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Cambridge Mut. Fire Ins. Co. v. Tollett6/26/1996
he result of Boker negligently or wantonly striking decedent with a knife, causing his death. Neither party disputes that a loss resulting from Boker's negligent or wanton conduct would be covered by her homeowner's insurance policy. Therefore, Cambridge had an absolute duty to defend Boker because Tollett's complaint stated a claim within the policy's coverage, and the trial court committed reversible error by holding otherwise.
Although Tollett's argument blurs the distinction between the duty to defend and the duty to indemnify, by its very terms the above provision applies only to Cambridge's duty to defend, not to its duty to indemnify. Therefore, the first assignment of error is sustained only as it pertains to Cambridge's duty to defend Boker.
In her second assignment of error, Tollett contends that the trial court erred " s a matter of law" by finding that Cambridge had no duty to indemnify Boker merely because it concluded that Boker's act of stabbing the decedent was intentional. Relying on Physicians Ins. Co. v. Swanson (1991), 58 Ohio St.3d 189, 193, 569 N.E.2d 906, 910-911, Tollett argues that the act itself was insufficient to establish that Boker's act was intentional; Boker must have intended the result as well. Tollett apparently concedes that Boker's act was intentional, but asserts that it had not been established that the result was intended.
While it is true that the policy excludes only injuries which were intended by the insured, the decedent's death qualifies as such an injury . While Boker and the decedent were arguing, the decedent retrieved a steak knife from the kitchen. Boker responded, "Well, that's not a knife." She went to the kitchen and returned with a larger knife. While within arm's length of the decedent, Boker slashed the knife, striking him three times. The first two cuts were minor, but the third was fatal.
Tollett has failed to explain how, based on these facts, Boker could have intentionally slashed a knife at the decedent, but not have intended to injure him. This was not a situation, as in Swanson, where the insured was a considerable distance from the victim and fired a gun in his general direction. Rather, it was more akin to firing at point blank range. Intent to injure has been presumed from firing a gun at close range. Moler v. Beach (1995), 102 Ohio App.3d 332, 337, 657 N.E.2d 303, 306. Therefore, the trial court did not err by presuming an intent to injure from Boker's intentional act of slashing the knife at the decedent. The second assignment of error is overruled.
Tollett's third assignment of error is that the trial court erred in admitting an uncertified copy of a journal entry from juvenile court which indicated that Boker had admitted that she committed the crime of murder. Even if the trial court erred in admitting this evidence, however, Tollett has failed to demonstrate prejudice. The trial court stated on the record that it was not going to rely on this evidence: "I know what happened in juvenile court, but I am not giving that any credence." Instead, the trial court determined the intentional nature of Boker's conduct based on the other evidence presented at trial. The third assignment of error is overruled.
Judgment affirmed in part and reversed in part.
BAIRD and SLABY, JJ., concur.
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