[Cite as Hoyle v. DTJ Ents., Inc., 2013-Ohio-3223.]


STATE OF OHIO                     )                        IN THE COURT OF APPEALS
                                  )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

DUANE ALLEN HOYLE                                          C.A. No.   26579
                                                                      26587
        Appellant
                                                           APPEAL FROM JUDGMENT
        v.                                                 ENTERED IN THE
                                                           COURT OF COMMON PLEAS
DTJ ENTERPRISES, INC.                                      COUNTY OF SUMMIT, OHIO
                                                           CASE No.   CV 2010-03-1984
        Cross-Appellants

and

THE CINCINNATI INSURANCE
COMPANIES

        Appellee/Cross-Appellee


                                 DECISION AND JOURNAL ENTRY

Dated: July 24, 2013



        MOORE, Presiding Judge.

        {¶1} Plaintiff, Duane Hoyle, appeals from the ruling of the Summit County Court of

Common Pleas, which granted summary judgment to The Cincinnati Insurance Companies

(“Cincinnati Insurance”). Defendants DTJ Enterprises, Inc. (“DTJ”) and Cavanaugh Building

Corporation (“Cavanaugh”), cross-appeal. For the reasons set forth below, we reverse.

                                                      I.

        {¶2} In 2008, Mr. Hoyle was injured when he fell approximately thirteen feet from a

scaffold while employed by DTJ and Cavanaugh. Mr. Hoyle brought a complaint against DTJ

and Cavanaugh, alleging a workplace intentional tort. DTJ and Cavanaugh were insured by
                                                  2


Cincinnati Insurance.   Cincinnati Insurance intervened in the action, seeking a declaratory

judgment that it was not required to provide coverage to DTJ and Cavanaugh based upon certain

exclusions contained in the insurance contract.

       {¶3} DTJ and Cavanaugh filed a motion for summary judgment.                    Thereafter,

Cincinnati Insurance filed motion for summary judgment, wherein it maintained that, although it

had agreed to defend DTJ and Cavanaugh, the insurance contract excluded coverage for Mr.

Hoyle’s claims, and it had no duty to indemnify DTJ and Cavanaugh. The trial court granted

DTJ and Cavanaugh’s motion for summary judgment in part, concluding that a material question

of fact remained only as to Mr. Hoyle’s claim that his injuries were caused by DTJ and

Cavanaugh removing a safety guard.        The trial court later granted summary judgment to

Cincinnati Insurance, concluding that Mr. Hoyle would have to demonstrate “deliberate intent”

of DTJ or Cavanaugh to cause him injury in order to prevail on his claim. The trial court

determined that the insurance contract excluded from coverage damages caused by “deliberate

intent” of the insured to injure, and thus, Cincinnati Insurance was not required to indemnify

DTJ or Cavanaugh for any potential resulting judgment against them. The trial court set forth in

its entry that there was no just reason for delay. See Civ.R. 54(B). Mr. Hoyle timely appealed

from the judgment of the trial court, and now presents one assignment of error for our review.

DTJ and Cavanaugh cross-appealed, and they also present one assignment of error for our

review. We have consolidated the assignments of error to facilitate our discussion.

                                                  II.

                         MR. HOYLE’S ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED WHEN IT GRANTED CINCINNATI
       INSURANCE[’S] MOTION FOR SUMMARY JUDGMENT.
                                                3


                 DTJ’S AND CAVANAUGH’S ASSIGNMENT OF ERROR

        THE TRIAL COURT ERRED WHEN IT GRANTED CINCINNATI
        INSURANCE[’S] MOTION FOR SUMMARY JUDGMENT.

        {¶4} In their assignments of error, Mr. Hoyle, DTJ and Cavanaugh argue that the trial

court erred in granting Cincinnati Insurance’s motion for summary judgment. We agree.

        {¶5} This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). Pursuant to Civ.R. 56(C), summary judgment is

proper if:

        (1) No genuine issue as to any material fact remains to be litigated; (2) the
        moving party is entitled to judgment as a matter of law; and (3) it appears from
        the evidence that reasonable minds can come to but one conclusion, and viewing
        such evidence most strongly in favor of the party against whom the motion for
        summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

        {¶6} Here, Mr. Hoyle, DTJ, and Cavanaugh argue that Cincinnati Insurance was not

entitled to judgment as a matter of law, because the trial court erred in its interpretation of the

law concerning workplace intentional torts and in its application of the law to the insurance

contract.

        {¶7} In the insurance contract at issue, Cincinnati Insurance provided general

commercial liability coverage to DTJ and Cavanaugh for “those sums that the insured becomes

legally obligated to pay as damages because of ‘bodily injury’ * * * to which this insurance

applies.” The general commercial liability policy expressly excluded from coverage bodily

injury “which may reasonably be expected to result from the intentional * * * acts of the insured

or which is in fact expected or intended by the insured, even if the injury or damage is of a

different degree or type than actually expected or intended.”
                                                 4


       {¶8} However, the insurance contract also contained an endorsement for “Employers

Liability Coverage.” Therein, Cincinnati Insurance provided coverage for certain “intentional

act[s],” as follows:

       [Cincinnati Insurance] will pay those sums that an insured becomes legally
       obligated to pay as damages because of “bodily injury” sustained by your
       “employee” in the “workplace” and caused by an “intentional act” to which this
       insurance applies. We will have the right and duty to defend any “suit” seeking
       those damages.

The policy defined an “intentional act” as “an act which is substantially certain to cause ‘bodily

injury,’” and required the following conditions be met for purposes of coverage:

       a. An insured knows of the existence of a dangerous process, procedure,
       instrumentality or condition within its business operation;

       b. An insured knows that if an “employee” is subjected by his employment to
       such dangerous process, procedure, instrumentality or condition, then harm to the
       “employee” will be a substantial certainty; and

       c. An insured under such circumstances and with such knowledge, does act to
       require the “employee” to continue to perform the dangerous task.

However, the policy excluded from coverage “liability for acts committed by or at the direction

of an insured with the deliberate intent to injure[.]” (Emphasis added.)

       {¶9} Based upon the exclusion for acts committed with the deliberate intent to injure,

Cincinnati Insurance argued that any potentially successful claim by Mr. Hoyle would

necessarily be excluded from the insurance coverage, because Mr. Hoyle would have to establish

deliberate intent in order to recover for a workplace intentional tort pursuant to R.C. 2745.01.1

       {¶10} R.C. 2745.01 provides, in relevant part:



       1
           Cincinnati Insurance further urged the trial court to grant it, at minimum, partial
summary judgment as to its policy exclusion for punitive damages. As the trial court granted
summary judgment on the basis that Cincinnati Insurance had no duty to provide coverage, the
trial court did not address the argument as to coverage for punitive damages.
                                                 5


       (A) In an action brought against an employer by an employee, or by the
       dependent survivors of a deceased employee, for damages resulting from an
       intentional tort committed by the employer during the course of employment, the
       employer shall not be liable unless the plaintiff proves that the employer
       committed the tortious act with the intent to injure another or with the belief that
       the injury was substantially certain to occur.

       (B) As used in this section, “substantially certain” means that an employer acts
       with deliberate intent to cause an employee to suffer an injury, a disease, a
       condition, or death.

       (C) Deliberate removal by an employer of an equipment safety guard or deliberate
       misrepresentation of a toxic or hazardous substance creates a rebuttable
       presumption that the removal or misrepresentation was committed with intent to
       injure another if an injury or an occupational disease or condition occurs as a
       direct result.

(Emphasis added.)

       {¶11} Here, Mr. Hoyle’s only remaining claim is based upon his allegation that DTJ and

Cavanaugh deliberately removed a safety guard, and, pursuant to R.C. 2745.01(C) their “intent to

injure” is presumed. Through this method of proving the claim, Mr. Hoyle, DTJ, and Cavanaugh

argue that DTJ and Cavanaugh could be held liable for Mr. Hoyle’s injury without proof of

deliberate intent to cause injury. Cincinnati Insurance responds that “intent to injure” and

“substantially certain” to cause injury, as those phrases are used in R.C. 2745.01, both require the

plaintiff to establish deliberate intent.   Cincinnati Insurance maintains that the rebuttable

presumption in subsection (C) of intent to injure demonstrates “deliberate intent,” and, thus, if

Mr. Hoyle were successful in his claim through use of the presumption, his claim would be

excluded under the policy.

       {¶12} Prior to the enactment of current R.C. 2745.01, to prove “intent” for purposes of

an employer intentional tort, the employee was required to establish:

       (1) knowledge by the employer of the existence of a dangerous process,
       procedure, instrumentality or condition within its business operation; (2)
       knowledge by the employer that if the employee is subjected by his employment
                                                6


       to such dangerous process, procedure, instrumentality or condition, then harm to
       the employee will be a substantial certainty; and (3) that the employer, under such
       circumstances, and with such knowledge, did act to require the employee to
       continue to perform the dangerous task.

Fyffe v. Jeno’s, Inc., 59 Ohio St.3d 115 (1991), paragraph one of the syllabus. The Ohio

Supreme Court further explained in Jones v. VIP Dev. Co. 15 Ohio St.3d 90 (1984), paragraph

one of the syllabus, that “[a]n intentional tort is an act committed with the intent to injure

another, or committed with the belief that such injury is substantially certain to occur.”

Thereafter, the General Assembly enacted several statutes to govern employer-intentional torts,

and these statutes were held unconstitutional by the Ohio Supreme Court prior to the enactment

of the current R.C. 2745.01. Kaminiski v. Metal & Wire Prods. Co. (Kaminski II), 125 Ohio

St.3d 250, 2010-Ohio-1027, ¶ 28-33. At first glance, R.C. 2745.01(A) appears to retain the

Jones standard for proving intent, as the statute provides that “the employer shall not be liable

unless the plaintiff proves that the employer committed the tortious act with the intent to injure

another or with the belief that the injury was substantially certain to occur.” However, in R.C.

2745.01(B), “substantially certain” is defined as requiring that “an employer acts with deliberate

intent to cause an employee to suffer an injury, a disease, a condition, or death.” (Emphasis

added.) In Kaminski v. Metal & Wire Prods. Co. (Kaminski I), 175 Ohio App.3d 227, 2008-

Ohio-1521, ¶ 31, (7th Dist.), the Seventh District reviewed subsections (A) and (B):

       When we consider the definition of “substantial certainty,” it becomes apparent
       that an employee does not have two ways to prove an intentional tort claim as
       R.C. 2745.01(A) suggests. The employee’s two options of proof become: (1) the
       employer acted with intent to injure or (2) the employer acted with deliberate
       intent to injure. Thus, under R.C. 2745.01, the only way an employee can recover
       is if the employer acted with the intent to cause injury.

(Emphasis added.)
                                                7


       {¶13} Kaminski I was appealed to the Ohio Supreme Court, which agreed with the

Seventh District’s interpretation of R.C. 2745.01(A) and (B) in this respect:

       As an initial matter, we agree with the court of appeals that the General
       Assembly’s intent in enacting R.C. 2745.01, as expressed particularly in
       2745.01(B), is to permit recovery for employer intentional torts only when an
       employer acts with specific intent to cause an injury, subject to subsections (C)
       and (D). See Talik v. Fed. Marine Terminals, Inc., 117 Ohio St.3d 496, 2008-
       Ohio-937, ¶ 17 (the General Assembly in R.C. 2745.01 “modified the common-
       law definition of an employer intentional tort” by rejecting “the notion that acting
       with a belief that injury is substantially certain to occur is analogous to wanton
       misconduct”). See also Stetter [v. R.J. Corman Derailment Servs., L.L.C.], 125
       Ohio St.3d 280, 2010-Ohio-1029, at paragraph three of the syllabus, in which we
       hold that R.C. 2745.01 does not eliminate the common-law cause of action for an
       employer intentional tort.

Kaminski II at ¶ 56; see also Houdek v. ThyssenKrupp Materials N.A., Inc., 134 Ohio St.3d 491,

2012-Ohio-5685, ¶ 3.

       {¶14} Recently, in Houdek, the Ohio Supreme Court again reviewed the issue of intent

in the context of workplace intentional torts. In Houdek, an employee was injured when a co-

worker, who was operating a sideloader, struck him. Id. at ¶ 1, 8. The employee brought suit,

and the trial court granted summary judgment to the employer. Id. at ¶ 9. The employee

appealed, and the Eighth District reversed, determining that the employer could be held liable for

the employee’s injuries if it “objectively believed the injury to Houdek was substantially certain

to occur.” Id. at ¶ 3. The employer appealed this decision to the Supreme Court, which reversed

the holding of the Eighth District. Id. at ¶ 29. Because there was no evidence that the employer

“deliberately intended to injure” the employee, the Supreme Court concluded that it could not be

liable for a workplace intentional tort. Id. at ¶ 4. The Court noted that R.C. 2745.01(C) was not

applicable to the facts of that case. Id. at ¶ 27. It held that “R.C. 2745.01 limits claims against

employers for intentional torts to circumstances demonstrating a deliberate intent to cause injury

to an employee[.]” (Emphasis added.) Id. at ¶ 29.
                                                 8


        {¶15} In a dissenting opinion, Justice Pfeifer concluded that “[t]he majority[

]overstate[d] the ruthlessness of R.C. 2745.01” because subsection (C), provides a presumption

of an intent to injure in certain circumstances. Id. at ¶ 30 (Pfeifer, J. dissenting). Therefore, in

such a case:

        Only the removal of the safety equipment needs to be deliberate under the statute;
        if the injury flows from the removal of safety equipment, an injured worker needs
        to prove nothing further as to the employer’s intent to successfully prosecute an
        intentional-tort claim against the employer. The worker need not prove that the
        employer was trying to hurt him—intent is presumed by the removal of safety
        equipment. That is, the safety equipment must be deliberately removed but the
        injury need not be deliberately caused for an injured worker to recover pursuant to
        R.C. 2745.01(C).

Id. (Pfeifer, J. dissenting).

        {¶16} Pursuant to the Ohio Supreme Court’s decisions above, R.C. 2945.01 requires

specific or deliberate intent to cause injury to recover on an employer intentional tort. Houdek at

¶ 29. However, “[t]he specific-intent requirement is moderated * * * by subsection C of Ohio

Revised Code § 2745.01, which sets up a rebuttable presumption of intent to injure when the

employer deliberately removes an equipment safety guard or deliberately misrepresents a toxic

or hazardous substance.” Rudisill v. Ford Motor Co., 709 F.3d 595, 603 (6th Cir.2013); Houdek

at ¶ 30 (Pfeifer, J. dissenting).

        {¶17} Here, Mr. Hoyle’s only remaining claim rests upon operation of the presumption

located in R.C. 2745.01(C). Therefore, unlike Houdek, our inquiry pertains to whether, if

deliberate intent were to be presumed by operation of subsection (C), the claim would be

excluded from coverage under the Employer Liability policy for actions taken with the

“deliberate intent” intent to injure.

        {¶18} The Fourth District has explained the effect of presumptions as follows:
                                               9


       A presumption shifts the evidentiary burden of producing evidence, i.e., the
       burden of going forward, to the party against whom the presumption is directed.
       See Weissenberger, Ohio Evidence (2001) 44.              However, a rebuttable
       presumption does not carry forward as evidence once the opposing party has
       rebutted the presumed fact. Forbes v. Midwest Air Charter, Inc., 86 Ohio St.3d
       83, 86, 1999-Ohio-85. Thus, once the presumption is met with sufficient
       countervailing evidence, it fails and serves no further evidentiary purpose. The
       case then proceeds as if the presumption had never arisen. See Horsley v.
       Essman, 145 Ohio App.3d 438, 444 (4th Dist. 2001); Ellis v. Miller, Fourth Dist.
       Gallia No. 00CA17, 2001 WL 978868 (Aug. 16, 2001).

Hall v. Kemper Ins. Cos., 4th Dist. Pickaway No. 02CA17, 2003-Ohio-5457, ¶ 92, quoting

Minor v. Nichols, Fourth Dist. Jackson No. 01CA14, 2002-Ohio-3310, ¶ 14.

       {¶19} Here, the trial court concluded that a question of fact existed as to whether Mr.

Hoyle could prevail on his claim through the presumption of intent to injure contained in R.C.

2745.01(C). To do so, Mr. Hoyle would need to only prove the deliberate removal of a safety

guard. The burden of proof would then shift to DTJ and Cavanaugh to rebut the presumption.

Hall at ¶ 92. If DTJ and Cavanaugh failed to do so, Mr. Hoyle could prevail on his claim

without actual proof of deliberate intent to injure. Although the deliberate intent to injure may

be presumed for purposes of the statute where there is a deliberate removal of a safety guard, we

conclude that this does not in itself amount to “deliberate intent” for the purposes of the

insurance exclusion.

       {¶20} In Cincinnati Equitable Ins. Co. v. Sorrell, 9th Dist. Lorain No. 05CA008703,

2006-Ohio-1906, ¶ 14, this Court explained:

       The interpretation of an insurance contract is a matter of law. Nationwide Mut.
       Fire Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d 107, 108 (1995). When this
       Court interprets an insurance contract, we “look to the plain and ordinary meaning
       of the language used in the policy unless another meaning is clearly apparent from
       the contents of the policy.” Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216,
       2003-Ohio-5849, ¶ 11. A contract for insurance “must be given a fair and
       reasonable interpretation to cover the risks anticipated by the parties.” Boxler v.
       Allstate Ins. Co., 9th Dist. Summit No. 14752, 1991 WL 24960, *7 (Feb. 27,
       1991). Furthermore, “[w]hen the intent of the parties is evident from the clear and
                                                 10


       unambiguous language in the provision, the plain language of the provision must
       be applied.” Rybacki v. Allstate Ins. Co., 9th Dist. Medina No. 03CA0079-M,
       2004-Ohio-2116, at ¶ 9, citing Karabin v. State Auto. Mut. Ins. Co., 10 Ohio St.3d
       163 (1984).

       {¶21} The Employer Liability policy at issue here provides coverage for “bodily injury”

caused by an “intentional act,” which it defines as one where the insured (1) knows of the

existence of a dangerous condition within its business operation, (2) knows that if an employee is

subjected to the dangerous condition, then harm to the employee will be a “substantial certainty,”

and (3) requires “the ‘employee’ to continue to perform the dangerous task.” The policy

excluded from coverage “liability for acts committed by or at the direction of an insured with the

deliberate intent to injure[.]” Therefore, we cannot conclude that an “intentional act” under the

policy, which is specifically covered as set forth above, includes an act committed with a

“deliberate intent” to injure, which is specifically excluded. Based upon the presumption of

deliberate intent under R.C. 2745.01(C), there could exist a circumstance where an employee

prevails on his claim of intentional tort without the complained action constituting “deliberate

intent” to injure under the terms of the policy. As the trial court determined that questions of fact

existed as to the viability of claim under subsection (C), we conclude that there likewise exists a

question of fact as to whether such a claim falls within the policy exclusion, precluding summary

judgment on the issue of coverage.

                                                      III.

       {¶22} Mr. Hoyle’s, DTJ’s and Cavanaugh’s assignments of error are sustained. The

judgment of the Summit County Court of Common Pleas is reversed, and this cause is remanded

for further proceedings consistent with this opinion.

                                                                                Judgment reversed,
                                                                               and cause remanded.
                                                11




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee/Cross-Appellee.




                                                     CARLA MOORE
                                                     FOR THE COURT



CARR, J.
CONCURS.

HENSAL, J.
DISSENTING.

       {¶23} I respectfully dissent. The Ohio Supreme Court has held that, under Revised

Code Section 2745.01, “absent a deliberate intent to injure another, an employer is not liable for

a claim alleging an employer intentional tort, and the injured employee’s exclusive remedy is

within the workers’ compensation system.” Houdek v. ThyssenKrupp Materials N.A., Inc., 134

Ohio St.3d 491, 2012-Ohio-5685, ¶ 25. The policy at issue in this case specifically excludes
                                                 12


coverage for “acts committed * * * with the deliberate intent to injure[.]” In light of the other

provisions of the contract that specifically mirror the state of the law at the time it was created, I

would find that the parties intended for the term “deliberate intent” to have the same meaning

under the contract as under Section 2745.01. Accordingly, I do not agree that “there could exist

a circumstance where an employee prevails on his claim of intentional tort without the

complained action constituting ‘deliberate intent’ to injure under the terms of the policy.” As

such, I would find that the trial court correctly granted summary judgment to Cincinnati

Insurance.


APPEARANCES:

DAVID R. GRANT and STEPHEN S. VANECK, Attorneys at Law, for Appellant.

STEPHEN J. CHUPARKOFF, Attorney at Law, for Appellee/Cross-Appellee.

MARK W. BERNLOHR and ALAN M. MEDVICK, Attorneys at Law, for Cross-Appellants.

DAVID G. UTLEY, Attorney at Law, for Cross-Appellants.
