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State Farm Fire and Casualty Co. v. Condon9/30/2005
penal statute.
{ } State Farm issued three business-insurance policies to Condon covering interrupted periods of time from October 1998 to March 2002. The policies provided that State Farm "would pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury, property damage, personal injury or advertising injury * * * caused by an occurrence." (Emphasis omitted.)
{ } "Occurrence" was defined as an accident that results in bodily injury or property damage, or the commission of an offense or series of related offenses that result in personal injury . Personal injury was defined as "injury, other than bodily injury, arising out of one or more of the following offenses:
{ } "a. false arrest, detention or imprisonment;
{ } "b. malicious prosecution;
{ } "c. wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, by or on behalf of its owner, landlord or lessor;
{ } "d. oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products, or services;
{ } "e. oral or written publication of material that violates a person's right of privacy."
{ } Each policy excluded coverage for bodily injury or property damage that is "expected or intended from the standpoint of the insured," or resulted from the "willful and malicious acts of the insured." Most importantly, in subsection 16(a), the policies excluded coverage for personal injury "arising out of the willful violation of a penal statute or ordinance committed by or with the consent of the insured * * *."
Occurrences During Covered Periods
{ } Condon first argues that the trial court erred by concluding that the acts for which he seeks a defense and indemnification did not occur during a covered period. State Farm's first policy expired on October 31, 1999. Afterwards, there was no State Farm policy in place until December 22, 1999. This second policy expired on December 1, 2000. Again, no State Farm policy extended coverage until February 7, 2001, when the third policy took effect. Condon took the morgue photographs between August 2000 and January 2001.
{ } Relying upon Trinity Universal Ins. Co. v. Turner (Mar. 12, 2004), E.D.Tenn. Nos. 1:02-cv-231, 1:02-cv-298, and 1:03-cv-083, the trial court concluded that the families were not actually harmed until the coroner informed them that the photos had been taken. This occurred between January 19 and January 25, 2001. Thus, the "occurrence" required for coverage had happened in the gap between the second and third policies. But Trinity Universal stands for the proposition that a plaintiff's claim for mental anguish does not accrue until the plaintiff is actually aware that a relative's corpse has been mishandled. See id.; see, also, Biro v. Hartman Funeral Home (1995), 107 Ohio App.3d 508, 669 N.E.2d 65 (emotional-distress claims do not accrue until the plaintiff learns of the tort).
{ } State Farm argues that we must defer to the findings of the trial court. This deference would preclude reversing its judgment if it is supported by some competent, credible evidence. See Myers v. Garson, 66 Ohio St.3d 610, 1993-Ohio-9, 614 N.E.2d 742; C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578, syllabus. This is the proper standard where the trial court has made factual findings after having heard the testimony of witnesses. See Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273; see, also, Stand Energy Corp. v. Ciner
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