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Nationwide Mut. Fire Ins. Co. v. Pendrey9/30/1997
Per Curiam.
This case is before the court on appeal from a judgment of the Lucas County Court of Common Pleas which declared that plaintiff-appellant, Nationwide Mutual Fire Insurance Company ("Nationwide"), shall provide legal representation to defendant-appellant, Harvey Decker, for legal action arising out of an altercation on March 10, 1995. The court further declared that Nationwide would be required to pay a judgment rendered against Decker only if the judgment was based solely upon Decker's negligence. From that judgment, Nationwide raises the following assignments of error:
"I. The trial court erred in failing to grant judgment to plaintiff-appellant Nationwide Mutual Fire Insurance Company following the coverage trial to the bench or upon motion for summary judgment where the undisputed evidence was that Decker, its insured, during the course of a bar fight, wielded an "inch" hunting knife in close proximity to decedent Lawrence Pendrey, resulting in a single, mortal stab wound to the heart, such that intent to cause harm should be inferred as a matter of law, and judgment finding no duty to indemnify and defend Decker should be entered.
"Il. The trial court erred in failing to grant judgment to plaintiff-appellant Nationwide Mutual Fire Insurance Company following the coverage trial to the bench or upon motion for summary judgment where the sole, credible evidence was that the insured ought to know harm would result from wielding the "inch" hunting knife within the exclusion to the policy of insurance, and judgment finding no duty to indemnify and defend Decker should be entered.
"III. The trial court erred in failing to grant judgment to plaintiff-appellant Nationwide Mutual Fire Insurance Company following the coverage trial to the bench or upon motion for summary judgment where the sole, credible evidence was that injury was substantially certain to result from wielding the "inch" hunting knife with decedent Lawrence Pendrey in close proximity, such that there is no occurrence within the grant of coverage in the policy of insurance, and judgment finding no duty to indemnify and defend Decker should be entered.
"IV. In the alternative, the trial court erred in failing to, in fact, make findings of fact and conclusions of law following the coverage trial to the bench, such that the judgment entry of the trial court deferring to the outcome of a trial in another case in which plaintiff-appellant Nationwide is not a party, should be reversed and the case remanded to the trial court for findings of fact and conclusions of law based solely upon the evidence before the court in the record of the coverage trial."
On the evening of March 10, 1995, Harvey Decker and Lawrence Pendrey were involved in a fight, initiated by Pendrey, at the Rib Room bar in Toledo, Lucas County, Ohio. The two men were acquaintances but, due to several incidents which had occurred between the two in the past, there existed "bad feelings" between them. In particular, Decker had accused Pendrey's wife of cheating at cards and had made a derogatory comment about her bust. In return, one evening at the Rib Room, Pendrey bought a round of drinks for everyone at the bar except Decker. Several witnesses testified below that in the weeks prior to the stabbing, Decker had stated that he was going to "mess up" Pendrey. Decker, however, denied making these statements. On the evening of the incident involved herein, Pendrey was at the Rib Room with his wife, Sharon L. Pendrey, administrator of the estate of Lawrence Pendrey, and Decker was at the bar, meeting with friends. At approximately 10:00 p.m., Pendrey approached Decker, who was sitting
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