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Cambridge Mut. Fire Ins. Co. v. Tollett6/26/1996
QUILLIN, Presiding Judge.
Appellant, Brenda S. Tollett, appeals from a judgment of the Lorain County Court of Common Pleas that determined that appellee, Cambridge Mutual Fire Insurance Company ("Cambridge"), had no duty to defend or indemnify its insured against a wrongful death claim brought by Tollett. We reverse the triascourt's judgment as to the duty to defend, but affirm the trial court's determination that Cambridge had no duty to indemnify the insured.
On February 2, 1991, Rachel Boker fatally stabbed her boyfriend, Keith Anthony Tollett, during an argument. Brenda S. Tollett, mother of the decedent and administrator of his estate, filed a civil action against Boker and several others. The complaint alleged that Boker had negligently or recklessly struck Tollett with a knife, causing his death.
Cambridge, Boker's homeowner's insurance carrier, brought this declaratory judgment action to determine whether it had a duty to defend or indemnify Boker. It was Cambridge's position that, although the complaint alleged that the injury was a result of the insured's negligence or recklessness, the injury was in fact the result of an intentional act by Boker. Boker's policy provides no coverage for losses resulting from an insured's intentional acts:
"We do not insure for loss caused directly or indirectly by any of the following * * *[;]
"h. Intentional Loss, meaning any loss arising out of any act committed:
"(1) by or at the direction of an insured; and
"(2) with the intent to cause a loss." (Boldface sic.)
After an evidentiary hearing, the trial court concluded that Cambridge had no duty to defend or indemnify Boker because her acts were intentional "as defined under the terms of the insurance policy." Tollett appeals and assigns three errors.
Tollett's first assignment of error is that the trial court erred in determining that Cambridge had no duty to defend or indemnify Boker, even if her conduct was in fact intentional, because Coverage E of the policy explicitly provides:
"If a claim is made or a suit is brought against an insured for damages because of bodily injury * * * caused by an occurrence to which this coverage applies, we will:
"* * *
"2. provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent. * * *" (Boldface sic.)
The Supreme Court of Ohio has held that an agreement by an insurer to defend groundless, false or fraudulent claims creates an absolute duty to defend claims which allege losses covered by the policy:
"An insurance policy which states that the insurer is obligated to defend in any action seeking damages payable under the policy against the insured, even whersthe allegations are groundless, false or fraudulent, imposes an absolute duty upon the insurer to assume the defense of the action where the complaint states a claim which is partially or arguably within policy coverage." Sanderson v. Ohio Edison Co. (1994), 69 Ohio St.3d 582, 635 N.E.2d 19, paragraph one of the syllabus.
This duty to defend "may arise solely from the allegations of the underlying complaint, regardless of the true facts as they are known to the insurer." Preferred Risk Ins. Co. v. Gill (1987), 30 Ohio St.3d 108, 114, 30 OBR 424, 429, 507 N.E.2d 11 18, 1124.
Therefore, although the trial court found that Boker had intentionally killed the decedent, that determination was not dispositive of Cambridge's duty to defend Boker in the civil action. Tollett's complaint against Boker alleged that the decedent's death was t
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