[Cite as Cincinnati Specialty Underwriters Ins. Co. v. Larschied, 2014-Ohio-4137.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY


THE CINCINNATI SPECIALTY
UNDERWRITERS INSURANCE CO.,

        PLAINTIFF-APPELLEE,                                         CASE NO. 1-14-01

        v.

HARRY LARSCHIED, INDIVIDUALLY
AND DBA HARRY'S HIDE A WAY & PATIO,

        DEFENDANT-APPELLANT,
        -and-                                                       OPINION

ANTHONY LANE, ET AL.

        DEFENDANTS-APPELLEES.


                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CV 2013 0410

                                      Judgment Affirmed

                          Date of Decision: September 22, 2014


APPEARANCES:

        Robert B. Fitzgerald for Appellant, Harry Larschied, D.B.A., Harry’s
                  Hide A Way & Patio

        Michael M. Neltner for Appellee, Cincinnati Specialty Underwriters
                  Insurance Company
Case No. 1-14-01


ROGERS, J.

       {¶1} Defendant-Appellant, Harry Larschied, individually and dba Harry’s

Hide A Way & Patio, appeals the judgment of the Court of Common Pleas of

Allen County granting summary judgment to Plaintiff-Appellee, Cincinnati

Specialty Underwriters Insurance Co. (“Cincinnati Insurance”) in a declaratory

judgment action. On appeal, Larschied argues that the court erred in finding that

the allegations in the complaint were excluded from coverage under the insurance

policy. Larschied also argues that, if the insurance policy does exclude the claim,

the trial court erred in failing to find the insurance policy to be illusory. For the

reasons that follow, we affirm.

       {¶2} On December 27, 2012, Anthony Lane filed a complaint naming

Larschied, individually and dba Harry’s Hide A Way & Patio, as a co-defendant

with Swan Nichols.      Lane sought damages from an alleged altercation with

Nichols that occurred at Harry’s Hide A Way & Patio early in the morning on July

5, 2012. The complaint listed four claims against Nichols: (1) battery; (2) assault;

(3) intentional infliction of serious emotional distress; and (4) negligent infliction

of serious emotional distress.     The complaint also listed two claims against

Larschied: (1) violation of policy, practice, or custom; and (2) failure to supervise.

(Docket No. 17, Exhibit A, p. 7) (“Complaint”).




                                         -2-
Case No. 1-14-01


       {¶3} At the time of the alleged altercation, Larschied was insured under a

Commercial General Liability Policy (“the policy”) issued through Cincinnati

Insurance. The policy stated that it would

       pay those sums that the insured becomes legally obligated to pay as
       damages because of “bodily injury” or “property damage” to which
       this insurance applies. We will have the right and duty to defend the
       insured against any “suit” seeking those damages. However, we will
       have no duty to defend the insured against any “suit” seeking
       damages for “bodily injury” or “property damage” to which this
       insurance does not apply.

(Docket No. 17, Exhibit C, Commercial General Liability Coverage Form, p. 1).

(“Insurance Policy”). Further, the policy defined an insured as:

       1. If you are designated in the Declarations as:

       a. An individual, you and your spouse are insureds, but only with
          respect to the conduct of a business of which you are the sole
          owner.

       ***

       2. Each of the following is also an insured:

       a. Your “volunteer workers” only while performing duties related
          to the conduct of your business, or your “employees” * * * but
          only for acts within the scope of their employment by you or
          while performing duties related to the conduct of your business.

(Id. at p. 9). Larschied was named as an individual in the declarations. The policy

stated that “ ‘Bodily Injury’ means bodily injury, sickness or disease sustained by

a person, including death resulting from any of these at any time.” (Id. at p. 13).



                                         -3-
Case No. 1-14-01


         {¶4} The policy also contained an exclusion for claims arising from an

assault or battery. The exclusion stated that the insurance contract

         does not apply to “bodily injury,” “property damage” or “personal
         and advertising” injury arising out of

         (1) An actual or threatened assault or battery whether caused by or
         at the instigation or direction of any insured, their employees,
         patrons or any other person;

         (2) The failure of any insured or anyone else for whom the insured
         is legally responsible to prevent or suppress assault or battery; or

         (3) The negligent:
                  (a) Employment;
                  (b) Investigation or reporting or failure to report any assault
                      or battery to the proper authorities;
                  (c) Supervision;
                  (d) Training;
                  (e) Retention;
         of a person for whom any insured is or ever was legally responsible
         and whose conduct would be excluded by paragraph a. above.

(Docket No. 17, Exhibit C, Exclusion – Assault or Battery, p. 1) (“Assault and

Battery Exclusion”). Larschied requested that Cincinnati Insurance defend him

against Lane’s lawsuit under the insurance contract, and Cincinnati Insurance

complied.1


1
   In its judgment entry, the trial court noted that the claims against Larschied had been dismissed on
November 26, 2013, through summary judgment. (Docket No. 22, p. 2). While not in the trial court
record, at oral argument Larschied stated that his defense was provided under a reservation of rights. As a
result, the declaratory judgment action is not moot, as a justiciable controversy still exists. Allstate Ins. Co.
v. Long, 11th Dist. Portage Nos. 2001-P-0038, 2001-P-0039, 2003-Ohio-61, ¶ 22.

                                                      -4-
Case No. 1-14-01


       {¶5} On June 12, 2013, Cincinnati Insurance filed a complaint for

declaratory judgment, alleging that it had no duty to defend Larschied against

Lane’s lawsuit as the allegations in the complaint were excluded under the policy.

On October 8, 2013, Cincinnati Insurance moved for summary judgment. In

Larschied’s response, he argued that the exclusion did not apply to the allegations

in the complaint, and that, if it did, the policy is illusory. On January 3, 2014, the

trial court granted summary judgment in favor of Cincinnati Insurance, declaring

that it had no duty to defend Larschied.

       {¶6} It is from this judgment that Larschied filed this timely appeal,

presenting the following assignments of error for our review.

                            Assignment of Error No. I

       THE TRIAL COURT ERRED IN GRANTING THE
       PLAINTIFF/APPELLEE’S MOTION FOR SUMMARY
       JUDGMENT WHEN IT RULED THAT THE ASSAULT OR
       BATTERY ENDORSEMENT “OBVIATED ANY DUTY ON
       THE PART OF THE INSURER TO DEFEND AGAINST OR
       TO COVER ANY DAMAGES THAT AROSE FROM THE
       SUBJECT ALTERCATION AT HARRY’S HIDE A WAY.”
       (SEE JUDGMENT ENTRY OF TRIAL COURT FILED JAN. 3,
       2014, P. 6)

                            Assignment of Error No. II

       THE TRIAL COURT ERRED IN FINDING THAT THE
       INSURANCE POLICY DOES NOT PROVIDE COVERAGE
       AND THEREFORE EFFECTIVELY CREATED AN
       ILLUSORY CONTRACT AS IT FAILS TO PROVIDE ANY
       BENEFIT TO THE INSURED.


                                           -5-
Case No. 1-14-01




                             Assignment of Error No. I

       {¶7} In his first assignment of error, Larschied argues that the trial court

erred in granting summary judgment because Cincinnati Insurance has a duty to

defend him against Lane’s lawsuit.        Specifically, Larschied claims that the

allegations in the complaint brought the action under the coverage of the policy

and are not otherwise excluded. We disagree.

                                Standard of Review

       {¶8} An appellate court reviews a summary judgment order de novo.

Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App.3d 172, 175 (8th

Dist.1999). Accordingly, a reviewing court will not reverse an otherwise correct

judgment merely because the lower court utilized different or erroneous reasons as

the basis for its determination. Diamond Wine & Spirits, Inc. v. Dayton

Heidelberg Distrib. Co., Inc., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25 (3d

Dist.), citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio

St.3d 217, 222 (1994). Summary judgment is appropriate when, looking at the

evidence as a whole: (1) there is no genuine issue as to any material fact, and (2)

the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). In

conducting this analysis the court must determine “that reasonable minds can

come to but one conclusion and that conclusion is adverse to the party against


                                         -6-
Case No. 1-14-01


whom the motion for summary judgment is made, [the nonmoving] party being

entitled to have the evidence or stipulation construed most strongly in the

[nonmoving] party’s favor.” Id. If any doubts exist, the issue must be resolved in

favor of the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 359

(1992).

       {¶9} The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of

material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). In doing so, the

moving party is not required to produce any affirmative evidence, but must

identify those portions of the record which affirmatively support his argument.

Id. at 292-293. The nonmoving party must then rebut with specific facts showing

the existence of a genuine triable issue; he may not rest on the mere allegations or

denials of his pleadings. Id. at 293; Civ.R. 56(E).

       {¶10} Moreover, “[a]n insurance policy is a contract, and its interpretation

is a matter of law for the court.” Allstate Ins. Co. v. Eyster, 189 Ohio App.3d 640,

2010-Ohio-3673, ¶ 17 (3d Dist.), citing Sharonville v. Am. Emp. Ins. Co., 109

Ohio St.3d 186, 2006-Ohio-2180, ¶ 6. An insurance policy must be examined “as

a whole and [with the presumption] that the intent of the parties is reflected in the

language used in the policy.” Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216,

2003-Ohio-5849, ¶ 11. “The coverage under an insurance policy is determined by


                                         -7-
Case No. 1-14-01


construing the contract ‘in conformity with the intention of the parties as gathered

from the ordinary and commonly understood meaning of the language employed.’

” Eyster at ¶ 17, quoting King v. Nationwide Ins. Co., 35 Ohio St.3d 208, 211

(1988).

       {¶11} While terms in an insurance contract are to be given their plain and

ordinary meaning, any ambiguity is construed against the insurer. Lager v. Miller-

Gonzalez, 120 Ohio St.3d 47, 2008-Ohio-4838, ¶ 15. However, “[a]mbiguity

exists only when a provision at issue is susceptible of more than one reasonable

interpretation.” Id. at ¶ 16. “[A] court cannot create ambiguity in a contract where

there is none.” Id.

       {¶12} Larschied argues that two claims in the complaint trigger coverage

under the policy: the fourth claim, which is for negligent infliction of serious

emotional distress, and the fifth claim, which is for a violation of policy, practice

or custom. We will discuss the allegations in each of these claims in turn.

                 Negligent Infliction of Serious Emotional Distress

       {¶13} Before determining whether any exclusions apply, “[o]ne who seeks

to recover on an insurance policy generally has the burden of demonstrating

coverage under the policy and then proving a loss.” Chicago Title Ins. Co. v.

Huntington Natl. Bank, 87 Ohio St.3d 270, 273 (1999), citing Inland Rivers

Service Corp. v. Hartford Fire Ins. Co., 66 Ohio St.2d 32, 34 (1981). Here,


                                         -8-
Case No. 1-14-01


Larschied argues that Lane’s complaint “alleged negligence against an insured

under the policy.” (Appellant’s Br., p. 6).

       {¶14} The terms of the policy define who is an insured for the purposes of

receiving coverage. Galatis, 2003-Ohio-5849 at ¶ 35. Here, the policy will only

“pay for those sums that the insured becomes legally obligated to pay as damages

because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.”

(Emphasis added.) (Insurance Policy, p. 1). The policy creates a “duty to defend

the insured against any ‘suit’ seeking those damages.” (Emphasis added.) (Id.)

The only insureds under the policy are Larschied, his spouse, and his volunteer

workers and employees while they are within the scope of their employment. (Id.

at p. 9-10).

       {¶15} In Lane’s complaint, the fourth claim, which alleges negligent

infliction of serious emotional distress, states that “Defendant Nichols conduct was

negligent and did cause plaintiff to suffer serious emotional distress which was

reasonably foreseeable by Defendant Nichols at the time.” (Emphasis added.)

(Complaint, p. 3). Nichols is not an insured under the terms of the policy, as he is

not Larschied, Larschied’s spouse, a volunteer worker or an employee. Therefore,

even if Nichols becomes legally obligated to pay damages as a result of this claim,

he is not an insured who is legally obligated to pay damages, as required to trigger

coverage under the policy.


                                         -9-
Case No. 1-14-01


       {¶16} Assuming, arguendo, that Nichols is an insured under the terms of

the policy, this claim in the complaint would still not trigger coverage. “An

insurance company owes no obligation to its insured or others injured by the

insured unless the insured’s conduct falls within the policy coverage.” Talbert v.

Continental Cas. Co., 157 Ohio App.3d 469, 2004-Ohio-2608, ¶ 8 (2d Dist.). The

policy states that there is “no duty to defend the insured against any ‘suit’ seeking

damages for ‘bodily injury’ or ‘property damage’ to which this insurance does not

apply.” (Emphasis added.) (Insurance Policy, p. 1). The term “bodily injury” in

the policy “means bodily injury, sickness or disease sustained by a person,

including death resulting from any of these at any time.” (Id. at p. 13).

       {¶17} This court, when analyzing a policy that “defined ‘bodily injury’ as

‘bodily harm, sickness or disease, including death that results,’ ” found that

“bodily injury does not include emotional or mental distress.”          Dieringer v.

Sawmiller, 3d Dist. Auglaize No. 2-12-04, 2012-Ohio-4880, ¶ 3, 15. Even where,

as here, the term “bodily injury” is defined using the words “bodily injury,” the

term is not ambiguous and should not be construed against the insurer in favor of

coverage for emotional injuries. Hawthorne v. Migoni, 5th Dist. Tuscarawas No.

2003 AP 07 0054, 2004-Ohio-378, ¶ 13. Thus, emotional injuries are not “bodily

injury” under the policy.    Therefore, while the claim in the complaint is for




                                        -10-
Case No. 1-14-01


negligence, it cannot be overlooked that it is for negligent infliction of emotional

distress.2 Emotional distress is not a “bodily injury” to which the policy applies.

        {¶18} The grant of coverage is both clear and unambiguous as to who is an

insured and what damages trigger coverage.                       As this claim fails to trigger

coverage, it is not necessary to determine whether an exclusion applies. As

Nichols is not an insured and the alleged damages are not covered under the

policy, Cincinnati Insurance has no duty to defend as a result of this claim.

                           Violation of Policy, Practice or Custom

        {¶19} In Lane’s complaint, the fifth claim is for a “Violation of Policy,

Practice or Custom.” (Complaint, p. 3.) Unlike the claim for negligent infliction

of emotional distress, it is undisputed that this claim is specifically against an

insured, Larschied, and is for damages from a “bodily injury” as it is defined in the

policy. Cincinnati Insurance argues that the Assault and Battery Endorsement

applies to the claim and excludes coverage. Larschied argues that this claim

includes allegations that potentially trigger coverage, because

        [w]hile the legal nature of the allegation * * * is unclear, one thing is
        certain: this allegation is not one of assault or battery. * * * There is
        no provision or language within [Cincinnati Insurance’s] policy that
        expressly excludes an allegation of this kind of coverage. Indeed the
        Assault or Battery Endorsement makes no reference whatsoever to
        an allegation of violation of policy, practice, or custom.

2
  We note that the claim also includes a request for damages for the actual injuries Lane suffered. This
does not change the nature of the claim to anything other than that of emotional distress, as “[p]roof of a
resulting physical injury is admissible as evidence of the degree of emotional distress suffered.” Paugh v.
Hanks, 6 Ohio St.3d 72 (1983), paragraph two of the syllabus.

                                                  -11-
Case No. 1-14-01



Appellant’s Br., p. 7.

       {¶20} The duty of an insurer to defend an action is broader than the duty to

indemnify. Beaverdam Contracting v. Erie Ins. Co., 3d Dist. Allen No. 1-08-17,

2008-Ohio-4953, ¶ 20.     “The duty to defend is determined by the scope of the

allegations in the complaint.” Ward v. United Foundries, Inc., 129 Ohio St.3d

292, 2011-Ohio-3176, ¶ 19, citing Ohio Govt. Risk Mgt. Plan v. Harrison, 115

Ohio St.3d 241, 2007-Ohio-4948, ¶ 19.          “Only if there is no possibility of

coverage under the policy based on the allegations in the complaint will the

insurer not have a duty to defend the action.” Erie Ins. Exchange v. Colony Dev.

Corp., 136 Ohio App.3d 406, 413 (10th Dist.1999).

       However, where the insurer’s duty to defend is not apparent from the
       pleadings in the case against the insured, but the allegations do state
       a claim which is potentially or arguably within the policy coverage,
       or there is some doubt as to whether a theory of recovery within the
       policy coverage has been pleaded, the insurer must accept the
       defense of the claim. Thus, the “scope of the allegations” may
       encompass matters well outside the four corners of the pleadings.

City of Willoughby Hills v. Cincinnati Ins. Co., 9 Ohio St.3d 177, 180 (1984).

       {¶21} This does not allow a court to “impose a duty to defend based on

allegations outside the complaint, where the complaint does not state a claim that

arguably triggers coverage.” Motorists Mut. Ins. Co. v. Natl. Dairy Herd

Improvement Assn., Inc., 141 Ohio App.3d 269, 278 (10th Dist.2001).



                                        -12-
Case No. 1-14-01


       “[W]here a court reviews a complaint and concludes beyond a doubt
       that there are [no] arguably covered claims encompassed therein it
       need not stretch the allegations beyond reason to impose a duty on
       the insurer. To do so would effectively impose an absolute duty on
       the insurer to provide a defense to the insured regardless of the cause
       of action stated in the complaint. Even under the liberal notions of
       notice pleading it would be inherently unfair to require the insurer to
       provide a defense where the pleadings failed to notify, even
       arguably, that the insured is being sued on a claim covered by the
       policy.”

Id., quoting Leland Electrosystems, Inc. v. Travelers Ins. Co., 2d Dist.

Montgomery No. 8580, 1984 WL 5371, *2 (July 10, 1984). “If the conduct

alleged in the complaint is indisputably outside the scope of coverage, there is no

duty to defend.” Carter v. Adams, 173 Ohio App.3d 195, 2007-Ohio-4322, ¶ 10

(1st Dist.).

       {¶22} “[W]here an insurance contract excludes coverage for the claim

against the insured, no duty to defend will arise * * * because the allegations in the

pleadings fall squarely within an area of activity specifically excluded from

coverage.” Beaverdam Contracting at ¶ 21, citing Zanco v. Michigan Mut. Ins.

Co., 11 Ohio St.3d 114, 116 (1984). “[A]n exclusion in an insurance policy will

be interpreted as applying only to that which is clearly intended to be excluded.”

(Emphasis sic.) Hybud Equip. Corp. v. Sphere Drake Ins. Co., Ltd., 64 Ohio St.3d

657, 665 (1992). Exclusions are strictly construed against the insurer, and will

only be enforced if they unambiguously deny coverage under the policy. Eyster,

2010-Ohio-3673 at ¶ 19. Other courts have found assault and battery exclusions to

                                        -13-
Case No. 1-14-01


be unambiguous and applied them to exclude coverage. See Carter at ¶ 33; Colter

v. Spanky’s Doll House, 2d Dist. Montgomery No. 21111, 2006-Ohio-408, ¶ 41;

Sphere Drake Ins. Co. v. Ross, 80 Ohio App.3d 506, 509 (9th Dist.1992).

      {¶23} Here, the exclusion states that the policy “does not apply to bodily

injury * * * arising out of” an assault or battery. (Emphasis added.) (Assault and

Battery Exclusion, p. 1). Further, it excludes any bodily injury arising out of the

failure to prevent or stop an assault or battery, or the negligent supervision,

training, or retention of anyone that should have prevented or stopped an assault

and battery.    Here, Larschied does not claim that the exclusion is ambiguous.

Instead, he argues that the exclusion does not apply to the allegations in the

complaint.

      {¶24} For an exclusion that uses the term “arising out of” to apply, there

must be a causal relationship between the injury and what is excluded. See Penn

Traffic Co. v. AIU Ins. Co., 99 Ohio St.3d 227, 2003-Ohio-3373, ¶ 41 (applying

exclusion for injuries arising out of employment, where injuries occurred during

course of employment); see also Westfield Ins. Co. v. Hunter, 128 Ohio St.3d 540,

2011-Ohio-1818, ¶ 25-26 (finding exclusion for injuries arising out of uninsured

premises did not apply, where there was no causal relationship between the

premises and the injuries). Thus, whether this exclusion applies turns on whether




                                       -14-
Case No. 1-14-01


the allegations in claim five have a causal connection to either the assault and

battery itself or the failure to prevent the assault and battery.

       {¶25} Here, the Lane’s complaint alleges:

                                   FIFTH CLAIM
                      (Violation of Policy, Practice or Custom)

                                          ***

       28. Defendant Larschied, as owner and operator of Harry’s, has
       developed and maintained policies, practices, and customs
       demonstrating a deliberate indifference to the rights of citizens.

       29. Defendant Larschied, as owner and operator of Harry’s, has
       failed to implement policies, practices, and customs to protect the
       rights of citizens. As a result, the employees working security at
       Harry’s have been inadequately trained in the proper duty of care
       owed to patrons.

       30. Such policies, practices, and customs have caused plaintiff to
       suffer a loss of his right to be free from assault and battery
       committed against him and resultant physical injury by defendant
       Nichols.

(Complaint, p. 4).

       {¶26} While the legal nature of what constitutes a violation of policy,

practice or custom may be unclear, an obtuse title of a claim does not prevent our

ability to determine whether the allegations trigger an exclusion under the policy.

The allegations specifically state that the injuries are a result of Larschied’s failure

to adequately train his security, which resulted in their failure to prevent the

underlying assault and battery. Thus, the injuries alleged in the claim have a


                                          -15-
Case No. 1-14-01


causal connection both to the assault and battery itself and to the alleged failure of

Larschied to prevent the assault and battery. As this claim “arises out of” the

assault and battery and a failure to prevent the assault and battery, it does not, even

arguably, trigger coverage under the policy. It is specifically excluded.

       {¶27} Further, assuming arguendo that the complaint includes a claim of a

concurrent cause of injury that is not specifically excluded, Cincinnati Insurance

would still have no duty to defend. Where there is a concurrent cause to an injury

it “does not change the fact that [the] injury was the result of an assault and

battery, the very thing the policy excludes from coverage.” Sphere Drake, 80

Ohio App.3d at 510. When analyzing similar assault and battery exclusions, other

courts have reached a similar conclusion under comparable circumstances. See

Williams v. United States Liab. Ins. Group, 5th Dist. Stark No. 2011 CA 00252,

2012-Ohio-1288, ¶ 15; see also Carter, 2007-Ohio-4322 at ¶ 29.

       {¶28} In Williams, a bar patron tried to leave the premises when she

witnessed the beginnings of a fight. Id. at ¶ 2. However, she was unable to leave

through the nearest exit, as it was blocked by the equipment of the disc jockey. Id.

When she attempted to leave through another exit, she inadvertently became a part

of the melee she had been trying to avoid. Id. After she had obtained a consent

judgment in a lawsuit against the bar, she attempted to recover from the bar

owner’s insurance policy through a declaratory judgment action. Id. at ¶ 4-5. The


                                         -16-
Case No. 1-14-01


trial court granted summary judgment in favor of the insurance company. Id. at ¶

6.   On appeal, the patron argued that the policy, which contained a similar

exclusion, did not exclude a claim for damages arising out of the negligent

blocking of an exit. Id. at ¶ 12-13. The appellate court disagreed, finding that

       reasonable minds could only determine that despite [the patron’s]
       claims of negligence against [the bar], the injuries claimed by [the
       patron] were “based on” the chain of events stemming from a
       physical altercation between other persons in the pub, as well as
       alleged omissions by [the bar’s] employees in connection with the
       suppression of an assault or battery on the premises, thus falling
       under the * * * policy exclusion at issue.

Id. at ¶ 15. As a result, the insurance company had no obligation to indemnify the

insured under the policy. Id.

       {¶29} In Carter, a bar patron was shot and sued the owner. Carter at ¶ 1-2.

The insurance company refused to defend the action, and the bar owner filed a

declaratory judgment action. Id. at ¶ 3. The owner alleged that an assault and

battery exclusion similar to the one in the case sub judice “did not apply to

exclude coverage for allegations based upon negligent security, failure to warn, or

failure to provide reasonable security measures. Id. at ¶ 27. The appellate court

disagreed, finding that “[e]ven though the complaint contained allegations of

negligent hiring, failure to warn, and failure to provide adequate security, coverage

under the policy was barred because the excluded act of assault and battery was

the immediate cause of the injuries that gave rise to the allegations of negligence.”


                                        -17-
Case No. 1-14-01


Id. at ¶ 29. As coverage was precluded under the policy for the shooting, the

insurer had not duty to defend. Id. at ¶ 33.

       {¶30} Similarly, here the injuries claimed in Lane’s complaint all arise out

of the assault and battery. Therefore, any concurrent cause of the damage that

arose from that assault and battery, whether it be for negligent infliction of

emotional distress, violation of policy, practice or custom, or any other cause, is

specifically excluded under the policy. As the only allegations in the complaint

are for injuries arising out of an assault and battery, they are all excluded under the

terms of the policy. As a result, we find that the complaint does not contain any

allegations which trigger coverage or arguably trigger coverage. Without any

possible trigger of coverage in any of the allegations in the complaint, Cincinnati

Insurance had no duty to defend Larschied under the circumstances of this case.

       {¶31} Accordingly, we overrule Larschied’s first assignment of error.

                             Assignment of Error No. II

       {¶32} In his second assignment of error, Larschied argues that if the

exclusion bars recovery under the circumstances of this case, the contract is

illusory. We disagree.

       {¶33} “An insurance provision is illusory when it appears to grant a benefit

to the insured, although in reality it does not.” Beaverdam Contracting, 2008-

Ohio-4953 at ¶ 49.       However, where the insurance contract contains some


                                         -18-
Case No. 1-14-01


coverage for the insured, it is not illusory. See Ward v. United Foundries, Inc.,

129 Ohio St.3d 292, 2011-Ohio-3176, ¶ 24. So long as an exclusion does not

eliminate all coverage under a policy, it will not render the policy illusory.

Compare World Harvest Church v. Grange Mut. Cas. Co., 10th Dist. Franklin No.

13AP-290, 2013-Ohio-5707, ¶ 53 (finding that insurance contract was not illusory

as some insurance coverage under policy still existed beyond the exclusion for

abuse and molestation) with Coleman v. Progressive Preferred Ins. Co., 1st Dist.

Hamilton No. C-070779, 2008-Ohio-3568, ¶ 13 (finding that exclusion eliminating

all coverage made the policy illusory).

        {¶34} Here, the exclusion is limited to claims that arise out of an assault

and battery. Damages for bodily injury or property damage that are not caused by

an assault and battery are still covered, so long as an insured is legally obligated to

pay those damages. As argued by Cincinnati Insurance in its brief, “if a patron

were to slip and fall at the premises and sue Harry’s, [Cincinnati Insurance] would

provide a defense to Harry’s for its negligence.” (Appellee’s Br., p. 13). We

agree that, under those circumstances, insurance coverage would be triggered

under the policy.3 As a result, we cannot say that the policy provided no coverage



3
  We note that Cincinnati Insurance provided other examples of how the duty to defend would attach under
the policy, including an allegation of getting sick from eating the food. However, determining whether
getting sick from eating the food would trigger coverage involves making determinations as to how
exclusions for communicable, contagious and infectious disease as well as for microorganisms, biological
organisms, bioaerosols and organic contaminants, interact with an exclusion for fungi and bacteria that
exempts from the exclusion bodily injury from fungi and bacteria found on food. As the negligence claim

                                                 -19-
Case No. 1-14-01


to Larschied, or that the exclusion eliminated all coverage. Therefore the policy is

not illusory.

        {¶35} Accordingly, we overrule Larschied’s second assignment of error.

        {¶36} Having found no error prejudicial to the Larschied, in the particulars

assigned and argued, we affirm the judgment of the trial court.

                                                                                Judgment Affirmed

WILIAMOWSKI, P.J. and SHAW, J. concurs.

/jlr




does not appear to be affected by exclusions in the policy, it is at least one situation where the duty to
defend would attach from the outset without further inquiry.

                                                  -20-
