[Cite as Hawk v. Stocklin, 2014-Ohio-2335.]




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


MICHAEL W. HAWK, ET AL.,

        PLAINTIFFS-APPELLANTS,

        v.                                               CASE NO. 1-13-56

B.J. STOCKLIN,

        DEFENDANT-APPELLEE,
        -and-

HARRY LARSCHIED, D.B.A.,                                 OPINION
HARRY’S HIDE A WAY & PATIO,

        DEFENDANT-APPELLANT.


                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CV 2012 0448

                       Judgment Reversed and Cause Remanded

                              Date of Decision: June 2, 2014



APPEARANCES:

        Michael A. Rumer for Appellants Hawk, et al.
        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. 1-13-56



SHAW, J.

       {¶1} Plaintiffs-appellants, Michael W. Hawk (“Michael”), Thomas M.

Hawk, co-guardian of Michael W. Hawk, and Nancy Hawk, co-guardian of

Michael W. Hawk (collectively referred to as the “Hawks”), and defendant-

appellant Harry Larschied (“Larschied”), individually and dba Harry’s Hide A

Way & Patio, appeal the October 9, 2013 judgment of the Allen County Court of

Common Pleas granting a motion for summary judgment filed by intervening

plaintiff-appellee,   Cincinnati   Specialty   Underwriters   Insurance   Company

(“CSU”).

       {¶2} This case arises out of an altercation between Michael and an

individual named B.J. Stocklin (“B.J.”) on December 14, 2011.

       {¶3} For approximately five years, B.J. worked at Harry’s Hide A Way, a

bar owned and operated by Larschied. Harry’s Hide A Way’s hours of operation

were from 7:00 p.m. to 2:30 a.m, Monday through Saturday. During the day, B.J.

performed general maintenance and custodial tasks to prepare the bar to be open

for business. At night, B.J. worked as the bar’s security. B.J. explained that he

did not have a set number of hours that he worked at night. Rather, he typically

arrived to the bar when it opened at 7:00 p.m. to make sure all the people

scheduled to work security had appeared. If they had not, B.J. clocked in and

worked. However, if the bar was properly staffed, B.J. did not clock in but still

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Case No. 1-13-56


remained on the premises throughout the night to ensure that everything ran

smoothly. B.J. and other security personnel considered him to be the head of

security at Harry’s Hide A Way. B.J. recalled that he worked nearly every day

and night during the year of 2011.

       {¶4} On the night of December 14, 2011, B.J. arrived at 7:00 p.m. when

Harry’s Hide A Way opened. B.J. wore an orange shirt with “Harry’s Hide A

Way” and “Security” written across the front. B.J. did not clock in right away

because he did not know at that point if he would be needed for security. Instead,

he assisted the members of the rap/hip-hop band slated to perform there that night

by helping them set up their equipment. Not long after B.J., Andrew Garrett, the

security person scheduled to work that night arrived. Andrew also wore an orange

security shirt. Approximately forty minutes after the bar opened, business was

slow and B.J. and Andrew decided to play a game of pool. Around this time,

Michael arrived to the bar with his family and friends.

       {¶5} Witnesses at the bar observed Michael mocking the rap/hip-hop band

on the stage and loudly stating racial epithets regarding the genre of music. B.J.

also observed Michael grab the chalk from one of the pool tables being used by

other patrons and take it to the table where he was playing. B.J. asked the other

patrons if they were still using the chalk. The other patrons indicated that they

were not finished with their game and B.J. approached Michael about taking the


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Case No. 1-13-56


chalk. According to B.J.’s recollection of the events, Michael became loud and

belligerent and confronted B.J. Michael stood nose to nose with him and said

“You don’t want to fuck with me, Mother Fucker, I’ve got all my boys with me.”

(Doc. No. 40 at 38). Michael also threatened to “whoop [B.J.’s] ass.” (Id.). B.J.

claimed he was turning to walk away from the altercation when he saw Michael

raise his right hand in a fist as if to strike B.J. B.J. quickly turned back around and

punched Michael one time in his lower left jaw, causing Michael to fall backwards

to the floor. Realizing that he had broken a finger and fearing an escalation of

events, B.J. immediately left the bar after the incident. Michael suffered serious

physical injury to his head, which required him to be hospitalized for a significant

period of time.

       {¶6} On June 1, 2012, the Hawks initiated this civil action against B.J. and

Larschied, seeking compensatory and punitive damages.            B.J. and Larschied

separately filed responses to the Hawks’ complaint. Both Larschied and B.J. pled

in their answers that B.J. punched Michael in self-defense.

       {¶7} On July 16, 2012, in case CV 2012 0572, CSU filed a complaint for a

declaratory judgment, requesting the trial court to determine pursuant to its policy

issued to Larschied what insurance coverage, if any, it owed to Larschied and B.J.

arising out of the Hawks’ lawsuit.




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      {¶8} The trial court subsequently granted a motion filed by CSU to

consolidate the two cases under the original case number assigned to the Hawks’

personal injury case, CV 2012 0448.

      {¶9} The case proceeded to the discovery phase and several depositions

were taken, including those of Michael, B.J., and other individuals present at

Harry’s Hide A Way that evening. Michael had no memory of his altercation with

B.J. B.J. maintained that he had acted in self-defense when he struck Michael, and

no other witness observed the interaction between the two men leading up to

Michael’s injury.

      {¶10} On July 3, 2013, CSU filed a motion for summary judgment arguing

that under the terms of its insurance agreement with Larschied it had no duty to

defend or indemnify Larschied or B.J. due to specific exclusions from coverage

stated in the agreement.   Larschied and the Hawks each filed memorandums

contra to CSU’s motion for summary judgment. CSU replied to each party’s

memorandum respectively.

      {¶11} On October 9, 2013, the trial court granted CSU’s motion for

summary judgment and determined that Michael’s injury was excluded from

coverage. Specifically, the trial court relied on two provisions in the insurance

agreement and found that reasonable minds could only conclude that the claim for




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Case No. 1-13-56


bodily injury arose from an actual battery and was expected or intended and was

therefore excluded from coverage under the policy. (Doc. No. 80 at 7).

      {¶12} The Hawks and Larschied each filed a notice of appeal, asserting the

following assignments of error.

              THE HAWK’S ASSIGNMENT OF ERROR NO. I

      THE TRIAL COURT ERRED WHEN IT DETERMINED
      THAT NO AMBIGUITY EXISTED IN THE CSU INSURANCE
      POLICY FOR “BODILY INJURY . . . EXPECTED OR
      INTENDED FROM THE STANDPOINT OF THE INSURED”
      AND CONCLUDED THE ASSAULT OR BATTERY
      EXCLUSION IN THE ENDORSEMENT SET FORTH IN
      FORM CSGA301 01 08 NEGATES CSU’S DUTY TO DEFEND
      OR INDEMNIFY FOR AN ASSAULT OR BATTERY.

             THE HAWK’S ASSIGNMENT OF ERROR NO. II

      THE TRIAL COURT ERRED WHEN IT FOUND “THAT
      REASONABLE MINDS COULD ONLY CONCLUDE THAT
      CLAIMS ARISING OUT OF BODILY INJURY THAT AROSE
      FROM ACTUAL BATTERY AND THAT WERE EXPECTED
      OR INTENDED ARE EXCLUDED FROM COVERAGE
      UNDER THE POLICY” AND GRANTED SUMMARY
      JUDGMENT TO CSU WHEN THE TOTALITY OF THE
      CIRCUMSTANCES AND EVIDENCE CONSIDERED UNDER
      CIV. R. 56 STANDARDS IN THE MOST FAVORABLE
      LIGHT OF THE PLAINTIFF AND THE INSURED
      REQUIRES THE MOTION BE DENIED.

             LARSCHIED’S 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 “CLEARLY MODIFIES THE
      POLICY TO EXCLUDE ANY CLAIM ARISING OUT OF

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Case No. 1-13-56


       BODILY INJURY EXPECTED OR INTENDED AND
       REMOVED THE SELF-DEFENSE EXCEPTION” AND
       CONCLUDED THAT THE ASSAULT OR BATTERY
       ENDORSEMENT NEGATED ANY DUTY OF THE
       CINCINNATI SPECIALTY UNDERWRITES INSURANCE
       COMPANY TO DEFEND OR INDEMNIFY THE
       DEFENDANT/APPELLANT IN THIS CASE.

             LARSCHIED’S ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT ERRED IN FINDING THAT THERE
       WAS NO AMBIGUITY IN THE LANGUAGE OF THE
       ASSAULT   OR   BATTERY    ENDORSEMENT   AND
       DETERMINED THAT THE SAME NEGATED ANY DUTY
       OF THE CINCINNATI SPECIALTY UNDERWRITERS
       INSURANCE COMPANY TO DEFEND OR INDEMNIFY
       THE DEFENDANT/APPELLANT IN THIS CASE.

             LARSCHIED’S ASSIGNMENT OF ERROR NO. III

       THE TRIAL COURT ERRED IN FINDING THAT THERE
       WERE NO ISSUES OF MATERIAL FACT AND
       THEREFORE   DETERMINED     THAT   CINCINNATI
       SPECIALTY UNDERWRITERS INSURANCE COMPANY
       WAS ENTITLED TO SUMMARY JUDGMENT AS A
       MATTER OF LAW.

       {¶13} Due to their interrelated nature and for ease of discussion, we elect to

discuss the assignments of error together.

       {¶14} The Hawks and Larschied argue that the trial court erred in

concluding that the insurance agreement between CSU and Larschied excluded

coverage for Michael’s injury. Specifically, The Hawks and Larschied maintain

that the trial court misconstrued certain provisions of the insurance agreement in



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determining that no coverage existed in granting CSU’s motion for summary

judgment.

        {¶15} Before we address the specific arguments raised on appeal, it is

necessary to discuss the particular provisions of the insurance agreement at issue.

        {¶16} The “Commercial General Liability Coverage Form,” also referred to

as the “Policy,” consists of sixteen pages and explains the duties CSU owes to its

insured. Section I of the Policy entitled “Coverage A-Bodily Injury And Property

Damage Liability” sets forth the following exclusion from coverage, together with

a single exception to the exclusion.

        2. Exclusions
        This insurance does not apply to:

        (a) Expected Or Intended Injury
        “Bodily injury” or “property damage” expected or intended
        from the standpoint of the insured. This exclusion does not
        apply to bodily injury resulting from the use of reasonable force
        to protect persons or property.1

(Policy at 2). (Emphasis added.)

The Policy defines “an Insured” in the following manner.

        SECTION II-WHO IS AN INSURED

        1.     If you are designated in the Declarations as:




1
  The Policy states that “ ‘Bodily Injury’ means bodily injury, sickness, or disease sustained by a person,
including death resulting from any of these at any time.” (Policy at 13).


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Case No. 1-13-56


           (a) An individual, you and your spouse are insured, but
           only with respect to the conduct of a business of which you
           are the sole owner.2

           ***

           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,”
           other than either your “executive officers” (if you are an
           organization other than a partnership, joint venture or
           limited liability company) or your managers (if you are a
           limited liability company), but only for acts within the scope
           of their employment by you or while performing duties
           related to the conduct of your business * * *.3

(Id. at 9). Also included as appendices to the Policy are over forty pages of

“endorsements” that purport to add new provisions as well as modify, delete, and

replace provisions of the original sixteen-page Policy. The “endorsement” at issue

in this case, referred to as the “Assault or Battery Endorsement,” provides as

follows:


2
    The Declarations page of the Policy identifies Larschied as an “Individual” form of business.
3
  The Policy states that a “ ‘Volunteer Worker’ means a person who is not your ‘employee,’ and who
donates his or her work and acts at the direction of and within the scope of duties determined by you, and is
not paid a fee, salary or other compensation by you or anyone else for their work performed for you.” (Id.
at 15).

An “ ‘Employee’ includes a ‘leased worker.’ ‘Employee’ does not include a ‘temporary worker.’ ” (Id. at
13).

A “ ‘Leased worker’ means a person leased to you by a labor leasing firm under an agreement between you
and the labor leasing firm, to perform duties related to the conduct of your business. ‘Leased worker does
not include ‘temporary worker.’ ” (Id. at 14).

A “ ‘Temporary worker’ means a person who is furnished by you to substitute for a permanent ‘employee’
on leave or to meet seasonal or short-term workload conditions.” (Id. at 15).

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Case No. 1-13-56


                   EXCLUSION—ASSAULT OR BATTERY

      This endorsement modifies insurance provided under the
      following:

      COMMERICAL GENERAL LIABLITY COVERAGE FORM

      A. The following exclusion is added to Paragraph 2.,
      Exclusions of Section I-Coverage A-Bodily Injury And Property
      Damage and Paragraph 2., Exclusions of Section I-Coverage B-
      Personal And Advertising Injury Liability:

      (a) This insurance 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 and any other person;

      (2) The failure of any insured or anyone else for whom any
      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 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.

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Case No. 1-13-56



       B. For the purpose of this endorsement the words assault and
       battery are intended to include, but are not limited to, sexual
       assault.

       C. Exclusion, 2.a. of the Commercial General Liability
       Coverage Form is deleted in its entirety and replaced by the
       following:

       2. a. Expected Or Intended Injury
       “Bodily injury” or “property damage” expected or intended
       from the standpoint of the insured.

(Form CSGA301 01 08).

       {¶17} Notably not included in the replacement language of Section C. 2.a.

above is the second sentence from Paragraph 2.a. of the original Policy set forth

earlier, which stated: “This exclusion does not apply to ‘bodily injury’ resulting

from the use of reasonable force to protect persons or property.” (Policy at 2).

       {¶18} In its judgment entry granting CSU’s motion for summary judgment

the trial court noted the parties did not dispute the fact that B.J. intentionally hit

Michael, examined the language of the provisions quoted above, and reached the

following conclusions:

       The endorsement in [CSU’s] policy unambiguously stated that
       the insurance did not apply to “bodily injury” arising out of an
       actual or threatened assault or battery. The endorsement also
       unambiguously provided the “Exclusion 2.a. of the Commercial
       General Liability Coverage Form is deleted in its entirety and
       replaced…” By its clear terms, the endorsement provided that
       the insurance did not apply to “bodily injury” arising out of an
       actual or threatened assault or battery expected or intended from
       the standpoint of the insured. [CSU] pointed to evidence that

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Case No. 1-13-56


       [B.J.] intentionally hit [Michael] and there is no evidence that
       creates a genuine issue of fact as to whether [B.J.] actually
       battered [Michael].

       The assault-and-battery exclusion in the endorsement obviated
       any duty on the part of the insurer to defend against or to cover
       any damages that arose from an altercation at Harry’s Hide A
       Way.

       ***

       Under the clear language of the policy’s endorsement exclusions,
       [CSU] did not have a duty to cover or defend against suits to
       which the insurance did not apply, and it follows that [CSU] is
       entitled to summary judgment in its favor. There is only one
       reasonable interpretation. The endorsement in [CSU’s] policy
       unambiguously stated that the insurance did not apply to
       [Michael’s] alleged bodily injury that arose from the undisputed
       actual battery. While the first 2.a. exclusion found in the main
       body of the insurance policy did not apply to bodily injury
       resulting from the use of reasonable force to protect persons or
       property (self-defense) the endorsement clearly modifies the
       policy to exclude any claim arising out of the bodily injury
       expected or intended and removed the self-defense exception.
       The endorsement specifically notified the insured that the
       endorsement form changed the policy. The Court finds that
       reasonable minds could only conclude that claims arising out of
       bodily injury that arose from actual battery and that were
       expected or intended are excluded from coverage under the
       policy. There is no ambiguity. Absent an ambiguity, the words
       of the policy must be given their plan [sic] and ordinary
       meaning.

(Doc. No. 80 at 6-7) (Internal citations omitted) (Emphasis sic).

       {¶19} This Court reviews a grant of summary judgment de novo, without

any deference to the trial court.     Conley–Slowinski v. Superior Spinning &

Stamping Co., 128 Ohio App.3d 360, 363, (1998). A grant of summary judgment

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Case No. 1-13-56


will be affirmed only when the requirements of Civ.R. 56(C) are met. This

requires the moving party to establish: (1) that there are no genuine issues of

material fact, (2) that the moving party is entitled to judgment as a matter of law,

and (3) that reasonable minds can come to but one conclusion and that conclusion

is adverse to the non-moving party, said party being entitled to have the evidence

construed most strongly in his favor. Civ.R. 56(C); see Horton v. Harwick Chem.

Corp., 73 Ohio St.3d 679, 1995–Ohio–286, paragraph three of the syllabus.

       {¶20} The party moving for summary judgment bears the initial burden of

identifying the basis for its motion in order to allow the opposing party a

“meaningful opportunity to respond.” Mitseff v. Wheeler, 38 Ohio St.3d 112,

syllabus (1988). The moving party also bears the burden of demonstrating the

absence of a genuine issue of material fact as to an essential element of the case.

Dresher v. Burt, 75 Ohio St.3d 280, 292, 1996–Ohio–107. Once the moving party

demonstrates that he is entitled to summary judgment, the burden shifts to the non-

moving party to produce evidence on any issue which that party bears the burden

of production at trial. See Civ.R. 56(E).

       {¶21} An insurance policy is a contract and the relationship between the

insurer and the insured is purely contractual in nature. Nationwide Mut. Ins. Co. v.

Marsh, 15 Ohio St.3d 107, 109 (1984). The interpretation and construction of

insurance policies is a matter of law to be determined by the court using rules of


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Case No. 1-13-56


construction and interpretation applicable to contracts generally. Gomolka v. State

Auto. Mut. Ins. Co., 70 Ohio St.2d 166, 167–168 (1982). In insurance policies, as

in other contracts, words and phrases are to be given their plain and ordinary

meaning unless there is something in the contract which would indicate a contrary

intention.   Olmstead v. Lumbermen’s Mut. Ins. Co., 22 Ohio St.2d 212, 216

(1970). Where the provisions of an insurance policy are clear and unambiguous,

courts may not indulge themselves in enlarging the contract by implication in

order to embrace an object distinct from that contemplated by the parties.

Nationwide Ins. Co. v. Tobler, 80 Ohio App.3d 560, 564 (12th Dist.1992).

However, where the provisions of a contract of insurance are reasonably

susceptible of more than one interpretation, they will be construed strictly against

the insurer and liberally in favor of the insured. King v. Nationwide Ins. Co., 35

Ohio St.3d 208 (1988), paragraph one of the syllabus.

       {¶22} On appeal, the Hawks and Larschied argue that the trial court erred

in determining that no ambiguity existed between the terms of the original Policy

exclusion for an “expected or intended injury” with the “self-defense exception”

and the subsequently added “Assault or Battery Endorsement.” They also contend

that the trial court erred in concluding that the “Assault or Battery Endorsement”

clearly negated any duty on CSU’s part to defend or indemnify B.J. and/or

Larschied. Specifically, the Hawks and Larschied assert that the trial court erred


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Case No. 1-13-56


in concluding as a matter of law that B.J. committed a “battery” against Michael

despite the evidence to support B.J.’s claim that he acted in self-defense.

       {¶23} For its part, CSU argues that the trial court correctly determined that

the “Assault or Battery Endorsement” modified the Policy: (1) by adding an

exclusion for a bodily injury arising out of an actual or threatened assault or

battery; and (2) by deleting the “self-defense exception” from the original

“expected or intended injury” exclusion in the Policy. CSU maintains that under

the terms of the “Assault or Battery Endorsement,” the Policy it issued to

Larschied “assumes that CSU will accept liability for ordinary negligence on the

tavern premises (not connected with an assault or battery) but not for bar fights,

i.e., assaults or batteries on those same premises.” (Answer Brief to the Hawks’

Appellate Brief at 12). At oral argument, attorneys for CSU maintained that other

than possibly a slip and fall situation, this “bar-owners” Policy is not intended to

cover injuries arising from any form of human interaction in the bar. Thus, CSU

contends that the trial court properly concluded that the Policy excludes coverage

of Michael’s injury due to the fact that the injury was sustained as a result of an

assault and/or battery despite B.J.’s claim that he hit Michael in self-defense.

       {¶24} At the outset, we note that this Policy was apparently sold to the bar

owner in its present form and thus did not involve a situation where an existing

policy owned by the bar owner was subsequently amended with this endorsement.


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Clearly, if CSU wanted to delete a significant provision of coverage from the

original Policy, it could have simply removed that language from the original

Policy prior to selling it to this bar owner. Instead, CSU chose to leave intact the

original exception to the exclusion and add on an endorsement, among forty pages

of other endorsements, which in a rather complicated and cumbersome way, added

language, modified language, and deleted language in order to eliminate the

coverage provision (the exception to the exclusion) still set forth in the original

Policy. As such, we have some concern as to whether this manner of “deleting” a

category of coverage involving the reasonable use of force in self-defense, which

might clearly be significant to a bar owner purchasing such insurance, does not

itself create unnecessary confusion, if not inherent ambiguity in this Policy, at

least when sold to a new customer in this form. Nevertheless, for the reasons

below, it is not necessary for us to address further or rely upon this concern in any

way in reaching our decision.

       {¶25} The construction of the Policy language advanced by CSU and relied

upon by the trial court is founded upon the premise that any intentional act of

force herein constitutes an “assault” and/or “battery” under the law. However, this

premise erroneously blurs the critical distinction between an “intentional act”—a

mere factual description of one’s conduct, and an “assault” and/or “battery”—

terms which denote a conclusion of law pertaining to conduct determined to be


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Case No. 1-13-56


wrongful, i.e., an “intentional tort.” This distinction also carries a significant

impact upon the proper construction of the Policy language of the endorsement in

this case pertaining to “bodily injury * * * expected or intended from the

standpoint of the insured.”

       {¶26} This distinction has been explicitly recognized by the Supreme Court

of Ohio in a decision directly relevant to the case before us. In Preferred Mutual

Ins. Co. v. Thompson, 23 Ohio St.3d 78 (1986), the Court addressed the issue of

whether an insurance company could refuse to defend an insured against

intentional tort claims of a third party when the insured claimed he injured the

third party while acting in self-defense. The insurance company in Thompson

argued that the third party’s injury was excluded under a provision in the

insurance agreement that precluded coverage for “bodily injury * * * which is

either expected or intended from the standpoint of the insured.” Thompson at 79.

Notably, this language is identical to the “expected or intended injury” exclusion

included in CSU’s insurance agreement with Larschied.

       {¶27} The Court in Thompson concluded that “neither the purpose behind

the exclusion nor public policy is served by application of the exclusion to an

insured who claims to have acted in self-defense.” Id. at 81. Specifically, the

Supreme Court reasoned that:

       Generally, an individual may not purchase liability insurance
       coverage against a claim arising from his intentional infliction of

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Case No. 1-13-56


      injury upon the person or property of another. Allowing the
      purchase of such coverage would remove an important
      disincentive to the commission of intentional torts—the resultant
      threat, through civil damage claims, to the tortfeasor’s personal
      assets. No purpose is served, however, by denying coverage to
      an insured who, while acting in self-defense, intentionally injures
      another. The insured who acts in self-defense does so only as a
      reaction to his attacker, and any injuries suffered by the attacker
      are not the result of the insured’s misconduct. [Emphasis sic].

      From the standpoint of an insurance company, an “expected or
      intended injury” exclusion prevents individuals from purchasing
      insurance as a shield for their anticipated intentional misconduct.
      [Emphasis sic]. Without such an exclusion, an insurance
      company’s risk would be incalculable. An act of self-defense,
      however, is neither anticipated nor wrongful from the standpoint
      of the insured. [Emphasis added]. The risk that an insurance
      company bears in providing an intentional tort defense for an
      insured who claims to have acted in self-defense is calculable
      and, from a monetary standpoint, minimal.

      ***

      When an insured admits that he intentionally injured a third
      party and the surrounding circumstances indicate that he acted
      in self-defense in causing the injury, the insured’s insurance
      company may not refuse to defend the insured from the third
      party’s intentional tort claim on the grounds that the third
      party’s injuries fall within an exclusion from coverage for
      “bodily injury * * * which is either expected or intended from
      the standpoint of the [i]nsured.”

Thompson, 23 Ohio St.2d 78, 81-82.

      {¶28} While the Court in Thompson only addressed an insured’s claim of

self-defense with respect to an “expected or intended injury,” the Court’s analysis

is equally instructive in determining whether an insured’s claim of self-defense is


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Case No. 1-13-56


excluded under the “Assault or Battery Endorsement” at issue in this case. First,

we note that there is a genuine issue of material fact as to whether B.J. is an

“insured” under the Policy. Based upon the depositions submitted in this case, it is

unclear whether B.J. was an employee acting within the scope of his employment

or performing duties related to the conduct of Larschied’s business at the time

Michael’s injuries occurred. (See Policy at 9).

       {¶29} Second, CSU’s Policy does not define the terms “assault” and

“battery” used in the endorsement. Therefore, the terms must be given their plain

and ordinary meaning. The terms “assault” and “battery” carry a specific legal

connotation pertaining to conduct constituting intentional torts meaning that a

wrongful threat or a wrongful use of force has occurred. Accordingly, if B.J. is

determined to have acted in self-defense when he intentionally punched Michael,

then B.J.’s use of force was not wrongful under the law, did not constitute a

“battery,” and Michael’s injury did not arise from “an actual battery” as the trial

court found in its judgment entry.

       {¶30} We note that CSU argues in its brief that it is inconsequential

whether B.J. is deemed to have actually committed a battery against Michael

because Michael “assaulted” B.J. prior to B.J. punching him, and the “Assault or

Battery Endorsement” excludes any “bodily injury * * * arising out of an actual or

threatened assault.” However, CSU’s argument does not account for the fact that


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Michael’s conduct provoking B.J.’s use of force does not have to rise to the level

of an “assault”—and, in fact, there is no legal requirement that it do so—in order

for B.J. to be entitled to act in self-defense. All that is required is that B.J. was not

at fault in creating the situation giving rise to the affray and that B.J. had

reasonable grounds to believe, even if mistaken, that he was in imminent danger of

bodily harm. See 2 OJI-CR 421.21.

       {¶31} Thus, for purposes of B.J.’s claim of self-defense, it is not necessary

for a trier of fact to first determine if Michael actually committed an “assault”

before deciding whether B.J. had a legitimate reason to believe he was threatened

with bodily harm. Furthermore, even if it were determined that Michael’s actions

amounted to an “assault,” Michael’s actual injury did not arise from his own

conduct toward B.J., but from B.J.’s unanticipated reaction to Michael’s conduct.

       {¶32} Based upon the foregoing, we conclude that there remain genuine

issues of material fact in this case which render a grant of summary judgment

inappropriate.    Specifically, it is not clear from the record whether B.J.’s

employment status at the time of the altercation brought him under the purview of

the insurance agreement as an “insured” therefore triggering the Thompson

analysis. Moreover, if B.J. is considered to be an “insured” under the Policy, there

still remains an issue of fact as to whether B.J.’s use of force against Michael was

a legitimate act of self-defense.


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       {¶33} For the reasons stated above, we find that the trial court erred when it

determined that CSU was entitled to summary judgment as a matter of law.

Accordingly, the five assignments of error as they pertain to the trial court’s grant

of summary judgment are sustained. The judgment of the trial court is reversed

and the cause remanded for further proceedings consistent with this opinion.

                                                           Judgment Reversed and
                                                                Cause Remanded

ROGERS and PRESTON, J.J., concur.

/jlr




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