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Westfield Companies4/8/2005
AFFIRMING
Westfield Companies, Inc. (Westfield) and Kentucky Associated General Contractors Self Insurers' Fund (Kentucky Associated) appeal from a judgment of the Boone Circuit Court determining that they have a duty to defend, and potential duty to indemnify, Quality Signs & Service, Inc. (Quality Signs) in an action brought by the Estate of Christopher House in Clermont County, Ohio, seeking recovery of damages for Christopher's accidental death while acting in the scope of his employment with Quality Signs. The Estate pleads causes of action under Ohio's common law workplace intentional tort precedents. For the reasons stated below, we affirm.
Christopher House was a resident of Florence, Kentucky. He was employed by Quality Signs, which is headquartered in Burlington, Kentucky. On October 30, 2001, House traveled by company vehicle from Burlington to Clermont County, Ohio. He planned to return to the Quality Signs facility in Burlington before the end of his workday. While performing a repair job at a motel located in Clermont County, House was killed while acting within the scope of his employment. House's death was as a result of being thrown from a crane basket while working on a sign approximately 55 feet above ground level.
On May 13, 2002, the Estate filed suit against Quality Signs in the Court of Common Pleas in Clermont County, Ohio, seeking recovery under Ohio's common law workplace intentional tort precedents. The action alleged counts for wrongful death, for survivorship damages, and for punitive damages. Each count alleged that the accidental death of House was "substantially certain" to occur from the standpoint of Quality Signs.
At the time of House's death, Quality Signs was covered by insurance policies issued by Westfield and Kentucky Associated. The Westfield policy provided a primary Comprehensive General Liability Policy, and a Commercial Umbrella Policy. Quality Signs seeks coverage related to the Ohio lawsuit under the umbrella policy only. Kentucky Associated provided Quality Signs with a Workers' Compensation Policy and an Employers' Liability Policy.
Kentucky Associated agreed to payment under the Workers' Compensation section of the policy, and workers' compensation coverage is not an issue in this case. However, Quality Signs claims coverage related to the Ohio action under the Employers' Liability section of the Kentucky Associated policy.
Both Westfield and Kentucky Associated denied coverage associated with the Ohio action under their respective policies, though Westfield later agreed to defend Quality Signs in the action under a "reservation of rights," pending the outcome in the instant action.
On October 7, 2002, Quality Signs filed an action in Boone Circuit Court which, among other things, sought a declaration of rights that it was entitled to a defense and, if held liable, to indemnification, in the Ohio action under the policies issued by Westfield and Kentucky Associated. On February 16, 2004, the circuit court rendered an order determining that Westfield and Kentucky Associated had a duty to defend, and a potential duty to indemnify, Quality Signs in the Estate's Ohio intentional tort lawsuit. This appeal followed.
STANDARD OF REVIEW
We begin by noting that this case was tried by the circuit court sitting without a jury. It is before this Court upon the trial court's findings of fact and conclusions of law and upon the record made in the trial court. Accordingly, appellate review of the trial court's findings of fact is governed by the rule that such findings shall not be set aside unless clearly erroneous. Ky. R. Civ. P. (CR) 52.01; Larg
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