State Farm Fire and Casualty Co. v. Condon9/30/2005
llful violation of a penal statute or ordinance committed by or with the consent of the insured."
{ } At his criminal trial, Condon was convicted of eight counts of gross abuse of a corpse, in violation of R.C. 2927.01(B), punishable as a felony of the fifth degree. R.C. 2927.01(B), which requires proof that a person "treat a human corpse in a way that would outrage reasonable community sensibilities," is a penal statute, or "a law that defines an offense and prescribes its corresponding fine, penalty, or punishment." Black's Law Dictionary (8 Ed.Rev.1999) 1449; see, also, State v. Collier (1991), 62 Ohio St.3d 267, 273, 581 N.E.2d 552.
{ } Condon relies upon Manley v. Rufus Club Mozambique, Inc. (1996), 111 Ohio App.3d 260, 675 N.E.2d 1342, where the Seventh Appellate District cautioned against invoking issue preclusion between criminal and civil actions, to assert that he did not act willfully. We note that, unlike the plaintiff in Manley who was merely a witness at trial, Condon, as a party, had every opportunity to fully litigate the issue of his culpable mental state in the criminal prosecution against him. See id. at 263, 675 N.E.2d 1342.
{ } A conviction for gross abuse of a corpse requires proof that the accused acted recklessly. See State v. Glover (1984), 17 Ohio App.3d 256, 257, 479 N.E.2d 901; see, also, R.C. 2901.21(B); State v. Condon, 152 Ohio App.3d 629, 2003-Ohio-2335, 789 N.E.2d 696, at -31. Under R.C. 2901.22(C), a person acts recklessly when "with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist."
{ } "Recklessness has been held to be the functional equivalent of willfulness in the civil context. * * * For the purpose of deciding whether or not the exclusion here has been triggered, reckless action is tantamount to willful conduct." Nationwide Mut. Fire Ins. Co. v. Kubacko (1997), 124 Ohio App.3d 282, 288, 706 N.E.2d 17; see, also, Thompson v. McNeill (1990), 53 Ohio St.3d 102, 104, 559 N.E.2d 705, fn. 1 ("The term 'reckless' is often used interchangeably with 'willful' and 'wanton.' "). Thus, a conviction for gross abuse of a corpse is a willful violation of a penal statute. Pursuant to subsection 16(d), there is no coverage under the policies for the personal injuries alleged in this case.
{ } The assignment of error is overruled, as Condon is not entitled to coverage under the State Farm policies. As Condon's conduct as alleged in the federal complaint is indisputably outside the scope of coverage, there is no duty to defend. See Willoughby Hills v. Cincinnati Ins. Co., 9 Ohio St. 3d at 180, 459 N.E.2d 555.
{ } Therefore the judgment of the trial court is affirmed.
Judgment affirmed.
SUNDERMANN and HENDON, JJ., concur.
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