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Cincinnati Insurance Co. v. Tauro Brothers Trucking Co.6/7/2002
JUDGMENT: Affirmed.
This is an appeal from the judgment of the Trumbull County Court of Common Pleas, which granted summary judgment in favor of appellee, The Cincinnati Insurance Company, on a complaint for declaratory judgment brought by appellee. The trial court determined that appellee was not obligated to represent and/or indemnify appellant, the Tauro Brothers Trucking Company, in the underlying case, filed by the estate of Walter Piecuch.
A review of the record on appeal reveals that, on August 19, 1998, Walter Piecuch ("Piecuch") sustained mortal injuries, while unloading a tanker truck, during the course of his employment with appellant.
On August 19, 1999, the estate of Piecuch filed a complaint against appellant, alleging: a cause of action for a substantial certainty type tort against his employer, appellant; and, a cause of action for product liability and/or negligence against the remaining named defendant, Fruehauf Trailer Corp.
At the time of the accident, appellant was the named insured under a policy of commercial general liability coverage issued by appellee. The policy of insurance was modified by an Ohio Liability Coverage Enhancement, commonly known as "Stop Gap" coverage.
The commercial general liability coverage, which covers bodily injury and property damage, provides in relevant part:
"SECTION I-COVERAGES
"COVERAGE A.
"BODILY INJURY AND PROPERTY DAMAGE LIABILITY
"1. Insuring agreement
"a. We will pay those sums that the insured becomes legally obligated to pay as damages because of `bodily injury' or `property damage' to which this insurance applies. We will have the right and duty to defend any `suit' seeking those damages. *"
"2. Exclusions
"This insurance does not apply to:
" *
"e. Employer's Liability "`Bodily injury' to:
"(1) An `employee' of the insured arising out of and in the course of:
"(a)Employment by the insured, or
"(b) Performing duties related to the conduct of the insured's business; *"
" *
"h. Mobile Equipment
"`Bodily Injury' or `property damage' arising out of:
"(1) The transportation of `mobile equipment' by an `auto' owned or operated by or rented or loaned to any insured; *"
Coverage D, the Ohio liability Coverage Endorsement, modifies Section I, supra, as follows:
"A. SECTION I-COVERAGES is amended to include the following: " *
"2. Exclusions.
"This insurance does not apply to:
"(h) `bodily injury' expected or intended from the standpoint of the insured. This exclusion includes but is not limited to:
"(1) any liability for acts committed by or at the direction of an insured with the deliberate intent to injure; and
"(2) any liability for acts committed at the direction of an insured in which the act is substantially certain to cause `bodily injury.' For purposes of this insurance, an act is substantially certain to cause `bodily injury' when all three of the following conditions are met:
"(a) an insured knows of the existence of a dangerous process, procedure, instrumentality or condition within its business operation.
"(b) an insured knows that if an employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be substantially certain; and
"(c) an insured under such circumstances and with such knowledge does, act to require the emplo
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