Cincinnati Specialty Underwriters Ins. Co. v. Larschied , 2014 Ohio 4137 ( 2014 )

[Cite as Cincinnati Specialty Underwriters Ins. Co. v. Larschied, 2014-Ohio-4137.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
THE CINCINNATI SPECIALTY
UNDERWRITERS INSURANCE CO.,
PLAINTIFF-APPELLEE, CASE NO. 1-14-01
v.
HARRY LARSCHIED, INDIVIDUALLY
AND DBA HARRY'S HIDE A WAY & PATIO,
DEFENDANT-APPELLANT,
-and- OPINION
ANTHONY LANE, ET AL.
DEFENDANTS-APPELLEES.
Appeal from Allen County Common Pleas Court
Trial Court No. CV 2013 0410
Judgment Affirmed
Date of Decision: September 22, 2014
APPEARANCES:
Robert B. Fitzgerald for Appellant, Harry Larschied, D.B.A., Harry’s
Hide A Way & Patio
Michael M. Neltner for Appellee, Cincinnati Specialty Underwriters
Insurance Company
Case No. 1-14-01
ROGERS, J.
{¶1} Defendant-Appellant, Harry Larschied, individually and dba Harry’s
Hide A Way & Patio, appeals the judgment of the Court of Common Pleas of
Allen County granting summary judgment to Plaintiff-Appellee, Cincinnati
Specialty Underwriters Insurance Co. (“Cincinnati Insurance”) in a declaratory
judgment action. On appeal, Larschied argues that the court erred in finding that
the allegations in the complaint were excluded from coverage under the insurance
policy. Larschied also argues that, if the insurance policy does exclude the claim,
the trial court erred in failing to find the insurance policy to be illusory. For the
reasons that follow, we affirm.
{¶2} On December 27, 2012, Anthony Lane filed a complaint naming
Larschied, individually and dba Harry’s Hide A Way & Patio, as a co-defendant
with Swan Nichols. Lane sought damages from an alleged altercation with
Nichols that occurred at Harry’s Hide A Way & Patio early in the morning on July
5, 2012. The complaint listed four claims against Nichols: (1) battery; (2) assault;
(3) intentional infliction of serious emotional distress; and (4) negligent infliction
of serious emotional distress. The complaint also listed two claims against
Larschied: (1) violation of policy, practice, or custom; and (2) failure to supervise.
(Docket No. 17, Exhibit A, p. 7) (“Complaint”).
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{¶3} At the time of the alleged altercation, Larschied was insured under a
Commercial General Liability Policy (“the policy”) issued through Cincinnati
Insurance. The policy stated that it would
pay those sums that the insured becomes legally obligated to pay as
damages because of “bodily injury” or “property damage” to which
this insurance applies. We will have the right and duty to defend the
insured against any “suit” seeking those damages. However, we will
have no duty to defend the insured against any “suit” seeking
damages for “bodily injury” or “property damage” to which this
insurance does not apply.
(Docket No. 17, Exhibit C, Commercial General Liability Coverage Form, p. 1).
(“Insurance Policy”). Further, the policy defined an insured as:
1. If you are designated in the Declarations as:
a. An individual, you and your spouse are insureds, but only with
respect to the conduct of a business of which you are the sole
owner.
***
2. Each of the following is also an insured:
a. Your “volunteer workers” only while performing duties related
to the conduct of your business, or your “employees” * * * but
only for acts within the scope of their employment by you or
while performing duties related to the conduct of your business.
(Id. at p. 9). Larschied was named as an individual in the declarations. The policy
stated that “ ‘Bodily Injury’ means bodily injury, sickness or disease sustained by
a person, including death resulting from any of these at any time.” (Id. at p. 13).
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{¶4} The policy also contained an exclusion for claims arising from an
assault or battery. The exclusion stated that the insurance contract
does not apply to “bodily injury,” “property damage” or “personal
and advertising” injury arising out of
(1) An actual or threatened assault or battery whether caused by or
at the instigation or direction of any insured, their employees,
patrons or any other person;
(2) The failure of any insured or anyone else for whom the insured
is legally responsible to prevent or suppress assault or battery; or
(3) The negligent:
(a) Employment;
(b) Investigation or reporting or failure to report any assault
or battery to the proper authorities;
(c) Supervision;
(d) Training;
(e) Retention;
of a person for whom any insured is or ever was legally responsible
and whose conduct would be excluded by paragraph a. above.
(Docket No. 17, Exhibit C, Exclusion – Assault or Battery, p. 1) (“Assault and
Battery Exclusion”). Larschied requested that Cincinnati Insurance defend him
against Lane’s lawsuit under the insurance contract, and Cincinnati Insurance
complied.1
1
In its judgment entry, the trial court noted that the claims against Larschied had been dismissed on
November 26, 2013, through summary judgment. (Docket No. 22, p. 2). While not in the trial court
record, at oral argument Larschied stated that his defense was provided under a reservation of rights. As a
result, the declaratory judgment action is not moot, as a justiciable controversy still exists. Allstate Ins. Co.
v. Long, 11th Dist. Portage Nos. 2001-P-0038, 2001-P-0039, 2003-Ohio-61, ¶ 22.
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{¶5} On June 12, 2013, Cincinnati Insurance filed a complaint for
declaratory judgment, alleging that it had no duty to defend Larschied against
Lane’s lawsuit as the allegations in the complaint were excluded under the policy.
On October 8, 2013, Cincinnati Insurance moved for summary judgment. In
Larschied’s response, he argued that the exclusion did not apply to the allegations
in the complaint, and that, if it did, the policy is illusory. On January 3, 2014, the
trial court granted summary judgment in favor of Cincinnati Insurance, declaring
that it had no duty to defend Larschied.
{¶6} It is from this judgment that Larschied filed this timely appeal,
presenting the following assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED IN GRANTING THE
PLAINTIFF/APPELLEE’S MOTION FOR SUMMARY
JUDGMENT WHEN IT RULED THAT THE ASSAULT OR
BATTERY ENDORSEMENT “OBVIATED ANY DUTY ON
THE PART OF THE INSURER TO DEFEND AGAINST OR
TO COVER ANY DAMAGES THAT AROSE FROM THE
SUBJECT ALTERCATION AT HARRY’S HIDE A WAY.”
(SEE JUDGMENT ENTRY OF TRIAL COURT FILED JAN. 3,
2014, P. 6)
Assignment of Error No. II
THE TRIAL COURT ERRED IN FINDING THAT THE
INSURANCE POLICY DOES NOT PROVIDE COVERAGE
AND THEREFORE EFFECTIVELY CREATED AN
ILLUSORY CONTRACT AS IT FAILS TO PROVIDE ANY
BENEFIT TO THE INSURED.
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Assignment of Error No. I
{¶7} In his first assignment of error, Larschied argues that the trial court
erred in granting summary judgment because Cincinnati Insurance has a duty to
defend him against Lane’s lawsuit. Specifically, Larschied claims that the
allegations in the complaint brought the action under the coverage of the policy
and are not otherwise excluded. We disagree.
Standard of Review
{¶8} An appellate court reviews a summary judgment order de novo.
Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App. 3d 172, 175 (8th
Dist.1999). Accordingly, a reviewing court will not reverse an otherwise correct
judgment merely because the lower court utilized different or erroneous reasons as
the basis for its determination. Diamond Wine & Spirits, Inc. v. Dayton
Heidelberg Distrib. Co., Inc., 148 Ohio App. 3d 596, 2002-Ohio-3932, ¶ 25 (3d
Dist.), citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio
St.3d 217, 222 (1994). Summary judgment is appropriate when, looking at the
evidence as a whole: (1) there is no genuine issue as to any material fact, and (2)
the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). In
conducting this analysis the court must determine “that reasonable minds can
come to but one conclusion and that conclusion is adverse to the party against
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whom the motion for summary judgment is made, [the nonmoving] party being
entitled to have the evidence or stipulation construed most strongly in the
[nonmoving] party’s favor.” Id. If any doubts exist, the issue must be resolved in
favor of the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St. 3d 356, 359
(1992).
{¶9} The party moving for summary judgment has the initial burden of
producing some evidence which demonstrates the lack of a genuine issue of
material fact. Dresher v. Burt, 75 Ohio St. 3d 280, 292 (1996). In doing so, the
moving party is not required to produce any affirmative evidence, but must
identify those portions of the record which affirmatively support his argument.
Id. at 292-293. The nonmoving party must then rebut with specific facts showing
the existence of a genuine triable issue; he may not rest on the mere allegations or
denials of his pleadings. Id. at 293; Civ.R. 56(E).
{¶10} Moreover, “[a]n insurance policy is a contract, and its interpretation
is a matter of law for the court.” Allstate Ins. Co. v. Eyster, 189 Ohio App. 3d 640,
2010-Ohio-3673, ¶ 17 (3d Dist.), citing Sharonville v. Am. Emp. Ins. Co., 109
Ohio St. 3d 186, 2006-Ohio-2180, ¶ 6. An insurance policy must be examined “as
a whole and [with the presumption] that the intent of the parties is reflected in the
language used in the policy.” Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 216,
2003-Ohio-5849, ¶ 11. “The coverage under an insurance policy is determined by
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construing the contract ‘in conformity with the intention of the parties as gathered
from the ordinary and commonly understood meaning of the language employed.’
” Eyster at ¶ 17, quoting King v. Nationwide Ins. Co., 35 Ohio St. 3d 208, 211
(1988).
{¶11} While terms in an insurance contract are to be given their plain and
ordinary meaning, any ambiguity is construed against the insurer. Lager v. Miller-
Gonzalez, 120 Ohio St. 3d 47, 2008-Ohio-4838, ¶ 15. However, “[a]mbiguity
exists only when a provision at issue is susceptible of more than one reasonable
interpretation.” Id. at ¶ 16. “[A] court cannot create ambiguity in a contract where
there is none.” Id.
{¶12} Larschied argues that two claims in the complaint trigger coverage
under the policy: the fourth claim, which is for negligent infliction of serious
emotional distress, and the fifth claim, which is for a violation of policy, practice
or custom. We will discuss the allegations in each of these claims in turn.
Negligent Infliction of Serious Emotional Distress
{¶13} Before determining whether any exclusions apply, “[o]ne who seeks
to recover on an insurance policy generally has the burden of demonstrating
coverage under the policy and then proving a loss.” Chicago Title Ins. Co. v.
Huntington Natl. Bank, 87 Ohio St. 3d 270, 273 (1999), citing Inland Rivers
Service Corp. v. Hartford Fire Ins. Co., 66 Ohio St. 2d 32, 34 (1981). Here,
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Larschied argues that Lane’s complaint “alleged negligence against an insured
under the policy.” (Appellant’s Br., p. 6).
{¶14} The terms of the policy define who is an insured for the purposes of
receiving coverage. Galatis, 2003-Ohio-5849 at ¶ 35. Here, the policy will only
“pay for those sums that the insured becomes legally obligated to pay as damages
because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.”
(Emphasis added.) (Insurance Policy, p. 1). The policy creates a “duty to defend
the insured against any ‘suit’ seeking those damages.” (Emphasis added.) (Id.)
The only insureds under the policy are Larschied, his spouse, and his volunteer
workers and employees while they are within the scope of their employment. (Id.
at p. 9-10).
{¶15} In Lane’s complaint, the fourth claim, which alleges negligent
infliction of serious emotional distress, states that “Defendant Nichols conduct was
negligent and did cause plaintiff to suffer serious emotional distress which was
reasonably foreseeable by Defendant Nichols at the time.” (Emphasis added.)
(Complaint, p. 3). Nichols is not an insured under the terms of the policy, as he is
not Larschied, Larschied’s spouse, a volunteer worker or an employee. Therefore,
even if Nichols becomes legally obligated to pay damages as a result of this claim,
he is not an insured who is legally obligated to pay damages, as required to trigger
coverage under the policy.
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{¶16} Assuming, arguendo, that Nichols is an insured under the terms of
the policy, this claim in the complaint would still not trigger coverage. “An
insurance company owes no obligation to its insured or others injured by the
insured unless the insured’s conduct falls within the policy coverage.” Talbert v.
Continental Cas. Co., 157 Ohio App. 3d 469, 2004-Ohio-2608, ¶ 8 (2d Dist.). The
policy states that there is “no duty to defend the insured against any ‘suit’ seeking
damages for ‘bodily injury’ or ‘property damage’ to which this insurance does not
apply.” (Emphasis added.) (Insurance Policy, p. 1). The term “bodily injury” in
the policy “means bodily injury, sickness or disease sustained by a person,
including death resulting from any of these at any time.” (Id. at p. 13).
{¶17} This court, when analyzing a policy that “defined ‘bodily injury’ as
‘bodily harm, sickness or disease, including death that results,’ ” found that
“bodily injury does not include emotional or mental distress.” Dieringer v.
Sawmiller, 3d Dist. Auglaize No. 2-12-04, 2012-Ohio-4880, ¶ 3, 15. Even where,
as here, the term “bodily injury” is defined using the words “bodily injury,” the
term is not ambiguous and should not be construed against the insurer in favor of
coverage for emotional injuries. Hawthorne v. Migoni, 5th Dist. Tuscarawas No.
2003 AP 07 0054, 2004-Ohio-378, ¶ 13. Thus, emotional injuries are not “bodily
injury” under the policy. Therefore, while the claim in the complaint is for
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negligence, it cannot be overlooked that it is for negligent infliction of emotional
distress.2 Emotional distress is not a “bodily injury” to which the policy applies.
{¶18} The grant of coverage is both clear and unambiguous as to who is an
insured and what damages trigger coverage. As this claim fails to trigger
coverage, it is not necessary to determine whether an exclusion applies. As
Nichols is not an insured and the alleged damages are not covered under the
policy, Cincinnati Insurance has no duty to defend as a result of this claim.
Violation of Policy, Practice or Custom
{¶19} In Lane’s complaint, the fifth claim is for a “Violation of Policy,
Practice or Custom.” (Complaint, p. 3.) Unlike the claim for negligent infliction
of emotional distress, it is undisputed that this claim is specifically against an
insured, Larschied, and is for damages from a “bodily injury” as it is defined in the
policy. Cincinnati Insurance argues that the Assault and Battery Endorsement
applies to the claim and excludes coverage. Larschied argues that this claim
includes allegations that potentially trigger coverage, because
[w]hile the legal nature of the allegation * * * is unclear, one thing is
certain: this allegation is not one of assault or battery. * * * There is
no provision or language within [Cincinnati Insurance’s] policy that
expressly excludes an allegation of this kind of coverage. Indeed the
Assault or Battery Endorsement makes no reference whatsoever to
an allegation of violation of policy, practice, or custom.
2
We note that the claim also includes a request for damages for the actual injuries Lane suffered. This
does not change the nature of the claim to anything other than that of emotional distress, as “[p]roof of a
resulting physical injury is admissible as evidence of the degree of emotional distress suffered.” Paugh v.
Hanks, 6 Ohio St. 3d 72 (1983), paragraph two of the syllabus.
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Appellant’s Br., p. 7.
{¶20} The duty of an insurer to defend an action is broader than the duty to
indemnify. Beaverdam Contracting v. Erie Ins. Co., 3d Dist. Allen No. 1-08-17,
2008-Ohio-4953, ¶ 20. “The duty to defend is determined by the scope of the
allegations in the complaint.” Ward v. United Foundries, Inc., 129 Ohio St. 3d
292, 2011-Ohio-3176, ¶ 19, citing Ohio Govt. Risk Mgt. Plan v. Harrison, 115
Ohio St. 3d 241, 2007-Ohio-4948, ¶ 19. “Only if there is no possibility of
coverage under the policy based on the allegations in the complaint will the
insurer not have a duty to defend the action.” Erie Ins. Exchange v. Colony Dev.
Corp., 136 Ohio App. 3d 406, 413 (10th Dist.1999).
However, where the insurer’s duty to defend is not apparent from the
pleadings in the case against the insured, but the allegations do state
a claim which is potentially or arguably within the policy coverage,
or there is some doubt as to whether a theory of recovery within the
policy coverage has been pleaded, the insurer must accept the
defense of the claim. Thus, the “scope of the allegations” may
encompass matters well outside the four corners of the pleadings.
City of Willoughby Hills v. Cincinnati Ins. Co., 9 Ohio St. 3d 177, 180 (1984).
{¶21} This does not allow a court to “impose a duty to defend based on
allegations outside the complaint, where the complaint does not state a claim that
arguably triggers coverage.” Motorists Mut. Ins. Co. v. Natl. Dairy Herd
Improvement Assn., Inc., 141 Ohio App. 3d 269, 278 (10th Dist.2001).
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“[W]here a court reviews a complaint and concludes beyond a doubt
that there are [no] arguably covered claims encompassed therein it
need not stretch the allegations beyond reason to impose a duty on
the insurer. To do so would effectively impose an absolute duty on
the insurer to provide a defense to the insured regardless of the cause
of action stated in the complaint. Even under the liberal notions of
notice pleading it would be inherently unfair to require the insurer to
provide a defense where the pleadings failed to notify, even
arguably, that the insured is being sued on a claim covered by the
policy.”
Id., quoting Leland Electrosystems, Inc. v. Travelers Ins. Co., 2d Dist.
Montgomery No. 8580, 1984 WL 5371, *2 (July 10, 1984). “If the conduct
alleged in the complaint is indisputably outside the scope of coverage, there is no
duty to defend.” Carter v. Adams, 173 Ohio App. 3d 195, 2007-Ohio-4322, ¶ 10
(1st Dist.).
{¶22} “[W]here an insurance contract excludes coverage for the claim
against the insured, no duty to defend will arise * * * because the allegations in the
pleadings fall squarely within an area of activity specifically excluded from
coverage.” Beaverdam Contracting at ¶ 21, citing Zanco v. Michigan Mut. Ins.
Co., 11 Ohio St. 3d 114, 116 (1984). “[A]n exclusion in an insurance policy will
be interpreted as applying only to that which is clearly intended to be excluded.”
(Emphasis sic.) Hybud Equip. Corp. v. Sphere Drake Ins. Co., Ltd., 64 Ohio St. 3d
657, 665 (1992). Exclusions are strictly construed against the insurer, and will
only be enforced if they unambiguously deny coverage under the policy. Eyster,
2010-Ohio-3673 at ¶ 19. Other courts have found assault and battery exclusions to
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be unambiguous and applied them to exclude coverage. See Carter at ¶ 33; Colter
v. Spanky’s Doll House, 2d Dist. Montgomery No. 21111, 2006-Ohio-408, ¶ 41;
Sphere Drake Ins. Co. v. Ross, 80 Ohio App. 3d 506, 509 (9th Dist.1992).
{¶23} Here, the exclusion states that the policy “does not apply to bodily
injury * * * arising out of” an assault or battery. (Emphasis added.) (Assault and
Battery Exclusion, p. 1). Further, it excludes any bodily injury arising out of the
failure to prevent or stop an assault or battery, or the negligent supervision,
training, or retention of anyone that should have prevented or stopped an assault
and battery. Here, Larschied does not claim that the exclusion is ambiguous.
Instead, he argues that the exclusion does not apply to the allegations in the
complaint.
{¶24} For an exclusion that uses the term “arising out of” to apply, there
must be a causal relationship between the injury and what is excluded. See Penn
Traffic Co. v. AIU Ins. Co., 99 Ohio St. 3d 227, 2003-Ohio-3373, ¶ 41 (applying
exclusion for injuries arising out of employment, where injuries occurred during
course of employment); see also Westfield Ins. Co. v. Hunter, 128 Ohio St. 3d 540,
2011-Ohio-1818, ¶ 25-26 (finding exclusion for injuries arising out of uninsured
premises did not apply, where there was no causal relationship between the
premises and the injuries). Thus, whether this exclusion applies turns on whether
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the allegations in claim five have a causal connection to either the assault and
battery itself or the failure to prevent the assault and battery.
{¶25} Here, the Lane’s complaint alleges:
FIFTH CLAIM
(Violation of Policy, Practice or Custom)
***
28. Defendant Larschied, as owner and operator of Harry’s, has
developed and maintained policies, practices, and customs
demonstrating a deliberate indifference to the rights of citizens.
29. Defendant Larschied, as owner and operator of Harry’s, has
failed to implement policies, practices, and customs to protect the
rights of citizens. As a result, the employees working security at
Harry’s have been inadequately trained in the proper duty of care
owed to patrons.
30. Such policies, practices, and customs have caused plaintiff to
suffer a loss of his right to be free from assault and battery
committed against him and resultant physical injury by defendant
Nichols.
(Complaint, p. 4).
{¶26} While the legal nature of what constitutes a violation of policy,
practice or custom may be unclear, an obtuse title of a claim does not prevent our
ability to determine whether the allegations trigger an exclusion under the policy.
The allegations specifically state that the injuries are a result of Larschied’s failure
to adequately train his security, which resulted in their failure to prevent the
underlying assault and battery. Thus, the injuries alleged in the claim have a
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causal connection both to the assault and battery itself and to the alleged failure of
Larschied to prevent the assault and battery. As this claim “arises out of” the
assault and battery and a failure to prevent the assault and battery, it does not, even
arguably, trigger coverage under the policy. It is specifically excluded.
{¶27} Further, assuming arguendo that the complaint includes a claim of a
concurrent cause of injury that is not specifically excluded, Cincinnati Insurance
would still have no duty to defend. Where there is a concurrent cause to an injury
it “does not change the fact that [the] injury was the result of an assault and
battery, the very thing the policy excludes from coverage.” Sphere Drake, 80
Ohio App. 3d at 510. When analyzing similar assault and battery exclusions, other
courts have reached a similar conclusion under comparable circumstances. See
Williams v. United States Liab. Ins. Group, 5th Dist. Stark No. 2011 CA 00252,
2012-Ohio-1288, ¶ 15; see also Carter, 2007-Ohio-4322 at ¶ 29.
{¶28} In Williams, a bar patron tried to leave the premises when she
witnessed the beginnings of a fight. Id. at ¶ 2. However, she was unable to leave
through the nearest exit, as it was blocked by the equipment of the disc jockey. Id.
When she attempted to leave through another exit, she inadvertently became a part
of the melee she had been trying to avoid. Id. After she had obtained a consent
judgment in a lawsuit against the bar, she attempted to recover from the bar
owner’s insurance policy through a declaratory judgment action. Id. at ¶ 4-5. The
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trial court granted summary judgment in favor of the insurance company. Id. at ¶
6. On appeal, the patron argued that the policy, which contained a similar
exclusion, did not exclude a claim for damages arising out of the negligent
blocking of an exit. Id. at ¶ 12-13. The appellate court disagreed, finding that
reasonable minds could only determine that despite [the patron’s]
claims of negligence against [the bar], the injuries claimed by [the
patron] were “based on” the chain of events stemming from a
physical altercation between other persons in the pub, as well as
alleged omissions by [the bar’s] employees in connection with the
suppression of an assault or battery on the premises, thus falling
under the * * * policy exclusion at issue.
Id. at ¶ 15. As a result, the insurance company had no obligation to indemnify the
insured under the policy. Id.
{¶29} In Carter, a bar patron was shot and sued the owner. Carter at ¶ 1-2.
The insurance company refused to defend the action, and the bar owner filed a
declaratory judgment action. Id. at ¶ 3. The owner alleged that an assault and
battery exclusion similar to the one in the case sub judice “did not apply to
exclude coverage for allegations based upon negligent security, failure to warn, or
failure to provide reasonable security measures. Id. at ¶ 27. The appellate court
disagreed, finding that “[e]ven though the complaint contained allegations of
negligent hiring, failure to warn, and failure to provide adequate security, coverage
under the policy was barred because the excluded act of assault and battery was
the immediate cause of the injuries that gave rise to the allegations of negligence.”
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Id. at ¶ 29. As coverage was precluded under the policy for the shooting, the
insurer had not duty to defend. Id. at ¶ 33.
{¶30} Similarly, here the injuries claimed in Lane’s complaint all arise out
of the assault and battery. Therefore, any concurrent cause of the damage that
arose from that assault and battery, whether it be for negligent infliction of
emotional distress, violation of policy, practice or custom, or any other cause, is
specifically excluded under the policy. As the only allegations in the complaint
are for injuries arising out of an assault and battery, they are all excluded under the
terms of the policy. As a result, we find that the complaint does not contain any
allegations which trigger coverage or arguably trigger coverage. Without any
possible trigger of coverage in any of the allegations in the complaint, Cincinnati
Insurance had no duty to defend Larschied under the circumstances of this case.
{¶31} Accordingly, we overrule Larschied’s first assignment of error.
Assignment of Error No. II
{¶32} In his second assignment of error, Larschied argues that if the
exclusion bars recovery under the circumstances of this case, the contract is
illusory. We disagree.
{¶33} “An insurance provision is illusory when it appears to grant a benefit
to the insured, although in reality it does not.” Beaverdam Contracting, 2008-
Ohio-4953 at ¶ 49. However, where the insurance contract contains some
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coverage for the insured, it is not illusory. See Ward v. United Foundries, Inc.,
129 Ohio St. 3d 292, 2011-Ohio-3176, ¶ 24. So long as an exclusion does not
eliminate all coverage under a policy, it will not render the policy illusory.
Compare World Harvest Church v. Grange Mut. Cas. Co., 10th Dist. Franklin No.
13AP-290, 2013-Ohio-5707, ¶ 53 (finding that insurance contract was not illusory
as some insurance coverage under policy still existed beyond the exclusion for
abuse and molestation) with Coleman v. Progressive Preferred Ins. Co., 1st Dist.
Hamilton No. C-070779, 2008-Ohio-3568, ¶ 13 (finding that exclusion eliminating
all coverage made the policy illusory).
{¶34} Here, the exclusion is limited to claims that arise out of an assault
and battery. Damages for bodily injury or property damage that are not caused by
an assault and battery are still covered, so long as an insured is legally obligated to
pay those damages. As argued by Cincinnati Insurance in its brief, “if a patron
were to slip and fall at the premises and sue Harry’s, [Cincinnati Insurance] would
provide a defense to Harry’s for its negligence.” (Appellee’s Br., p. 13). We
agree that, under those circumstances, insurance coverage would be triggered
under the policy.3 As a result, we cannot say that the policy provided no coverage
3
We note that Cincinnati Insurance provided other examples of how the duty to defend would attach under
the policy, including an allegation of getting sick from eating the food. However, determining whether
getting sick from eating the food would trigger coverage involves making determinations as to how
exclusions for communicable, contagious and infectious disease as well as for microorganisms, biological
organisms, bioaerosols and organic contaminants, interact with an exclusion for fungi and bacteria that
exempts from the exclusion bodily injury from fungi and bacteria found on food. As the negligence claim
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to Larschied, or that the exclusion eliminated all coverage. Therefore the policy is
not illusory.
{¶35} Accordingly, we overrule Larschied’s second assignment of error.
{¶36} Having found no error prejudicial to the Larschied, in the particulars
assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILIAMOWSKI, P.J. and SHAW, J. concurs.
/jlr
does not appear to be affected by exclusions in the policy, it is at least one situation where the duty to
defend would attach from the outset without further inquiry.
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