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Cincinnati Insurance Co. v. Tauro Brothers Trucking Co.6/7/2002
yee to continue to perform the dangerous task; *"
On October 20, 1999, appellee filed a complaint for declaratory judgment regarding whether appellee had an obligation to represent and indemnify appellant in the lawsuit brought by the estate of Piecuch. Appellant filed an answer and counterclaim. Both parties filed motions for summary judgment.
On March 7, 2001, the trial court awarded summary judgment in favor of appellee. From this judgment, appellant raises the following assignment of error:
"[1.]The trial court erred in granting [appellee's] motion for summary judgment and in overruling defendant's motion for summary judgment."
In appellant's sole assignment of error, he argues that when an employer commits an intentional tort, the employment relationship is not implicated under Ohio law. Therefore, appellant contends, any exclusion in an insurance policy, which is dependent upon the existence of an employment relationship, is not operative when an employer intentional tort is alleged. In support of this argument appellant relies on the following passage:
"`Injuries resulting from an employer's intentional torts, even though committed at the workplace, are utterly outside the scope of the purposes intended to be achieved by Section 35 and by the Act. Such injuries are totally unrelated to the fact of employment. When an employer intentionally harms his employee, that act effects a complete breach of the employment relationship, and for purposes of the legal remedy for such an injury , the two parties are not employer and employee, but intentional tortfeasor and victim. *'" (Emphasis sic.) Johnson v. B.P. Chemicals, Inc., 85 Ohio St.3d 298, 305, 1999-Ohio-267, quoting Brady v. Safety-Kleen Corp. (1991), 61 Ohio St.3d 624, 634.
Accordingly, appellant contends that, in this case, none of the applicable exclusions are operative, and, thus, it is entitled to coverage under the commercial general liability coverage.
In opposition, appellee argues that the instant case is governed by the terms of the insurance policy - including the exclusions, and not by the body of case law concerning the elements of employer intentional tort and how they impact the employer-employee relationship. Upon review, we conclude that appellant's reliance on Johnson is misplaced.
Neither Brady nor Johnson dealt with the relationship between an employee and his employer's liability insurer. Instead, both cases involved the issue of whether a claimant can maintain a common law action to redress injury incurred as a result of an employer intentional tort. In both cases, the Supreme Court of Ohio held that, as it relates to a workers' compensation claim, an employer's intentional torts are totally unrelated to the fact of employment. Thus, a claimant may maintain a private cause of action. The crux of both Brady and Johnson was whether a claimant could also maintain a common law claim of intentional employer tort in addition to a workers' compensation claim, not whether an employer's insurance provider was required to indemnify and/or represent its insured in an employer intentional tort action. Therefore, appellant's reliance on Brady and Johnson is misplaced.
In the instant case, we are not presented with the issue of whether the estate of Piecuch can maintain a common law claim of employer intentional tort. The sole issue before this court is whether the insurance policy provides for representation and/or indemnification of tort claims brought by an employee alleging that his injury was substantially certain to occur. Having concluded that Brady and Johnson do not govern the instant case, we must look to the relevant law re
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