[Cite as Badders v. Century Ins. Co., 2019-Ohio-1900.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 JEROME BADDERS, et al.                                  :
                                                         :
         Plaintiff-Appellant                             :   Appellate Case No. 28170
                                                         :
 v.                                                      :   Trial Court Case No. 2014-CV-3042
                                                         :
 CENTURY INSURANCE COMPANY                               :   (Civil Appeal from
                                                         :   Common Pleas Court)
         Defendant-Appellee                              :
                                                         :

                                               ...........

                                               OPINION

                             Rendered on the 17th day of May, 2019.

                                               ...........

JEFFREY D. SLYMAN, Atty. Reg. No. 0010098, 211 Kenbrook Drive, Suite 5, Vandalia,
Ohio 45377, and JONATHAN B. FREEMAN, Atty. Reg. No. 0067683 and STEVEN E.
BACON, Atty. Reg. No. 0059926, 1 South Main Street, Suite 1590, Dayton, Ohio 45402
      Attorneys for Plaintiff-Appellant

RICHARD M. GARNER, Atty. Reg. No. 0061734 and JEFFREY S. MAYNARD, Atty. Reg.
No. 0073629, 655 Metro Place, Suite 200, Dublin, Ohio 43017
      Attorneys for Defendant-Appellee

                                                .............




TUCKER, J.
                                                                                          -2-


       {¶ 1} Plaintiff-appellant, Jerome Badders, dba Courtyard Lounge, LLC, appeals

from the trial court’s final order of September 20, 2018, in which the trial court granted

summary judgment to Defendant-appellee, Century Surety Company (“CSC”).                     1


Presenting one assignment of error, Badders argues that the trial court erred by entering

judgment under Civ.R. 56 because an issue of fact material to his causes of action against

CSC remained subject to dispute. Despite the premise of this assignment of error,

however, the argument offered by Badders is, in essence, a challenge to the trial court’s

interpretation of a contract of insurance, which is an issue of law, rather than an issue of

fact. We find that the trial court correctly applied the law to the contract in question, and

therefore, the final order of September 20, 2018, is affirmed.

                            I. Facts and Procedural History

       {¶ 2} This case began with an incident in December 2012. At that time, Marvin

Schalk was a regular patron of the Courtyard Lounge, a bar in Englewood. See State

Farm Mut. Auto. Ins. Co. v. Schalk, 2d Dist. Montgomery No. 26573, 2016-Ohio-732, ¶ 3.

On the evening of December 29, 2012, Schalk visited the Courtyard Lounge and

encountered his estranged wife, Linda, who was also a regular patron; the two were

separated but still married. Id.; Decision, Order and Entry Sustaining CSC’s Motion for



1  In its answer to Badders’s complaint, CSC noted that Badders had incorrectly referred
to it as “Century Insurance Group,” rather than its actual name, “Century Surety
Company,” though CSC never moved to have the caption of the case corrected. In the
final order from which Badders appeals, the incorrect identification of CSC as “Century
Insurance Company” appears for the first and only time in the trial court’s record.
(Pursuant to App.R. 11(A), the appeal is “docketed under the title given to the action in
the trial court,” i.e. in the judgment on appeal, which explains the caption of the instant
appeal.) Similarly, Badders was the only plaintiff, but the caption of the order on appeal
refers to “Jerome Badders, et al., Plaintiff [sic].”
                                                                                          -3-

Summary Judgment 2, Sept. 20, 2018 [hereinafter Final Order]. While there, Schalk

drank heavily. Schalk at ¶ 3.

       {¶ 3} At approximately 2:00 a.m. on December 30, 2012, Schalk was asked to

leave the premises because he had made inappropriate remarks to his wife. See id. at

¶ 4; Final Order 2. A friend of Schalk’s agreed to drive him home, but instead, the two

men took Schalk’s pickup truck to a house across the street. Schalk at ¶ 4. Schalk’s

wife had not left with him, and several minutes later, Schalk returned to the bar in his

truck. Id. Although the Courtyard Lounge had closed in the interim, Schalk knew that

employees and patrons sometimes lingered inside after the close of business. Id.

       {¶ 4} From the parking lot, Schalk began sending text messages to his wife, among

which was a threat to drive his truck into the front of the building. See id. at ¶ 5. Shortly

after making this threat, Schalk followed through, causing extensive damage to the

building and injuring a patron, Tatyana Belenky, as well as an employee.2 See id. at ¶

1-6; Final Order 3.    Schalk subsequently pleaded guilty to two counts of felonious

assault, second degree felonies pursuant to R.C. 2903.11(A)(1) and (D)(1), and one count

of vandalism, a fourth degree felony pursuant to R.C. 2909.05(B)(1)(a) and (E).

       {¶ 5} On December 2, 2013, Belenky filed a complaint against Badders, and

Schalk’s wife, in Montgomery County Court of Common Pleas Case No. 2013 CV 07351.

Badders, who had been insured by CSC under Policy No. CCP751735 (the “Policy”) for

the period running from March 4, 2012, to March 4, 2013, demanded accordingly that

CSC interpose a defense to Belenky’s claims and indemnify him in the event he was


2The injured employee might have been either Badders himself or his adult daughter,
Lora. Compare Complaint, Montgomery C.P. No. 2013 CV 07351 (Dec. 2, 2013), ¶ 1-
12, with Schalk at ¶ 4-6, and Final Order 3.
                                                                                            -4-


found liable. Final Order 3. CSC determined that it had no such obligations under the

Policy, prompting Badders to file his complaint in the instant matter on May 23, 2014. Id.

       {¶ 6} CSC moved for summary judgment on July 21, 2015, but partly as the result

of related litigation, which led to the appeal in Schalk, the trial court did not rule on CSC’s

motion until September 20, 2018, when it issued the Final Order. Badders timely filed

his notice of appeal on October 17, 2018.

                                         II. Analysis

       {¶ 7} For his assignment of error, Badders contends that:

              THE TRIAL COURT ERRED IN GRANTING CENTURY SURETY

       COMPANY SUMMARY JUDGMENT AND IN FINDING THAT THE

       CENTURY POLICY’S “ASSAULT AND BATTERY” EXCLUSION APPLIED

       TO BAR COVERAGE FOR APPELLANT, JEROME BADDERS, AS TO

       TATYANA BELENKY’S CLAIMS ARISING FROM THE ACTS OF A

       TORTFEASOR, MARVIN SCHALK, WHEN THERE WAS A GENUINE

       ISSUE OF MATERIAL FACT AS TO WHETHER SCHALK INTENDED TO

       CAUSE INJURY.

       {¶ 8} The disagreement between Badders and CSC concerns two endorsements

to the Policy, one of which excludes coverage for personal injuries and property damage

“arising out of or resulting” from “any actual, threatened or alleged assault or battery,” and

the other of which excludes coverage for personal injuries and property damage “for

which any insured may be held liable” under any “statute, ordinance or regulation relating

to the sale, gift, distribution or use of alcoholic beverages.”         See Policy, Special
                                                                                        -5-

Exclusions and Limitations Endorsement, and Exclusion—Assault and Battery.3 In the

Final Order, the trial court granted summary judgment to CSC because it found that the

first of the foregoing endorsements applied to Belenky’s claims against Badders. Final

Order 9.     The court deemed an evaluation of the second endorsement to be

unnecessary, having found that the claims were excluded pursuant to the first. Id.

       {¶ 9} Badders argues that the first of the endorsements does not exclude coverage

for Belenky’s claims against him because “Schalk’s actions were not necessarily * * * an

‘assault’ or a ‘battery.’ ”   Appellant’s Br. 10.   Additionally, Badders argues that the

second of the endorsements does not exclude coverage because R.C. 4399.18, also

known as the Dram Shop Act, was not the sole basis of his potential liability to Belenky.

       {¶ 10} Under Civ.R. 56(C), summary judgment is proper when: (1) a case presents

no genuine dispute as to any material fact; (2) the moving party is entitled to judgment as

a matter of law; and (3) construing the evidence most strongly in favor of the non-moving

party, reasonable minds can reach only one conclusion, which is adverse to the non-

moving party. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d

46 (1978); Dalzell v. Rudy Mosketti, L.L.C., 2d Dist. Clark No. 2015-CA-93, 2016-Ohio-

3197, ¶ 5, citing Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696

N.E.2d 201 (1998). The substantive law of the claim or claims being litigated determines

whether a fact is “material.”     Herres v. Millwood Homeowners Assn., Inc., 2d Dist.

Montgomery No. 23552, 2010-Ohio-3533, ¶ 21, citing Hoyt, Inc. v. Gordon & Assocs.,

Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995).



3 CSC attached a complete copy of the Policy as an exhibit to its motion for summary
judgment of July 21, 2015.
                                                                                           -6-


       {¶ 11} Initially, the movant bears the burden of establishing the absence of any

genuine issue of material fact. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d

798 (1988). The movant may rely only on evidence of the kinds listed in Civ.R. 56(C) for

this purpose. Dalzell at ¶ 5, citing Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662

N.E.2d 264 (1996). If the movant meets its burden, then the non-moving party bears a

reciprocal burden to establish, as set forth in Civ.R. 56(E), that the case presents one or

more genuine issues of fact to be tried. Id. at ¶ 6. The non-moving party, in satisfying

this requirement, may not rely merely upon the allegations or denials offered in the

pleadings, but like the movant, “must be able to point to evidentiary materials of the type

listed in Civ.R. 56(C).” Dresher at 293, quoting Civ.R. 56(E); Dalzell at ¶ 6. On appeal,

a trial court’s ruling on a motion for summary judgment is reviewed de novo. Dalzell at

¶ 6, citing Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, ¶ 42.

       {¶ 12} Regarding the Policy’s exclusion of coverage for liability resulting from “any

actual, threatened or alleged assault or battery,” Badders posits that “Schalk’s actions

were not necessarily either an ‘assault’ or a ‘battery’ ” in light of a genuine dispute “as to

whether Schalk intended to injure Belenky.” See Appellant’s Br. 10; Policy, Exclusion—

Assault and Battery. Badders bases this proposition on the distinction between the

statutory definition of assault and the common law definition. See id. at 10 and 13-15.

The common law tort of assault, like the common law tort of battery, is an intentional tort.

See, e.g., Turek v. Phelps, 11th Dist. Ashtabula No. 2016-A-0012, 2016-Ohio-7552, ¶ 30-

34; Smith v. John Deere Co., 83 Ohio App.3d 398, 406, 614 N.E.2d 1148 (10th Dist.1993).

By contrast, criminal assault in Ohio takes several forms, though none of them requires

proof that the alleged offender acted with intent; felonious assault under R.C.
                                                                                         -7-


2903.11(A)(1), for instance, prohibits any person from “knowingly,” rather than

“intentionally,” causing “serious physical harm to another or to another person’s unborn.”

See, e.g., GNFH, Inc. v. W. Am. Ins. Co., 172 Ohio App.3d 127, 2007-Ohio-2722, 873

N.E.2d 345, ¶ 57 (2d Dist.) (noting that assault under the Revised Code “is not a direct or

specific-intent crime”); Nationwide Mut. Ins. Co. v. Machniak, 74 Ohio App.3d 638, 641,

600 N.E.2d 266 (8th Dist.1991) (noting that, “[a]s statutorily defined, felonious assault is

not a specific-intent crime”); see also R.C. 2903.12 (aggravated assault); R.C. 2903.13

(assault); R.C. 2903.14 (negligent assault).

       {¶ 13} According to Badders, because the Policy itself does not provide a definition

of assault, the trial court should have applied only the common law definition, which he

insists is the “plain and ordinary meaning” of the term. Id. at 11-13. Were the common

law definition controlling, the trial court, as Badders argues, presumably would have erred

by entering judgment under Civ.R. 56 because the question of whether Schalk intended

to harm anybody other than himself had not been settled when the trial court issued the

Final Order. See Final Order 7-8; see also Schalk, 2d Dist. Montgomery No. 26573,

2016-Ohio-732, at ¶ 35-39. The question of how to construe the Policy’s use of the term

“assault” is, nevertheless, a question of contract interpretation, or in other words, a

question of law. Schaeffer v. Nationwide Mut. Ins. Co., 2d Dist. Greene No. 2001 CA

131, 2002-Ohio-4811, ¶ 14, citing Leber v. Smith, 70 Ohio St.3d 548, 553, 639 N.E.2d

1159 (1994).

       {¶ 14} We find that Badders’s argument lacks merit. Badders fails to establish

that the plain and ordinary meaning of the term “assault” is, and can only be, the common

law definition. At common law, the tort of assault “is defined as the willful threat or
                                                                                             -8-


attempt to harm or touch another offensively, which threat or attempt reasonably places

the other in fear of such contact.” (Emphasis added.) John Deere at 406. Essentially

the same definition of the term appears in Black’s Law Dictionary. See, e.g., Black’s Law

Dictionary 105 (5th Ed.1979). Nevertheless, this definition applies to the word “assault”

as the denomination of a common law cause of action, and for that reason, it is not

necessarily representative of the “plain and ordinary meaning” of the word.                  In

dictionaries of general usage, as opposed to a specialized reference like Black’s Law

Dictionary, the word “assault” is defined as “[a]n attack or violent onset, whether by an

individual [person], a company, or an army.”           Webster’s New Twentieth Century

Dictionary of the English Language 107 (1964). To most persons, other than lawyers

and legal professionals, this latter definition is almost certainly the “plain and ordinary

meaning” of the word “assault.” In fact, Black’s Law Dictionary notes that the word is

“[f]requently used to describe illegal force which is technically a battery.” Black’s Law

Dictionary 105 (5th Ed.1979). Even lawyers and legal professionals, for that matter,

probably use the word in reference to the crime of assault as often, or more so, as they

use the word in reference to the common law tort.

       {¶ 15} Badders relies on a single decision from the Third District Court of Appeals

to support his contention that “Ohio [c]ourts [sic] of [a]ppeal have previously looked to

[the] common law for the * * * plain and ordinary meaning” of the word “assault” and have

“found that an ‘assault’ is ‘the willful threat or intent to harm or touch another offensively,

which threat or attempt reasonably places the other in fear of such contact.’ ” Appellant’s

Br. 13, quoting Wright v. Larschied, 3d Dist. Allen No. 1-14-02, 2014-Ohio-3772, ¶ 27.

Yet, the opinion actually provides little or no support for the position taken by Badders.
                                                                                            -9-

       {¶ 16} In Wright, two patrons of a bar sued the bar’s owner for injuries they suffered

after being “ ‘attacked and struck’ ” by other patrons. Wright at ¶ 1-2. The owner’s

insurance company denied that it had any duty to defend the owner in the lawsuit because

the owner’s policy included a coverage exclusion, comparable to the exclusion at issue

here, for injuries arising from an assault or battery. Id. at ¶ 1-2 and 8. In response, the

owner argued that because the causes of action asserted against him were “ ‘negligence,’

‘violation of policy, practice or custom,’ and ‘failure to supervise,’ ” the exclusion was

inapplicable. See id. at ¶ 1-2 and 15. The trial court concurred with the insurance

company. See id. at ¶ 13.

       {¶ 17} Affirming the trial court, the Third District observed that the exclusion

“clearly and unambiguously” applied to “any bodily injury arising out of an assault or

battery,” irrespective of “how the assault or battery occurred or who may or may not have

contributed to its occurrence.” (Emphasis sic.) Id. at ¶ 1 and 28. Although the Third

District discussed the common law definition of assault in the course of its analysis, the

decision is largely inapposite to this case because the intent, or lack thereof, of those who

injured the plaintiffs was not at issue. Instead, the Third District was asked to determine

whether the plaintiffs had suffered injuries “ ‘arising out of’ ” an assault or battery, rather

than to ascertain the meaning of the term “assault.” See id. at ¶ 25-28. Furthermore,

the Third District appears to have considered the statutory definition of assault in addition

to the common law definition; summarizing its reasoning, the court remarked that because

the plaintiffs were “attempting to recover for their injuries sustained by assault or battery,

their claims against [the owner of the bar]—that he failed to provide for their safety and

[to] protect them from criminal acts of third parties, * * *, [were] excluded under the
                                                                                          -10-

[owner’s] [p]olicy.” (Emphasis added.) Id. at ¶ 31. The Wright decision thus provides

little or no support for the proposition that only the common law definition of assault may

be applied to an insurance policy that does not itself define the term.

       {¶ 18} Moreover, Badders assumes in making his argument that the term “assault”

is ambiguous merely because it has more than one definition.              This assumption is

unwarranted. For example, we previously considered whether an analogous coverage

exclusion was ambiguous with respect to its application to “assaults committed by [a

bar’s] third-party patrons as opposed to assaults committed by [the bar’s] employees,”

given that the policy at issue did not specify as much. Colter v. Spanky’s Doll House, 2d

Dist. Montgomery No. 21111, 2006-Ohio-408, ¶ 5-25 and 32-41. We found that even in

the absence of an express “distinction between different [categories] of [persons] who

may commit an assault or battery,” the policy’s exclusion “unambiguously extend[ed] to

all claims arising out of or related to an assault or battery, regardless of whether the

misconduct [was] committed by a[n] * * * employee or [by] a third-party patron.” Id. at ¶

41. Likewise, in this case, we find that the exclusion of coverage for personal injuries

and property damage “arising out of or resulting” from “any actual, threatened or alleged

assault or battery” unambiguously applies to exclude coverage for personal injuries and

property damage that result from any legally cognizable form of assault, without respect

to whether the assault is criminal or tortious.

       {¶ 19} Regarding the Policy’s exclusion of coverage for personal injuries and

property damage “for which any insured may be held liable” under any “statute, ordinance

or regulation relating to the sale, gift, distribution or use of alcoholic beverages,” Badders

argues that the trial court was required to evaluate “the scope of [Belenky’s] allegations”
                                                                                        -11-


against him to determine whether the Policy provided or excluded coverage. Appellant’s

Br. 18; see Policy, § 1, Coverage A, and Special Exclusions and Limitations

Endorsement.     He maintains accordingly that the exclusion is inapplicable because

Belenky failed to state a claim pursuant to the Dram Shop Act, and that the Dram Shop

Act “is not indisputably applicable to the facts of this case,” under which Belenky “could

assert a[n] [independent] claim for violation of common law duties.” See id. at 18-21.

       {¶ 20} As did the trial court, however, we find that our determination regarding the

applicability of the Policy’s assault-and-battery exclusion obviates the need for a

determination regarding the applicability of the Policy’s Special Exclusions and

Limitations Endorsement. Badders’s assignment of error is overruled.

                                      III. Conclusion

       {¶ 21} We find that the term “assault” as used in the Policy unambiguously includes

the common law tort of assault and the crime of assault as defined in the Revised Code.

Therefore, the trial court’s final order of September 20, 2018, is affirmed.



                                      .............



WELBAUM, P.J., concurs.

FROELICH, J., dissents:

       {¶ 22} The trial court granted summary judgment to CSC, finding, as a matter of

law, that CSC had no contractual obligation to defend and indemnify the Courtyard

Lounge and Badders under the terms of its policy. As discussed above, the trial court

determined that coverage was precluded by an Assault and Battery exclusion. I would
                                                                                       -12-


find that the exclusion for personal injuries and property damage “arising out of or

resulting” from “any actual, threatened or alleged assault or battery”   incorporates only

common law definitions and, further, that genuine issues of material fact precluded

summary judgment regarding the Assault and Battery exclusion. Accordingly, I dissent.

                           I. TATYANA BELENKY’S CLAIM

       {¶ 23} In her amended complaint (CSC Motion for Summary Judgment Ex. 8),

Tatyana Belenky alleged that the Courtyard Lounge was a retail liquor establishment,

which dispensed beer, wine, and spirits in accordance with its liquor license. From

approximately 2:45 a.m. through 2:53 a.m. on December 30, 2012, Belenky and Linda

Schalk (“Linda”) were patrons of the Courtyard Lounge. During that time, Linda received

several text messages from Schalk, indicating that he would drive his truck through the

Courtyard Lounge, in an effort to die by suicide, if she did not exit the bar within five

minutes. Linda showed the text message to Lora Badders, bartender at the bar, but no

one else. Lora Badders did not warn others of the danger. At approximately 2:53 a.m.,

Schalk drove his pick-up truck through the front wall of the Courtyard Lounge, causing

injuries to Belenky.

       {¶ 24} In her claim against Badders, dba Courtyard Lounge, LLC, Belenky alleged

that Badders had breached his duty of care to her by negligently failing to (1) remove,

exit, or evacuate patrons, (2) warn business invitees of the immediate foreseeable danger

of Schalk’s driving his truck through the storefront, (3) protect Belenky and others by

directing them to a safe place after being placed on notice of Schalk’s intended actions,

(4) supervise, hire, or train its employees, (5) follow applicable Ohio, local liquor, and

safety laws regarding evacuation of the premises, (6) warn its patrons about or protect
                                                                                         -13-


them from the criminal acts of third parties, (7) adhere to and abide by laws related to the

duties and responsibilities of a business owner to business invitees, and (8) warn Belenky

and others, through his employees, of Schalk’s intended actions.

       {¶ 25} Belenky did not allege that Schalk was intoxicated. However, additional

evidence in this case, including Schalk’s deposition testimony, established that he was

intoxicated when he left the Courtyard Lounge. See Preferred Risk Ins. Co. v. Gill, 30

Ohio St.3d 108, 112-113, 507 N.E.2d 1118 (1987) (in declaratory judgment action on duty

to defend and/or indemnify, insurer may proceed to demonstrate that the facts alleged in

the underlying tort complaint differ from the actual facts and that the actual facts removed

the insured’s conduct from coverage); Cincinnati Ins. Co. v. Anders, 99 Ohio St.3d 156,

2003-Ohio-3048, 789 N.E.2d 1094, ¶ 20-21 (discussing Gill).

                   II. LAW REGARDING INSURANCE CONTRACTS

       {¶ 26} An insurer may institute a declaratory judgment action to determine “its

rights and obligations under a contract of insurance.” Mid-American Fire & Cas. Co. v.

Heasley, 113 Ohio St.3d 133, 2007-Ohio-1248, 863 N.E.2d 142, ¶ 8, quoting Gill at

paragraph one of the syllabus.

       {¶ 27} “The duty of an insurer to defend an insured is a broad duty—broader than

the duty to indemnify—that is absolute when the complaint contains any allegation that

could arguably be covered by the insurance policy. An exception to the absolute duty

exists when all the claims are each clearly and indisputably outside the coverage.

Another way of stating the exception is that the insurer need not provide a defense if there

is no set of facts alleged in the complaint that, if proved true, would invoke coverage for

any claim.” (Citations omitted.) Granger v. Auto-Owners Inc., 144 Ohio St.3d 57, 2015-
                                                                                       -14-


Ohio-3279, 40 N.E.3d 1110, ¶ 21.

      {¶ 28} The interpretation of a contract is a question of law. St. Marys v. Auglaize

Cty. Bd. of Commrs., 115 Ohio St.3d 387, 2007-Ohio-5026, 875 N.E.2d 561, ¶ 38;

Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d 107, 108, 652 N.E.2d

684 (1995). When reviewing a contract, the court’s primary role is to ascertain and give

effect to the intent of the parties. Hamilton Ins. Serv., Inc. v. Nationwide Ins. Cos., 86

Ohio St.3d 270, 273, 714 N.E.2d 898 (1999). A contract that is, by its terms, clear and

unambiguous requires no real interpretation or construction and will be given the effect

called for by the plain language of the contract. Aultman Hosp. Assn. v. Community Mut.

Ins. Co., 46 Ohio St.3d 51, 55, 544 N.E.2d 920 (1989).

      {¶ 29} Where terms in an insurance contract are not defined, courts will give them

their plain and ordinary meaning. E.g., Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216,

2003-Ohio-5849, 797 N.E.2d 1256, ¶ 11; Colter, 2d Dist. Montgomery No. 21111, 2006-

Ohio-408, ¶ 29. 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, 896 N.E.2d 666, ¶ 15.

      “[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, 597

      N.E.2d 1096 (1992). Exclusions are strictly construed against the insurer,

      and will only be enforced if they unambiguously deny coverage under the

      policy. [Allstate Ins. Co. v.] Eyster, 2010-Ohio-3673 at ¶ 19, 189 Ohio

      App.3d 640, 939 N.E.2d 1274 [(3d Dist)].
                                                                                         -15-

Cincinnati Specialty Underwriters Ins. Co. v. Larschied, 3d Dist. Allen No. 1-14-01, 2014-

Ohio-4137, ¶ 22.

                   III. CSC’S ASSAULT AND BATTERY EXCLUSION

       {¶ 30} CSC’s Commercial General Liability Coverage Form provides that CSC will

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. CSC also had the

“right and duty to defend the insured against any ‘suit’ seeking those damages.

However, [CSC] 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.”

(CSC Motion for Summary Judgment Ex. 3 – CENTURY-000016) The policy contains

numerous exclusions, including exclusions for Assault and Battery and for Liquor Liability.

       {¶ 31} The Assault and Battery exclusion in CSC’s policy excluded coverage for

personal injuries and property damage “arising out of or resulting” from “any actual,

threatened or alleged assault or battery.” Badders argues that Schalk’s actions were not

necessarily an assault or a battery, because there was a genuine issue of material fact

as to whether Schalk intended to injure Belenky.

       {¶ 32} In my view, the Assault and Battery exclusion in CSC’s policy reasonably

includes only the common law definition of “assault” and “battery.” The tort of assault is

defined as “the willful threat or attempt to harm or touch another offensively, which threat

or attempt reasonably places the other in fear of such contact.” Wenzel v. Al Castrucci,

Inc., 2d Dist. Montgomery No. 17485, 1999 WL 397366, * 7 (June 18, 1999), citing John

Deere Co., 83 Ohio App.3d 398, 406, 614 N.E.2d 1148. A battery occurs when there is

actual harmful and/or offensive contact. Id. Assault and battery are intentional torts.
                                                                                          -16-

See, e.g., Turek, 11th Dist. Ashtabula No. 2016-A-0012, 2016-Ohio-7552, ¶ 30-34; John

Deere at 406; McKinley v. Chris’ Band Box, 153 Ohio App.3d 387, 2003-Ohio-4086, 794

N.E.2d 136, ¶ 14 (2d Dist.) (“An assault is an intentional act.”).

       {¶ 33} In contrast, Ohio’s criminal law punishes certain behaviors that cause harm

under the category “Assault.” See R.C. 2903.11 to R.C. 2903.16. A person commits

felonious assault in violation of 2903.11 when the person “knowingly” causes physical

harm to another or to another’s unborn, or causes or attempts to cause physical harm to

another or to another’s unborn by means of a deadly weapon or dangerous ordnance.

R.C. 2903.11(A)(1) and (2). A person who is HIV positive commits felonious assault if

he or she knowingly engages in sexual conduct under certain circumstances.              R.C.

2903.11(B). Aggravated assault, which concerns conduct while under the influence of

sudden passion or in a sudden fit of rage, also requires the offender to act knowingly.

R.C. 2903.12. The offense of assault can be based on knowingly causing or attempting

to cause physical harm, R.C. 2903.13(A), or recklessly causing serious physical harm,

R.C. 2903.13.    A person commits negligent assault if he or she negligently causes

physical harm by means of a deadly weapon or dangerous ordnance. R.C. 2903.14.

The offenses of “permitting child abuse” and “failing to provide for functionally impaired

person” also fall within the “Assault” statutes. There is no category of offenses under the

label “Battery,” although there is the offense of sexual battery. See R.C. 2907.03.

       {¶ 34} The use of “assault and battery” in the common vernacular does not

consider the myriad of behaviors and intent levels reflected in the criminal code for assault

offenses. Rather, as stated by the Third District, “[t]he terms ‘assault’ and ‘battery’ carry

a specific legal connotation pertaining to conduct constituting intentional torts meaning
                                                                                             -17-

that a wrongful threat or a wrongful use of force has occurred.” Hawk v. Stocklin, 3d Dist.

Allen No. 1-13-56, 2014-Ohio-2335, ¶ 29 (applying the plain and ordinary meaning of the

terms “assault” and “battery” in an insurance policy endorsement).              Moreover, any

ambiguity in the meaning of “assault” and “battery” should be construed in favor of the

insured and against the insurer. Lager, 120 Ohio St.3d 47, 2008-Ohio-4838, 896 N.E.2d

666, at ¶ 15.

       {¶ 35} Applying the common law meaning of “assault or battery” to CSC’s policy,

there are genuine issues of material fact as to whether the exclusion applies, because

there is an issue of fact as to whether Schalk intended to threaten, attempt to harm, or

harm another when he drove his truck into the bar. As we stated in related litigation

involving Schalk,

       Based on the evidence presented in this case, the trial court erred in

       concluding, as a matter of law, that there were no genuine issues of material

       fact as to whether Schalk “intentionally caused bodily injury” to patrons of

       the bar and that his actions were so “intrinsically tied” to the injuries as to

       infer such an intent.        Although injuries were certainly foreseeable,

       foreseeability is insufficient to infer an intent to injure, because foreseeability

       of an injury is often present when an act is merely reckless or wanton (i.e.,

       something less than intentional). Foreseeability or substantial certainty of

       injury does not “intrinsically tie” an injury to an intentional act. See [Allstate

       Ins. Co. v. Campbell, 128 Ohio St.3d 186, 2010-Ohio-6312, 942 N.E.2d

       1090] at ¶ 52-56.

Schalk, 2016-Ohio-732, 47 N.E.3d 926, ¶ 39.              The fact that Schalk pled guilty to
                                                                                          -18-


felonious assault did not conclusively establish that he acted with the intent to injure

Belenky or others. Accord, e.g., Machniak, 74 Ohio App.3d 638, 641, 600 N.E.2d 266

(8th Dist.1991) (driver’s felonious assault conviction did not affirmatively establish intent

to injure for purposes of insurance coverage).

       {¶ 36} Accordingly, I would conclude that the trial court erred in granting summary

judgment to CSC on its claim of lack of coverage based on the Assault and Battery

exclusion. I would remand for the trial court to consider whether the Liquor Liability

exclusion applies.




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Jeffrey D. Slyman
Jonathan B. Freeman
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Richard M. Garner
Jeffrey S. Maynard
Hon. Barbara P. Gorman
