Yes," please identify:
(i) The dangerous task which Mr. Izold was required to perform.
Working underneath a suspended load.
(ii) The individual who required Mr. Izold to perform the t
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