Sherwin-Williams Co. v. Certain Underwriters at Lloyd's London , 2022 Ohio 3031 ( 2022 )

[Cite as Sherwin-Williams Co. v. Certain Underwriters at Lloyd's London, 2022-Ohio-3031.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
THE SHERWIN-WILLIAMS :
COMPANY,
No. 110187
Plaintiff-Appellant/ :
Cross-Appellee,
v. :
CERTAIN UNDERWRITERS AT
LLOYD’S LONDON, ET AL., :
Defendants-Appellees/ :
Cross-Appellants.
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: September 1, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-06-585786
Appearances:
Jones Day, Mark J. Andreini, and John E. Iole, pro hac
vice; Hilow & Spellacy and James R. Wooley, for
appellant.
Burns, White L.L.C., Kevin C. Alexandersen, Daniel J.
Michalec, and Brooke L. Hamilton; Charles E. Spevacek,
for appellee and cross-appellant Great American
Insurance Company.
Cavitch, Familo & Durkin Co., LPA and Gregory E.
O’Brien; Shipman & Goodwin LLP, James P. Ruggeri,
Joshua D. Weinberg, and Joshua P. Mayer, pro hac vice,
for appellees and cross-appellants First State Insurance
Company, Nutmeg Insurance Company, and Twin City
Fire Insurance Company.
Isaac Wiles & Burkholder & Teetor, LLC, and Jay B.
Eggspuehler; Mendes & Mount, LLP, Matthew B.
Anderson, and Daniel J. Wityk, pro hac vice, for appellee
and cross-appellant Certain London Market Companies.
Kaufman, Drozdowski & Grendell LLC and Arthur
Kaufman; CNA Coverage Litigation Group and Edward J.
Tafe, pro hac vice: Dentons US L.L.P., M. Keith
Moskowitz, Kristen C. Rodriguez, and Shannon Y. Shin,
pro hac vice, for appellees and cross-appellants Columbia
Casualty Company, Continental Casualty Company, The
Continental Insurance Company.
Marshall, Dennehey, Warner, Coleman & Goggin and
David J. Fagnilli; Clyde & Co US, Paul Koepff, pro hac vice,
and Ryan Winchester; O’Malveny & Myers and Jonathan
Hacker, pro hac vice, for appellees and cross-appellants
Century Indemnity Company, Westchester Fire Insurance
Company, and Federal Insurance Company.
McCarthy, Lebit, Crystal & Liffman Co., LPA and David A.
Schaefer; Zuckerman, Spader LLP, Carl S. Kravitz,
Caroline E. Reynolds, and Nicholas M. DiCarlo, pro hac
vice; Kohrman, Jackson & Krantz, LLP, and Maribeth
Meluch, for appellees and cross-appellants Certain
Underwriters at Lloyd’s London; World Marine and
General Insurance Corporation Ltd.; World Auxiliary
Insurance Company Ltd.; The Victory Insurance
Company Ltd.; New London Reinsurance Company Ltd.;
Scottish Lion Insurance Company Ltd.; Winterthur Swiss
Insurance Company; Yasuda Fire & Marine Insurance
Company (UK) Ltd.; Yasuda UK; Lamorak Insurance
Company; Government Employee Insurance Company;
and Berkshire Hathaway Direct Insurance Company.
Roetzel & Andress, LPA, Emily K. Anglewicz, and Bradley
L. Snyder; McCarthy, Lebit, Crystal & Liffman Co., LPA
and David A. Schaefer; Zuckerman Spader LLP, Carl S.
Kravitz, Caroline E. Reynolds, and Nicholas M. DiCarlo;
Walker Wilcox Matousek LLP, Robert P. Conlon, and Alla
Cherkassky Galati, for appellee and cross-appellant
Westport Insurance Corporation.
Weston | Hurd LLP and Gary W. Johnson; Crowell &
Moring LLP and Laura A. Foggan, pro hac vice, for
appellees and cross-appellants TIG Insurance Co., North
River Insurance Company, Mt. McKinley Insurance Co.,
and United States Fire Insurance Co., and American
Alternative Insurance Corporation.
Aronberg Goldgehn Davis & Garmisa, Lisa J. Brodsky and
Mithcell S. Goldgehn, pro hac vice, for appellee and cross-
appellant Allstate Insurance Company.
William & Silvaggio and Anna M. Sossa, for appellee and
cross-appellant, Employers Mutual Casualty Company.
Roetzel & Andress, LPA, and Ronald B. Lee; Chaffetz
Lindsey LLP, Charles J. Scibetta, and Theordore R.
DeBonis, pro hac vice, for appellee and cross-appellant
American Home Assurance Company, Lexington
Insurance Company, National Union Fire Insurance
Company of Pittsburgh, PA, and The Insurance Company
of the State of Pennsylvania.
MARY J. BOYLE, P.J.:
{¶ 1} The crux of this insurance coverage case is whether The Sherwin-
Williams Company’s (“Sherwin-Williams”) insurers1 (collectively “Insurers”) will
1 The Insurers are Certain Underwriters at Lloyds, London; All Co. Listed After
Allianz G.R. US. Ins. Co.; Allianz Global Risks US Ins. Co.; Allstate Ins. Co.; American
Alternative Ins. Co.; American Casualty Co. of Reading, Pennsylvania; American Home
Assurance Co.; American Zurich Ins. Co.; Arrowood Indemnity Co.; Central National Ins.
Co. of Omaha; Century Indemnity Co.; Certain Underwriters at Lloyds, London and
Certain London Market Cos.; Employers Mutual Casualty Co.; First State Ins. Co.; Great
American Ins. Co.; Gulf Ins. Co.; Illinois Exchange; Kemper Ins. Co.; Lamorak Ins. Co.;
cover Sherwin-Williams’ liability arising from litigation in Santa Clara County,
California for the abatement of lead paint used in California residences. Sherwin-
Williams and two other paint manufacturers, NL Industries, Inc. (“NL”) and
ConAgra Grocery Products Company (“ConAgra”), were ordered to pay over $400
million into an abatement fund (“the Abatement Fund”) to be used by California
cities and counties to mitigate the hazards caused by lead paint in homes predating
1951, including identifying lead hazards, removing lead dust, and preventing further
deterioration of lead paint.2 Cty. of Santa Clara v. Atlantic Richfield Co., 137
Cal.App.4th 292, 40 Cal.Rptr.3d 313 (2006) (“Santa Clara I”) and People v.
ConAgra Grocery Prods. Co., 17 Cal.App.5th 51, 227 Cal.Rptr.3d 499 (2017) (“Santa
Clara II”) (collectively the “Santa Clara Action”). The insurance coverage issue has
not yet been litigated in Ohio but has been litigated in two other jurisdictions —
Certain Underwriters at Lloyd’s London v. ConAgra Grocery Prods. Co., LLC, 77
Cal.App. 5th 729, 292 Cal.Rptr.3d 712 (2022) (“the ConAgra Action”) in California
and Certain Underwriters at Lloyd’s London v. NL Industries, Inc., N.Y. App.No.
650103/2014, 2020 N.Y. Misc. LEXIS 10905 (Dec. 29, 2020) (“NL I”) and Certain
Mt. McKinley Ins. Co.; National Union Fire Ins. Co. of Pittsburg, Pennsylvania; North
River Ins. Co.; Nutmeg Ins. Co.; Travelers Casualty & Surety Co.; Westport Ins. Co.; and
Westport Ins. Corp.
2 The total amount to be paid into the fund was reduced to $401,122,482 after an
offset for payment by another lead paint manufacturer no longer in the case. On July 10,
2019, the parties executed a settlement agreement under which ConAgra, NL, and
Sherwin-Williams “each agreed to pay $101,666,666 in full satisfaction of any and all
claims.” Certain Underwriters at Lloyd’s London v. ConAgra Grocery Prods. Co., LLC,
77 Cal.App. 5th 729, 292 Cal.Rptr.3d 712, 729 (2022).
Underwriters at Lloyd’s, London v. NL Industries, Inc., 164 N.Y.S.3d 607, 203 A.D.
3d 595 (2022) (“NL II”) (collectively the “NL Action”) in New York.
{¶ 2} In the case at hand, Sherwin-Williams filed a motion for partial
summary judgment against National Union Fire Insurance Company of Pittsburgh,
Pa. (“National Union”), asking the court to declare coverage for liability in the Santa
Clara Action under a single insurance policy. According to Sherwin-Williams, it
chose this single policy to “respond first” under the authority of Goodyear Tire &
Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-2842, 769
N.E.2d 835, ¶ 12 (The plaintiff “should be permitted to choose, from the pool of
triggered primary policies, a single primary policy against which it desires to make
a claim. In the event that this policy does not cover [the plaintiff’s] entire claim, then
[the plaintiff] may pursue coverage under other primary or excess insurance
policies.”).
{¶ 3} The Insurers also filed for summary judgment, asking the court to
declare that there is no coverage under the multiple policies issued to Sherwin-
Williams for liability in the Santa Clara Action. Additionally, the parties filed a joint
statement of undisputed facts. On December 4, 2019, the trial court granted
summary judgment in favor of the Insurers. We find the decisions in the NL Action
more persuasive and conclude that the trial court erred by granting the Insurers’
motions for summary judgment. Therefore, we reverse and remand.
I. Relevant Background
A. The Santa Clara Action
1. Santa Clara I
{¶ 4} In March 2000, Santa Clara County brought an action against
Sherwin-Williams and other manufacturers and promoters of lead paint, including
NL and ConAgra, in Santa Clara I. Multiple California governmental entities joined
the lawsuit, and the complaint was amended on several occasions, alleging claims
for strict product liability, negligence, and fraud. The plaintiffs also alleged two
public nuisance claims (1) on behalf of a class of California municipalities (“the class
public nuisance claim”) and (2) on behalf of people of the state of California (“the
representative public nuisance claim”).3 The plaintiffs sought damages and
abatement of the public nuisance. Eventually, the Santa Clara I Court granted
summary judgment for Sherwin-Williams and the other companies that produced
lead paint on the majority of the claims and granted the defendants’ demurrer as to
the two public nuisance claims.4 The plaintiffs appealed.
{¶ 5} On appeal, the court affirmed the dismissal of the class public
nuisance claim, but reversed the grant of the demurrer as to the representative
3 The representative public nuisance claims alleged that lead is present in homes,
buildings, and other property throughout the state of California. As the remedy, the
counties sought abatement on behalf of the People, not reimbursement for specific
property damage, bodily injury, or costs of remediation. Santa Clara I at 309.
4 “‘A demurrer tests the sufficiency of the plaintiff’s complaint, i.e., whether it
states facts sufficient to constitute a cause of action upon which relief may be based.’”
Two Jinn, Inc. v. Govt. Payment Serv., Inc., 233 Cal.App.4th 1321, 1343, 183 Cal.Rptr.3d
432 (2015), quoting Young v. Gannon, 97 Cal.App.4th 209, 213, 118 Cal.Rptr.2d 187(2002).
public nuisance claim. The appellate court ordered the lower court to “(1) vacate its
order sustaining the demurrer to the representative public nuisance claim in the
third amended complaint and enter a new order overruling the demurrer to that
cause of action, and (2) vacate its order granting summary judgment and enter a
new order granting summary adjudication on the [unfair business practices] cause
of action and denying summary adjudication on the negligence, strict liability and
fraud causes of action.” Santa Clara I at 333.
{¶ 6} In reinstating the representative public nuisance claim, the Santa
Clara I Court differentiated the representative claim from the class claim. The court
stated, “[h]ere, the representative cause of action is a public nuisance action brought
on behalf of the People seeking abatement. Santa Clara, [San Francisco], and
Oakland are not seeking damages for injury to their property or the cost of
remediating their property.” Id. at 309. The court then distinguished a
representative public nuisance claim, which seeks “future abatement,” from a
products liability claim, which “does not provide an avenue to prevent future harm
from a hazardous condition.” Id. at 310. The court noted that the actionable conduct
for the representative public nuisance claim is “distinct from and far more egregious
than simply producing a defective product or failing to warn of a defective product.”
Id. at 309. The court likened a nuisance claim “to instructing the purchaser to use
the product in a hazardous manner.” Id.{¶ 7} In January 2014, after a trial on the sole claim, the lower court issued
a decision finding Sherwin-Williams and codefendants, ConAgra and NL, jointly
and severally liable and ordering them to abate the nuisance. In March 2014, the
court amended its decision and issued a judgment requiring Sherwin-Williams, NL,
and ConAgra to pay $1.15 billion into the Abatement Fund, which was later reduced
to $401,122,482.5
2. Santa Clara II
{¶ 8} Sherwin-Williams and other lead paint defendants who were found
liable appealed the judgment, raising several challenges to their liability, including
that the judgment was “not supported by substantial evidence of knowledge,
promotion, causation, or abatability.” Santa Clara II, 17 Cal.App.5th at 66, 227
Cal.Rptr.3d 499 (2017).
{¶ 9} The Santa Clara II Court addressed the evidence collected by the
lower court concerning the sale of lead paint, its extensive use in homes in the ten
jurisdictions at issue in the lawsuit, and the health hazards posed by lead paint to
the children in those homes. The Santa Clara II Court noted that in many of the
represented counties, lead poisoning from lead paint is the number one
environmental health issue affecting children. Id. at 74-76. The court stated:
[c]hildren in the 10 jurisdictions are continuing to be exposed to lead
from the lead paint in their homes and to suffer deleterious effects from
that lead. Although only a small percentage of the children in these
jurisdictions are screened for lead, thousands of children are found to
have BLLs [blood lead levels] of concern each year.
Id. at 74.
5This sum includes “an offset for payment by another lead paint manufacturer no
longer in the case[.]” The ConAgra Action, 77 Cal. App. 5th at 737, 292 Cal.Rptr.3d 712(2022).
{¶ 10} The Santa Clara II Court affirmed, as it did in Santa Clara I, that
“[c]onstructive knowledge would not be sufficient to support plaintiff’s public
nuisance cause of action” and that the standard set in Santa Clara I was “actual
knowledge.” Id. at 83. Thus, “[l]iability [wa]s premised on defendants’ promotion
of lead paint for interior use with knowledge of the hazard that such use would
create.” Id. (Emphasis sic.)
{¶ 11} The court acknowledged the trial court’s findings that Sherwin-
Williams, ConAgra, and NL had ‘“actual knowledge of the hazards of lead paint —
including childhood lead poisoning’ when they produced, marketed, sold, and
promoted lead paint for residential use” and that “defendants ‘learned about the
harms of lead exposure through association-sponsored conferences’”; they “knew in
the 1930s that ‘the dangers of lead paint to children were not limited to their toys,
equipment, and furniture’”; they knew “both that ‘high level exposure to lead — and
in particular, lead paint — was fatal’ and that ‘lower level lead exposure harmed
children’”; and “by the 1920s, defendants knew that ‘lead paint used on the interiors
of homes would deteriorate and that lead dust resulting from this deterioration
would poison children and cause serious injury.’” Id. at 84-85, quoting the March
26, 2014 Superior Court decision. The trial court’s express findings made clear that
the “‘harms’ and ‘hazards’ of which defendants had actual knowledge included that
(1) ‘lower level lead exposure harmed children,’ (2) ‘lead paint used on the interiors
of homes would deteriorate,’ and (3) ‘lead dust resulting from this deterioration
would poison children and cause serious injury.’” Id. at 85, quoting the March 26,
2014 Superior Court decision.
{¶ 12} As for the remedy, the Santa Clara II Court noted that ‘“[a]n
abatement of a nuisance is accomplished by a court of equity by means of an
injunction proper and suitable to the facts of each case.”’ Id. at 132, quoting Sullivan
v. Royer, 72 Cal. 248, 249, 13 P. 655 (1887). The court further stated:
While damages may be available in both public and private nuisance
actions, damages are not an available remedy in the type of public
nuisance action that was brought by plaintiff in this case, a
representative public nuisance action. “[A]lthough California’s general
nuisance statute expressly permits the recovery of damages in a public
nuisance action brought by a specially injured party, it does not grant a
damage remedy in actions brought on behalf of the People to abate a
public nuisance.”
(Brackets sic.) Id. at 122, quoting Koll-Irvine Ctr. Property Owners Assn. v. Cty. of
Orange, 24 Cal.App.4th 1036, 1041, 29 Cal.Rptr.2d 664 (1994).
{¶ 13} Furthermore, the Santa Clara II Court rejected the lead paint
defendants’ argument that the Abatement Fund was “a thinly-disguised damages
award” for unattributed past harm to private homes. Id. at 132. Rather, the court
held that
An abatement order is an equitable remedy, while damages are a legal
remedy. An equitable remedy’s sole purpose is to eliminate the hazard
that is causing prospective harm to the plaintiff. An equitable remedy
provides no compensation to a plaintiff for prior harm. Damages, on
the other hand, are directed at compensating the plaintiff for prior
accrued harm that has resulted from the defendant’s wrongful conduct.
The distinction between these two types of remedies frequently arises
in nuisance actions. Generally, continuing nuisances are subject to
abatement, and permanent nuisances are subject to actions for
damages. As Code of Civil Procedure section 731 permits a public entity
plaintiff to seek abatement of a public nuisance in a representative
action, the trial court could properly order abatement as a remedy in
this case.
Id. at 132-133. (Internal citation omitted.)
{¶ 14} The Abatement Fund ordered by the trial court complied with this
standard because the plaintiffs “did not seek to recover for any prior accrued harm
nor did [they] seek compensation of any kind.” Id. at 133. Rather, the deposits that
the trial court required defendants to make into the Abatement Fund “would be
utilized not to recompense anyone for accrued harm but solely to pay for the
prospective removal of the hazards defendants had created.” Id.
{¶ 15} With regard to homes built post-1950, the Santa Clara II Court
agreed with the defendants’ claim that the record lacked substantial evidence to
support the trial court’s finding that their wrongful promotions were causally
connected to post-1950 homes containing interior lead paint. The court stated,
While we can accept the inference that defendants’ pre-1951
promotions increased the use of lead paint on residential interiors
during the period of those promotions, we reject plaintiff’s claim that it
is a reasonable inference that the impact of those promotions may be
assumed to have continued for the next 30 years. We can find no
evidence in the record that supports an inference that the promotions
of defendants prior to 1951 continued to cause the use of lead paint on
residential interiors decades later. We therefore conclude that we
cannot uphold the trial court’s judgment requiring defendants to
remediate all houses built before 1981 because there is no evidence to
support causation as to the homes built after 1950.
Id. at 106.
{¶ 16} As a result, the Santa Clara II Court reversed the judgment and
remanded the matter back to the trial court to “(1) recalculate the amount of the
abatement fund to limit it to the amount necessary to cover the cost of remediating
pre-1951 homes, and (2) hold an evidentiary hearing regarding the appointment of
a suitable receiver.” Id. at 169.
{¶ 17} Sherwin-Williams and the other defendants attempted to have the
Santa Clara II decision reviewed by the California Supreme Court and the United
States Supreme Court, but both courts denied their petitions. See People v. ConAgra
Grocery Products Co.; The Sherwin-Williams Co., 2018 Cal. LEXIS 1277 (2018),
and ConAgra Grocery Prods. v. California, 139 S.Ct. 377, 202 L.Ed.2d 288 (2018).
B. The ConAgra Action
{¶ 18} In the interim, just after the trial court filed its decision in the Santa
Clara Action in January 2014, ConAgra’s insurers filed a first amended complaint
for declaratory relief, seeking a determination that they had no coverage obligation
to ConAgra with respect to the Santa Clara Action. ConAgra, 77 Cal. App. 5th at
737, 292 Cal.Rptr.3d 712 (2022). The insurers moved for summary judgment
arguing that they had no duty to provide coverage.
{¶ 19} The trial court granted summary judgment in favor of the insurers,
holding that
Insurance Code section 533 precluded coverage as a matter of law
because it “‘precludes indemnification for liability arising from
deliberate conduct that the insured expected or intended to cause
damage’”; “‘willful act of insured’ includes an act ‘intentionally
performed with knowledge that damage is highly probable’” (quoting
Shell Oil Co. v. Winterthur Swiss Ins. Co. (1993) 12 Cal.App.4th 715,
742–743 [15 Cal. Rptr. 2d 815] (Shell Oil)); and courts in the underlying
litigation “clearly and repeatedly found” that “Fuller intentionally
promoted lead paint with knowledge that damage to children was at
least highly probable.” The court specifically rejected ConAgra’s
arguments that it was “only Fuller’s ‘purported’ successor”; that
ConAgra, as successor, could be “‘insulated from its predecessor’s
knowledge’”; that the scienter findings in the underlying litigation were
insufficient to meet the willfulness standard in section 533; that Fuller’s
conduct was merely reckless; that the insurers were required to, and
did not, prove Fuller’s senior managers knew the hazards of lead paint;
and that Santa Clara II erred in requiring remediation of lead paint
applied after 1950 in homes built before 1950.
(Brackets sic.) Id. at 738.
{¶ 20} ConAgra appealed this decision arguing that California law precludes
coverage for losses due to a willful act of “the insured” and ConAgra did not commit
a wrongful act. Id. at 740. The court affirmed the trial court’s judgment, stating that
the underlying litigation established that Fuller — the [predecessor]
corporate entity — had actual knowledge of the harms associated with
lead paint when it promoted lead paint for interior residential use. We
have already concluded that this actual knowledge finding necessarily
means Fuller acted with knowledge that lead paint was “substantially
certain” or “highly likely” to result in the hazard found to exist in the
underlying litigation, and therefore established the willful act required
to trigger section 533 prohibition against insurance coverage.
ConAgra’s argument that the knowledge required for application of
section 533 required proof of what knowledge was held by specific
individuals within the company is in effect a challenge to factual
determinations made in the underlying litigation that are now final and
binding. As we have said, an insurer’s duty to indemnify is determined
by the actual basis of liability imposed on the insured. ([Armstrong
World Industries, Inc. v. Aetna Cas. & Sur. Co., 45 Cal.App.4th 1, 108,
52 Cal.Rptr.2d 690 (1996)].) Since the findings establishing that
liability also establish the willful act required for application of section
533, ConAgra’s position is untenable.
Id. at 752.
C. The NL Action
1. NL I
a. Occurrence
{¶ 21} In NL I, the insurers brought a declaratory judgment action to
determine coverage for NL’s liability arising from the Santa Clara Action. The
defendants moved for summary judgment, seeking a declaration that they have no
coverage obligation to defendant NL.
{¶ 22} The insurers asserted the following three grounds for declaratory
judgment: (1) “NL is not entitled to coverage because it was held liable in the [Santa
Clara] Action for intentionally and affirmatively promoting lead paint for interior
residential use with actual knowledge of the public health hazard that it would
create”; (2) “the policies at issue only cover ‘damages’ or ‘damages and expenses,’
and the abatement remedy ordered in the [Santa Clara] Action is neither”; and (3)
“even if the abatement remedy is deemed as covered ‘damages’ or ‘expenses,’ there
is still no coverage because the policies also require that liability was imposed ‘for,’
‘because of’ or ‘on account of’ ‘property damage’ or ‘bodily injury’ and neither
‘property damage’ nor ‘bodily injury’ were elements of the claim for which NL was
held liable.” NL I, 2020 NY Slip Op 34331(U) at 2. NL, on the other hand, argued
“that it is entitled to coverage for its liability in the [Santa Clara] Action pursuant to
the policies issued or subscribed by plaintiffs, insurer defendants, and nominal
defendants.” Id. at 17.
{¶ 23} Some of the policies submitted by the insurers included language
indicating that harms resulting from “accidents” or “occurrences” are covered.
Certain policies defined an occurrence as
“an accident, including injurious exposure to conditions, which results,
during the policy period, in bodily injury or property damage neither
expected nor intended from the standpoint of the insured” (NYSCEF
387, Summary of Policies at 3 [definition of occurrence 1970-1971
primary policy (Employers Commercial Union Policy No. CLE-Y9004-
663)]; see also id. at 4-5 [definition of occurrence 1978-1979 primary
policy (INA Policy No. SCG1020)]). Another policy defines an
“occurrence” as “(a) an accident, or (b) an event, or continuous or
repeated exposure to conditions, which results during the policy
period, in personal injury, property damage, or advertising liability
(either alone or in combination) neither expected nor intended from
the standpoint of the Insured” (id. at 9 [definition of occurrence 1970-
1973 umbrella policy (Commercial Union Policy No. EY-9004-671)]).
Other policies state that they cover “liability . . . for damages . . . by
reason of Bodily Injury, Personal Injury, Property Damage, [or]
Advertising Injury” “resulting from an Accident” (id. at 13 [1986-1987
excess policy (Lloyd’s Policy 6KA36140)]) and expressly exclude
coverage for injuries or damage ‘which the Insured intended or
expected or reasonably could have expected’” (id. at 15).
Some of the policies only cover awards of “damages” against NL. As to
this issue, NL’s insurance policies fall into two broad categories. The
first includes policies limited to liability imposed as or for “damages.”
Many of these policies cover NL for all sums which [NL] shall be
obligated to pay by the reason of liability . . . for damages” (id. at 11
[1979-1982 umbrella policy (London Policy No. 881/ULL0304)]). The
second group of policies provide coverage both for “damages” and
certain “expenses.” These policies cover sums NL becomes “obligated
to pay by reason of the liability imposed upon [it] by law . . . for damages
. . . and expenses,” (id. at 8 [1970-1973 umbrella policy (Commercial
Union Policy No. EY-9004-671)]) as more fully defined by the term
“ultimate net loss,” which in turn is defined as sums NL must pay (1) by
reason of . . . property damage . . . either through adjudication or
compromise,” and (2) as “expenses . . . for litigation, settlement,
adjustment, and investigation of claims and suits.” (id.; see also id. at
11 [1979-1982 umbrella policy (London Policy No. 881/ULL0304)]).
(Brackets sic.) NL I at 18-20.
{¶ 24} The NL I Court addressed the meaning of the terms “expected or
intended harms” and “damages or expenses.” With regard to the “intentional and
expected acts,” the insurers argued that NL is not entitled to coverage because it was
held liable in the [Santa Clara] Action for promoting lead paint with the actual
knowledge that it would cause harm. The Insurers asserted that under the language
of the policies at issue and the fortuity doctrine, coverage is not available for an
expected or intended harm. Id. at 26.6
{¶ 25} The NL I Court noted that not all the policies contained an expected
or intended harm exclusion, and to determine whether NL is seeking coverage for
an occurrence or accident that unintentionally or unexpectedly resulted in injury,
the court must consider what conduct supported a finding of liability in the Santa
Clara Action. Id. at 33. The court reasoned that, under New York Law, what ‘“makes
injuries or damages expected or intended rather than accidental are the knowledge
and intent of the insured. It is not enough that an insured was warned that damages
might ensue from its actions, or that, once warned, an insured decided to take a
calculated risk and proceed as before[.]’” Id. at *31-32, quoting Johnstown v.
Bankers Std. Ins. Co., 877 F.2d 1146, 1150 (2d Cir.1989).
6 “‘“Broadly stated, the fortuity doctrine holds that “insurance is not available for
losses that the policyholder knows of, planned, intended, or is aware are substantially
certain to occur”’ (Chase Manhattan Bank v New Hampshire Ins. Co., 193 Misc 2d 580,
587, 749 N.Y.S.2d 632 [Sup Ct, NY County 2002], quoting Barry R. Ostrager & Thomas
R. Newman, Handbook on Insurance Coverage Disputes § 8.02, at 248 [5th ed. 1991]).
New York has codified a narrower version of the doctrine (id.; see New York Insurance
Law § 1101 [a]).” (Brackets sic.) NL I at *37.
{¶ 26} The court noted that “‘it is a well-established insurance principle that
there can be liability coverage for an insured’s liability arising out of his own
intentional act if the resulting injury or damage caused was not intended.’ (id.).” Id.
at *32. The NL I Court stated,
“In attempting to define what events are ‘accidental,’ the New York
courts have focused on the nexus between an intentional act and the
resulting damage. As this court has observed, the distinction is drawn
between ‘damages which flow directly and immediately from an
intended act, thereby precluding coverage, and damages which
accidentally arise out of a chain of unintended though expected or
foreseeable events that occurred after an intentional act. Ordinary
negligence does not constitute an intention to cause damage; neither
does a calculated risk amount to an expectation of damage[.]’”
(City of Johnstown, N.Y., 877 F.2d at 1150 [citations omitted]). “[I]t is
not legally impossible to find accidental results flowing from
intentional causes, i.e., that the resulting damage was unintended
although the original act or acts leading to the damage were
intentional” (Atlantic Cement Co.Fidelity and Cas. Co. of N.Y., 91
AD2d 412, 417-418, 459 N.Y.S.2d 425 [1st Dept 1983] [citation
omitted]; see also Slayko v Security Mut. Ins. Co., 98 N.Y.2d 289, 293,
774 N.E.2d 208, 746 N.Y.S.2d 444 [2002] [citation omitted]
[“insurable ‘accidental results’ may flow from ‘intentional causes’”]).
The general rule remains that “more than a causal connection between
the intentional act and the resultant harm is required to prove that the
harm was intended” (Slayko, 98 NY2d at 293 [internal quotation
marks and citation omitted]).
(Brackets sic.) Id. at 32-33.
{¶ 27} The NL I Court further noted that “‘[t]he duty to defend is measured
against the allegations of pleadings but the duty to pay is determined by the actual
basis for the insured’s liability to a third person[.]’” Id. at 33, quoting Servidone
Constr. Corp. v. Security Ins. Co. of Hartford, 64 N.Y.2d 419, 424, 477 N.E.2d 441,
488 N.Y.S.2d 139 (1985). The NL I Court reasoned:
In Santa Clara II, the Court of Appeal acknowledged the Superior
Court’s findings that NL “‘learned about the harms of lead exposure
through association-sponsored conferences’”; “knew in the 1930s that
‘the dangers of lead paint to children were not limited to their toys,
equipment, and furniture’”; knew “both that ‘high level exposure to
lead — and in particular, lead paint — was fatal’ and that ‘lower level
lead exposure harmed children’”; and that “by the 1920s, defendants
knew that ‘lead paint used on the interiors of homes would deteriorate
and that lead dust resulting from this deterioration would poison
children and cause serious injury.’” (17 Cal App 5th at 85, quoting the
March 26, 2014 Superior Court decision). The Superior Court found
that NL obtained this knowledge through its review of scientific and
medical literature, certain trade associations’ communications and
meetings, and its own experiences (NYSCEF 380, Trial Court’s
Amended Statement of Decision at 29). NL even “employed medical
doctors who were well aware of the hazards of lead paint and tracked
the medical literature on this subject” (id.). The Court of Appeal held
that these findings supported the trial court’s determination that NL
must have known by the early 20th Century that lead paint posed a very
serious risk (17 Cal App 5th at 85).
The Court of Appeal also acknowledged the Superior Court’s finding
that NL affirmatively promoted lead paint for interior use despite
knowing of the dangers. The Court of Appeal upheld this finding
stating
“[s]ubstantial evidence supports the trial court’s finding that NL
affirmatively promoted lead paint for interior residential use with the
requisite knowledge. NL extensively promoted its lead paint for
interior residential use from 1915 through 1950. Because NL knew of
the danger to children from lead paint on residential interiors no later
than 1914, substantial evidence supports the trial court’s finding that
NL’s subsequent promotions of lead paint for such use were done with
the requisite knowledge”
(id. at 99). The California Courts did not specifically address whether
NL intended the damage as result of its actions. In fact, in Santa Clara
II, the Court of Appeal stated that NL must have known that lead paint
posed a serious risk of harm.
(Brackets sic.) NL I at *33-35.
{¶ 28} Because of the distinction between knowledge of the risk of hazardous
consequences of one’s actions and the intention to cause harm under New York law,
the NL I Court found that the insurers failed to meet their burden to exclude
coverage on the basis of “expected or intended harms” and failed to make a prima
facie case that NL’s conduct is uninsurable under policies containing the exclusion.
Id. at *35.7 The NL I Court found “there is no evidence demonstrating an intent to
cause harm when NL promoted the lead paint[.]” NL I at 38. As a result, the court
found that the insurers did not meet their burden to exclude coverage. Id. at *37-
38.
b. Damages
{¶ 29} With regard to damages, the insurers argued that the Abatement
Fund cannot be construed as “damages” under the policies. They further argued
“that the abatement fund ordered in the [Santa Clara] Action is not an award to
7In support of its reasoning, the NL I Court cited to Atlantic Cement Co. v. Fid. &
Cas. Co., 91 A.D.2d 412, 459 N.Y.S.2d 425 (1983), where
the First Department held that Atlantic was entitled to indemnification for
the damages recovered against it in the underlying action, as those damages
were “accidentally caused” (91 AD2d at 417). Of Atlantic’s liability, the Court
found that
“[w]hile it cannot be gainsaid that Atlantic intended to operate its cement
plant at Ravena, that does not mean that they thereby ‘intended’ to cause
damage to the property of the surrounding landowners, nor on its record can
it be said that it was substantially certain that such damage would result from
the operation of this plant[.]”
(id.).
(Brackets sic.) Id. at 36.
compensate the government for its losses, but rather, it is a remedy to prevent future
harm.” Id. at 38. The insurers further argued that “the abatement fund qualifies as
a prophylactic remedy, which is not covered under the language of the policy.” Id.
{¶ 30} In opposition, NL argued that that many of the insurance policies at
issue do not even contain “as damages” language and “the monies they paid to the
abatement fund do qualify as damages, because the only requirement of any
judgment in the [Santa Clara] Action was that NL pay money; there was no
injunctive relief, fine, penalty, restitution, punitive damages or exemplary damages
assessed against NL.” Id. NL further emphasized “the fact that the policies do not
expressly exclude coverage for payment of abatement.” Id.
{¶ 31} The court went on to analyze whether the payment into the
Abatement Fund constituted covered damages for insurance recovery purposes.
The NL I Court concluded that the Abatement Fund had a compensatory effect,
which qualified as damages under the applicable law and insurance policies. Id. at
42-46. The court noted that other courts have held that a company’s payment to
help clean up environmental pollution constitutes damages. The court also found
that the payment could be reasonably tied to bodily injury or property damage
because there was a connection between the physical injuries or property damage
and the promotion of the lead paint. The NL I Court stated,
“The tests to be applied in construing an insurance policy are common
speech and the reasonable expectation and purpose of the ordinary
business[person]” (Ace Wire Cable Co. v Aetna Cas. & Sur. Co., 60
NY2d 390, 398, 457 N.E.2d 761, 469 N.Y.S.2d 655 [1983] [citations
omitted]). “If the policy is ambiguous in this respect, any doubt or
uncertainty in its meaning should be resolved against the defendant
[insurer]” (Perth Amboy Drydock Co. v New Jersey Mfrs. Ins. Co., 26
AD2d 517, 518 [1st Dept 1966]). Construing “damages” against the
Insurers would result in coverage for the abatement costs incurred by
NL. Here, an ordinary businessperson reading the policies at issue
would believe coverage exists for NL’s liability, and NL’s liability under
the California public nuisance statute constitutes “damages” under the
relevant policy language.
***
[C]ourts determining coverage have included in the ordinary dictionary
definition of “damages” equitable relief, encompassing the costs of
government expenditures for environmental cleanup (see Avondale
Indus., Inc. v Travelers lndem. Co., 887 F.2d 1200, 2008 [2d Cir 1989]
[“Damages, as the district court said, may ‘include funds necessary for
restoration of third parties’ properties”]; American Motorists Ins. Co.
v Leve/or Lorentzen, Inc., 1988 WL 112142, 1988 U.S. Dist. LEXIS
11631, *10-11 [2d Cir 1988] [applying New York law]; Sherwin-
Williams Co. v Certain Underwriters at Lloyd’s London, 813 F Supp
576, 587 [ND OH 1993] [holding that abatement cost claims fell within
the London Market Insurers’ coverage for property damage because
harm, caused by lead paint, had been done to the New Orleans Housing
Authority’s buildings, requiring remedial steps to make them safely
habitable]).
(Brackets sic.) Id. at 39-40.
{¶ 32} The NL I Court reasoned that even though the Abatement Fund in the
Santa Clara Action is technically injunctive relief, this injunctive relief serves
substantially the same purpose as reimbursing the government’s costs in responding
to the lead paint hazard. Id. at *41. Because the Abatement Fund was not strictly
intended to prevent harm, but rather paid to the government to reimburse monies
depleted by its ongoing efforts to remediate the longstanding contamination of
houses and buildings by lead paint in California, the NL I Court concluded that the
Abatement Fund qualifies as damages under the applicable policies. Id. at 44-45.
{¶ 33} As to the insurers’ argument that “NL is not entitled to coverage since
the certain policies require that coverage be for damages or liability that is imposed
for, or because of, or on account of property damage, personal injury, bodily injury
or advertising injury[,]” the NL I Court agreed that property damage and bodily
injury are not elements of the representative public nuisance claim, but found that
“there is a connection between the lead poison injuries to the children residing in
the buildings containing the lead paints promoted by NL and the property damage
to those buildings as a result of NL’s promotion of lead paint.” Id. at 46, 48. As a
result, the NL I Court denied the insurers’ motion for summary judgment. Id. at 49.
2. NL II
{¶ 34} In NL II, the court affirmed the NL I Court’s decision denying the
insurers’ motion for summary judgment seeking a declaration that they had no
obligation to cover the Abatement Fund ordered in Santa Clara II. The NL II Court
affirmed the NL I Court’s finding that there was no evidence demonstrating an
intent to cause harm when NL promoted the lead paint even though “NL had ‘actual
knowledge of the hazards of lead paint’ and ‘knew’ that it would deteriorate and
cause serious injury,’” and “NL’s acts ‘posed a serious risk of harm.’” NL II at 595-
596. The NL II Court held that this “is not a clear finding that NL either expected or
intended to harm any person or property.” Id. at 596, citing Union Carbide v
Affiliated FM Ins. Co., 101 A.3d 434, 955 N.Y.S.2d 572 (1st Dept. 2012); Sherwin-
Williams Co. v. Certain Underwriters at Lloyd’s London, 2020 Ohio Misc. LEXIS
802 (Dec. 3, 2020); Certain Underwriters at Lloyd’s of London v. ConAgra Grocery
Prods. Co., 2020 WL 3096821 (Cal Super, Feb. 26, 2020).
{¶ 35} The NL II Court concluded that the NL I Court “correctly rejected the
insurers’ argument that there could be no coverage because the settlement payment
to the Abatement Fund on the public nuisance claim did not constitute liability for
‘damages’ or expenses under the policies and New York law.” Id. The court further
concluded that the NL I Court “correctly rejected the insurers’ argument that the
rulings in the Santa Clara Action mandated the conclusion that NL’s creation of the
public health hazard by promoting lead paint use in homes constituted knowing and
intentional conduct uninsurable under public policy and the terms of the policies.”
Id. at 595. The NL II Court further agreed with the NL I Court’s rejection of the
“insurers’ argument that there can be no insurance recovery by parties found liable
for representative public nuisance who are required to make payments into an
Abatement Fund because their liability is not imposed ‘for,’ ‘because of,’ or ‘on
account of’ ‘property damage’ or ‘bodily injury,’ as required under the insurance
policies.” Id. at 596. The court stated that “[t]he nuisance liability is based on the
widespread bodily injury/property damage that the hazard of lead paint in homes
caused and continues to cause.” Id.
D. The Instant Action
{¶ 36} In 2006, Sherwin-Williams initiated this case seeking a declaration
regarding its coverage with the Insurers relative to the Santa Clara Action. The case
was stayed pending conclusion of the litigation in 2018. The stay in this case was
lifted in 2019, and the parties thereafter filed motions for summary judgment.
Sherwin-Williams filed a motion for partial summary judgment, arguing that it is
entitled to indemnification by National Union for losses arising from the lead paint
claims, including any money paid as a result of the Santa Clara Action. The Insurers
sought a declaration that they are under no duty to indemnify Sherwin-Williams.
{¶ 37} The trial court articulated the issues it was considering on summary
judgment as follows: (1) Is the nuisance in the Santa Clara Action an “occurrence”
within the meaning of the policies? (2) Is the nuisance in the Santa Clara Action an
intentional tort, barred from coverage by public policy? (3) Is the Abatement Fund
damages? (4) Does Sherwin-Williams’ responsibility for the Abatement Fund
qualify for expenses under the damages and expenses coverage in certain policies?
(5) Is there a duty to provide coverage to Sherwin-Williams for the Santa Clara
Action judgment and/or settlement?
{¶ 38} In December 2020, the trial court issued an eight-page decision,
granting summary judgment in favor of the Insurers and against Sherwin-Williams.
Tellingly, the trial court, in granting summary judgment in favor of the Insurers,
agreed with Sherwin-Williams that the public-nuisance claim was brought on
account of “bodily injury” or “property damage,” explaining that there would be no
basis for the public nuisance claim if neither bodily injury nor property damage were
at issue.
{¶ 39} The trial court first found that there has been an occurrence as
defined in the policies “or else there would be no need for an abatement and no
nuisance would exist.” (Trial Court’s Judgment Entry, Dec. 4, 2020, p. 4.) “An
occurrence as defined in the policies is, ‘an accident, including continuous or
repeated exposure to [a] condition, which result[s] in bodily injury or property
damage neither expected nor intended from the standpoint of the insured.’” (Trial
Court’s Judgment Entry, Dec. 4, 2020, p. 4.)
{¶ 40} The trial court also examined intentional tort law and noted that there
is a distinction between intentionally promoting a product and intending or
expecting injury or property damage. The court found that Sherwin-Williams
“intentionally promoted its product with no expectation or intent to injure” even
though it had “actual knowledge of the potential deleterious effects of lead.” (Trial
Court’s Judgment Entry, Dec. 4, 2020, p. 5, 7.) The court further found that
“Sherwin-Williams was not substantially certain that injury or property damage
would occur due to the promotion of lead containing products.” (Trial Court’s
Judgment Entry, Dec. 4, 2020, p. 7.)
{¶ 41} With regard to damages, the trial court disagreed with Sherwin-
Williams’ position that the sums it was ordered to pay were “damages” under the
policies. The trial court acknowledged that,“[a]t first blush, when a party is required
to pay multi-millions of dollars as a result of a final judgment or settlement it
automatically looks and sounds like damages.” (Trial Court’s Judgment Entry, Dec.
4, 2020, p. 6.) The trial court noted that the Santa Clara II Court “made a clear
statement concerning the distinction between damages and costs of abatement.”
(Trial Court’s Judgment Entry, Dec. 4, 2020, p. 6.) Specifically, the Santa Clara II
Court stated that “‘The distinction between an abatement order and a damages
award is stark’” because “‘[a]n abatement order is an equitable remedy, while
damages are a legal remedy.’” (Trial Court’s Judgment Entry, Dec. 4, 2020, p. 6-7,
quoting Santa Clara II.) The trial court acknowledged that it did not agree with this
statement. In fact, it thought the distinction “counterintuitive and illogical” under
the circumstances, when Sherwin-Williams “is required to fund an abatement
account to the tune of multi-millions of dollars.” (Trial Court’s Judgment Entry,
Dec. 4, 2020, p. 7.) Nevertheless, the trial court held that it and the parties are
bound by the Santa Clara II Court’s decision. And on that basis alone, it concluded
that Sherwin-Williams was not entitled to coverage under the policies. The court
stated, “[t]here are no recoverable damages within the definition in the policies” and
“[w]ere it not for the fact that there are no recoverable damages, there would be
coverage under the insurance policies.” (Trial Court’s Judgment Entry, Dec. 4,
2020, p. 8.) The court also found that the “defendants had a duty to defend Sherwin-
Williams in the Santa Clara [Action].” (Trial Court’s Judgment Entry, Dec. 4, 2020,
p. 7.)
II. Assignments and Cross-Assignments of Error
{¶ 42} Sherwin-Williams appeals and the Insurers cross-appeal, raising the
following assignments of error for review:
Sherwin-Williams’ Sole Assignment of Error
The trial court erred in granting summary judgment in favor of
Defendants-Appellees, the Insurers, and against Plaintiff-Appellant,
Sherwin-Williams, on the ground that there were no recoverable
“damages” under the Policies.
All Insurers’ Cross-Assignments of Error
Cross-Assignment of Error No. 1: The trial court erred by failing
properly to apply Ohio law when analyzing whether Sherwin expected
or intended the harm for which it seeks coverage.
Cross-Assignment of Error No. 2: The trial court also erred by finding
that Ohio’s public policy barring coverage for intentional torts is
inapplicable to Sherwin’s liability.
Cross-Assignment of Error No. 3: Sherwin’s liability was not imposed
“because of” bodily injury or property damage.
Cross-Assignment of Error No. 4: Even if the court reversed the “as
damages” ruling, Sherwin would not be entitled to a finding that
coverage exists.
Insurer Certain London Market Companies Additional Cross-
Assignment of Error
Cross-Assignment of Error No. 5: The trial court erred when it stated
that “[t]here was a duty to defend [the Santa Clara litigation] based
upon the allegation in the multiple complaints.”
III. Law and Analysis
A. Standard of Review
{¶ 43} On appeal, we review a trial court’s ruling on a motion for summary
judgment de novo, applying the same standard applied by the trial court. Grafton
v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). We accord no
deference to the trial court’s decision and independently review the record to
determine whether summary judgment is appropriate.
{¶ 44} Summary judgment is appropriate under Civ.R. 56 when, construing
the evidence most strongly in favor of the nonmoving party, (1) there is no genuine
issue of material fact; (2) the moving party is entitled to judgment as a matter of law;
and (3) reasonable minds can only reach a conclusion that is adverse to the
nonmoving party. Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370, 696
N.E.2d 210 (1998), citing Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 653
N.E.2d 1196 (1995), paragraph three of the syllabus.
{¶ 45} On a motion for summary judgment, the moving party bears the
initial burden of demonstrating that there is no genuine issue of material fact and
that it is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280,
292-293, 662 N.E.2d 264 (1996). If the moving party fails to meet this burden,
summary judgment is not appropriate; if the moving party meets this burden, the
nonmoving party must then point to evidence of specific facts in the record
demonstrating the existence of a genuine issue of material fact for trial. Id. at 293.
B. Collateral Estoppel
{¶ 46} Collateral estoppel prevents parties
from relitigating facts and issues in a subsequent suit that were fully
litigated in a prior suit. Collateral estoppel applies when the fact or
issue (1) was actually and directly litigated in the prior action, (2) was
passed upon and determined by a court of competent jurisdiction, and
(3) when the party against whom collateral estoppel is asserted was a
party * * * to the prior action.
Thompson v. Wing, 70 Ohio St.3d 176, 183, 637 N.E.2d 917 (1994).
{¶ 47} Collateral estoppel is distinguishable from res judicata. Res judicata
has “the effect of precluding * * * [the] relitigating of the same cause of action”
whereas collateral estoppel “precludes the relitigation, in a second, action of an issue
that has been actually and necessarily litigated and determined in a prior action
which was based on a different cause of action.” (Emphasis sic.) Whitehead v. Gen.
Tel Co., 20 Ohio St.2d 108, 112, 254 N.E.2d 10 (1969).
{¶ 48} In NL I, the court addressed the issue of collateral estoppel and the
Insurers’ argument that this doctrine is applicable to the factual findings and rulings
in the Santa Clara Action. The NL I Court stated,
This action was brought to determine whether NL is entitled to
insurance coverage for its liability in the [Santa Clara] Action. The
main issue before this court is the interpretation and application of
various insurance policies. However, the findings of the California
courts as to NL’s liability are closely intertwined with the issue before
this court, as whether coverage exists is contingent on certain findings
by the California courts such as NL’s intent and actual knowledge.
Further, the findings of the California Superior Court are final and
binding even though there was a settlement, resulting in the dismissal
of the public nuisance claim. In Santa Clara II, the Court of Appeal
reversed the Superior Court but the reversal was based on the Court of
Appeal’s conclusion that they could not “uphold the trial court’s
judgment requiring defendants to remediate all the houses before 1981
because there [was] no evidence to support causation as to the homes
built after 1950 (17 Cal App 5th at 89). However, the Court of Appeal
upheld the Superior Court’s actual knowledge findings. Specifically,
the Court of Appeal found that substantial evidence in the record
supported the Superior Court’s findings that NL had actual knowledge
that lead exposure harmed children, that lead paint used in residences
would deteriorate, and that the dust resulting from the deterioration
would poison children causing serious injury (id. at 85).”
NL I at 24-26.
{¶ 49} Just as in NL I, we likewise find that the court’s findings in the Santa
Clara Action that were not reversed remain intact and are final, and collateral
estoppel applies to them in the instant case.
{¶ 50} As to the first prong of the collateral estoppel test, for example, we
find that the issue of Sherwin-Williams’ actual knowledge was actually and directly
litigated in Santa Clara II. Specifically, the court found that substantial evidence in
the record supported the trial court’s findings that the paint manufacturers had
actual knowledge that lead exposure harmed children, that lead paint used in
residences would deteriorate, and that the dust resulting from the deterioration
would poison children causing serious injury. Santa Clara II, 17 Cal. App. 5th 51 at
85, 227 Cal.Rptr.3d 499 (2017).
{¶ 51} As to the second prong of the collateral estoppel test, those facts were
determined by a court of competent jurisdiction. Turning to the third and final
prong of the collateral estoppel test, Sherwin-Williams was a party in the Santa
Clara Action.
{¶ 52} Therefore, we find that collateral estoppel is applicable to the findings
in the Santa Clara Action that were not reversed, remain intact, and are final. While
we find collateral estoppel applicable to the instant case, we also find that the
meaning of damages — more specifically, whether the sums that Sherwin-Williams
was ordered to pay into the Abatement Fund are covered as damages under the
policies — was not actually and directly litigated in the Santa Clara Action. Since
we find that collateral estoppel does not apply to this issue, we next address the issue
of damages.
C. Sherwin-Williams’ Appeal
{¶ 53} The essence of Sherwin-Williams’ appeal is whether the monies it was
ordered to pay to abate the public nuisance in the Santa Clara Action are damages
covered under its insurance policies. Sherwin-Williams contends that the trial court
in the instant case erred in finding that it was “bound” by the court’s decision in
Santa Clara II regarding damages. According to Sherwin-Williams, the issue here
is “whether, as a matter of Ohio law, a court order to pay money to remediate a
hazardous condition causing ongoing harm is ‘damages’ under the Policies,” an issue
Sherwin-Williams contends was not addressed by the Santa Clara Action.
{¶ 54} As stated above, we have the benefit of the recent coverage decisions
in the ConAgra Action and the NL Action, and, we find the NL Action more
persuasive and instructive. It deserves mentioning that the trial court in the case at
hand did not have the benefit of the NL Action opinions prior to releasing its
decision.
{¶ 55} Sherwin-Williams’ policies with the Insurers provide indemnity
coverage for “all sums” Sherwin-Williams becomes “legally obligated to pay as
damages” or “for damages.” The policies do not expressly define “damages.”
{¶ 56} Sherwin-Williams argues that in the absence of a definition, the word
damages must be given its “plain and ordinary meaning.” And by using its plain and
ordinary meaning, “damages” includes the sums Sherwin-Williams was ordered to
pay to remediate and abate the presence of lead paint in the Santa Clara Action.
{¶ 57} In opposition, the Insurers argue that the Santa Clara Action
Abatement Fund does not constitute damages because the fund does not
compensate the government plaintiffs or anyone else for loss. Rather, they argue
the costs imposed are solely to avoid future public health harms that would occur if
lead paint remained in the homes. The Insurers further assert that the Abatement
Fund qualifies as a prophylactic remedy. As a result, they contend that the
Abatement Fund is not covered under the policies.
{¶ 58} We note that “‘[a]n insurance policy is a contract whose
interpretation is a matter of law.”’ Laboy v. Grange Indemn. Ins. Co., 144 Ohio St.3d
234, 2015-Ohio-3308, 41 N.E.3d 1224, ¶ 8, quoting Sharonville v. Am. Emplrs. Ins.
Co., 109 Ohio St.3d 186, 2006-Ohio-2180, 846 N.E.2d 833, ¶ 6. As the Ohio
Supreme Court has stated, “The fundamental goal when interpreting an insurance
policy is to ascertain the intent of the parties from a reading of the policy in its
entirety and to settle upon a reasonable interpretation of any disputed terms in a
manner designed to give the contract its intended effect.” Id., citing Burris v.
Grange Mut. Cos., 46 Ohio St.3d 84, 545 N.E.2d 83 (1989). As a result, “[w]ords
and phrases must be given their plain and ordinary meaning ‘unless manifest
absurdity results, or unless some other meaning is clearly evidenced from the face
or overall contents of the instrument.’” Id., quoting Alexander v. Buckeye Pipe Line
Co., 53 Ohio St.2d 241, 374 N.E.2d 146 (1978), paragraph two of the syllabus. In
cases where an insurance contract term is reasonably susceptible of more than one
interpretation, we must liberally construe it in favor of the insured. Id. at ¶ 9, citing
King v. Nationwide Ins. Co., 35 Ohio St.3d 208, 519 N.E.2d 1380 (1988), syllabus;
Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256,
¶ 13.
{¶ 59} “Damages” is defined as “[m]oney claimed by, or ordered to be paid
to, a person as compensation for loss or injury.” Black’s Law Dictionary 416 (8th
Ed.2004); see also Webster’s New Universal Unabridged Dictionary 504 (2003)
(defining “damages” as “the estimated money equivalent for detriment or injury
sustained”).
{¶ 60} The Insurers argue that the “damages” here are equitable in nature
and that the Santa Clara Action made clear that the plaintiffs in the representative
public nuisance claim were not seeking compensation either for bodily injury or
property damage on behalf of any individual or for monies spent by the government
prior to the action to remediate the ongoing lead paint hazards.
{¶ 61} We note, however, that Ohio courts determining insurance coverage
issues have included in the ordinary dictionary definition of “damages” equitable
relief, which includes the costs of government expenditures for environmental
cleanup. See Sherwin-Williams Co. v Certain Underwriters at Lloyd’s London, 813
F.Supp. 576, 587 (N.D.Ohio 1993) (holding that abatement cost claims fell within
the Insurers’ coverage for property damage because harm, caused by lead paint, had
been done to the New Orleans Housing Authority’s buildings, requiring remedial
steps to make them safely habitable), citing Stychno v. Ohio Edison Co., 806 F.Supp.
663 (N.D.Ohio 1992) (involving a lease agreement but applying Ohio insurance
law); Kipin Industries, Inc. v. Am. Universal Ins. Co., 41 Ohio App.3d 228, 230-231,
535 N.E.2d 334 (1st Dist.1987) (holding that “when the environment has been
adversely affected by pollution to the extent of requiring governmental action or
expenditure or both for the safety of the public, there is ‘property damage’ whether
or not the pollution affects any tangible property owned or possessed exclusively by
the government”).
{¶ 62} Moreover, as stated above, we look to the NL Action for guidance on
the issue of damages since NL I squarely addresses the same issues and the same
Abatement Fund at issue in this case and provides thoughtful insight into the
“damages” conundrum acknowledged by the trial court in its decision.
{¶ 63} In NL I, just as in the instant case, the Insurers argued that NL is not
entitled to coverage because the settlement payment was not covered damages
under the policy and that the Abatement Fund was not tied to a finding that NL is
liable for property damage or bodily injury. The NL I Court rejected this argument,
in its entirety, and denied the Insurers’ motion for summary judgment. NL II
affirmed this denial.
{¶ 64} The issue before the NL I Court with regard to damages was whether
the Abatement Fund constituted covered damages for insurance recovery purposes.
The court concluded that the Abatement Fund had a compensatory effect, which
qualified as damages under the applicable law and insurance policies. Id. at 44-45.
The NL I Court noted that other courts have held that a company’s payment to help
clean up environmental pollution constitutes damages. Id. at 40. The NL I Court
also found that the Abatement Fund could be reasonably tied to bodily injury or
property damage because there was a connection between the physical injuries and
property damage and the promotion of lead paint. Id. at 48.
{¶ 65} The NL I Court reasoned that even though the Abatement Fund in the
Santa Clara Action is technically injunctive relief, this injunctive relief serves
substantially the same purpose as reimbursing the government’s costs in responding
to the lead paint hazard. Id. at *41. Because the Abatement Fund was not strictly
intended to prevent harm but instead directed toward repaying monies depleted by
the government’s ongoing efforts to remediate the longstanding contamination of
houses and buildings by lead paint in California, the NL I Court concluded that the
Abatement Fund qualified as damages under the applicable policies. Id. at *42.
Again, the NL II Court affirmed that conclusion.
{¶ 66} Turning to the case at hand, we note that, under Ohio law, “damages”
in its plain and ordinary meaning is necessarily broad enough to encompass a
variety of remedies, including compensatory damages, injunctive relief, restitution,
and other equitable relief. See Wayne Mut. Ins. Co. v. McNabb, 2016-Ohio-153, 45
N.E.3d 1081, ¶ 36 (4th Dist.) (finding that the undefined term “damages” is
ambiguous and concluding that the equitable remedy of restitution is included in
the definition of damages); Jackson v. Ohio Civ. Rights Comm., 50 Ohio App.3d 13,
16, 552 N.E.2d 237 (8th Dist.1989) (finding that “[r]estitution and compensatory
damages are synonymous”). Just as the NL I Court found, we find that an ordinary
businessperson reading the policies at issue would believe that the Abatement Fund
constitutes “damages” under the relevant policy language.
{¶ 67} Similar to the NL Action’s reasoning, we find that the Abatement
Fund essentially serves the purpose of reimbursing the government’s costs in
responding to the lead paint hazard. Indeed, the Abatement Fund was not strictly
intended to prevent harm but was monies to be paid to the government to
compensate for money depleted by its ongoing efforts to remediate the longstanding
contamination of houses and buildings by lead paint in California. As a result, we
find that the monies Sherwin-Williams was ordered to pay into the Abatement Fund
qualify as damages under the policies.
{¶ 68} In addition to the NL Action, we find Cincinnati Ins. Co. v. Discount
Drug Mart, Inc., 2021-Ohio-4604, 183 N.E.3d 538 (8th Dist.), discretionary appeal
allowed, 166 Ohio St.3d 1524, 2022-Ohio-1893, 188 N.E.3d 182 (“DDM”)
instructive with regard to what “damages” means when Ohio law is applied to the
interpretation of an insurance policy. In DDM, the same panel as in the instant case
addressed damages in the context of a duty to defend a public nuisance action and
noted the “scarcity of Ohio cases that provide guidance on whether the type of relief
that the counties seek in the underlying litigation are ‘damages’ within the meaning
of commercial general liability insurance policies.” Id. at ¶ 40. We reviewed a case
from the Fourth District Court of Appeals that “found, in the insurance context, the
term ‘damages’ is ‘at best’ ambiguous.” Id. at ¶ 41, citing Wayne Mut. Ins. Co. v.
McNabb, 2016-Ohio-153, 45 N.E.3d 1081, ¶ 40 (4th Dist.). We stated:
The court explained that it is “‘not reasonable to expect that laypersons,
corporations, attorneys and insurers who confront the term ‘damages’
in a myriad of contexts would all attach a common, single meaning to
that term[.]’” Wayne at ¶ 40, quoting Miller, Whether Govt. Compelled
Cleanup Costs Constitute “Damages” Under CGL Policies: the
Nationwide Environmental Liab. Dilemma and a California Model
for its Resolution, 16 Colum.J.Envtl.L. 103-104 (1991). Ambiguous
provisions in an insurance policy are construed strictly against the
insurer and in favor of the insured, especially if they purport to limit or
qualify coverage under the policy. Westfield Ins. Co. v. Hunter, 128
Ohio St. 3d 540, 2011-Ohio-1818, 948 N.E.2d 931, ¶ 11.
(Brackets sic.) Id.{¶ 69} As a result, we construed the term “damages” against the insurer and
in favor of DDM and found, for the purposes of the insurers’ duty to defend, that
“the payment of money into an abatement fund in this context, although an
equitable remedy, arguably or potentially falls within the scope of the insurance
policies here.” Id. at ¶ 42. Similarly, extending the guidance of DDM from the realm
of a duty to defend to that of a duty to indemnify, we find that Sherwin-Williams’s
payment into the Abatement Fund qualifies as damages under the applicable
policies.8
{¶ 70} In conclusion of Sherwin-Williams’ sole assignment of error, we
construe the term “damages” in the Insurers’ policies in favor of Sherwin-Williams,
in accordance with established principles of Ohio insurance law. See Westfield at ¶
11 (“Ambiguous provisions in an insurance policy must be construed strictly against
the insurer and liberally in favor of the insured.”). Additionally, we follow the
guidance of NL I and this court’s recent decision in DDM to determine that the
Abatement Fund constitutes damages under Sherwin-Williams’ insurance policies.
{¶ 71} Therefore, based on the foregoing, we find that the trial court erred
by granting summary judgment in favor of the Insurers, and Sherwin-Williams’sole
assignment of error is sustained.
8The trial court also did not have the benefit of the DDM case prior to releasing its
decision.
D. Insurers’ Cross-Appeal
{¶ 72} In the cross-appeal, the Insurers challenge the following findings the
trial court made in its final order: (1) “Sherwin-Williams did not expect or intend
for any injury or property damage due to the promotion of lead containing paint
products”; (2) “Sherwin-Williams was not substantially certain that injury or
property damage would occur due to the promotion of lead containing products”;
(3) “[t]he defendants had a duty to defend Sherwin-Williams in the Santa Clara
case”; and (4) “[w]ere it not for the fact that there are no recoverable damages, there
would be coverage under the insurance policies.” (Trial Court’s Judgment Entry,
Dec. 4, 2020, p. 7-8.)
1. Intentional and Expected Acts
{¶ 73} In the first cross-assignment of error the Insurers contend that
because Sherwin-Williams was found liable in the Santa Clara Action for promoting
lead paint for interior home use, which is a known dangerous use, it had actual
knowledge that doing so would cause children to be poisoned. Thus, the Insurers
contend, Sherwin-Williams was more than substantially certain that the harm
would result from its conduct — it expected or intended the harm.
{¶ 74} In DDM, we also addressed “expected or intended” injury. We stated
that “‘to avoid coverage on the basis of an exclusion for expected or intentional
injuries, the insurer must demonstrate that the injury itself was expected or
intended.”’ Id. at ¶ 56, quoting Physicians Ins. Co. of Ohio v. Swanson, 58 Ohio
St.3d 189, 569 N.E.2d 906 (1991), syllabus. “Ohio courts will infer an intent to cause
injury from an intent to act only when ‘the insured’s intentional act and the harm
caused are intrinsically tied so that the act has necessarily resulted in the harm.” Id.,quoting Allstate Ins. Co. v. Campbell, 128 Ohio St.3d 186, 2010-Ohio-6312, 942
N.E.2d 1090, ¶ 48. We found that while the allegations of intentionally marketing
and distributing opioids “may describe negligence or recklessness, * * * they do not
rise to the level of claiming that DDM’s intentional conduct was so intrinsically tied
to causing harm that the intentional acts necessarily resulted in the harm.” Id. at ¶
58.
{¶ 75} In Campbell, the Ohio Supreme Court addressed the doctrines of
“inferred intent” and “substantial certainty” in the context of intentional act
exclusions in insurance policies and discussed “whether the rule of inferred intent
should be extended to all torts where there is a substantial certainty of harm or limit
its application * * *.” Id. at ¶ 33. After reviewing the development of the inferred
intent doctrine in Ohio, the Campbell Court held that as “applied to an insurance
policy’s intentional-act exclusion”: (1) “the doctrine of inferred intent is not limited
to cases of sexual molestation or homicide”; and (2) “the doctrine of inferred intent
applies only in cases in which the insured’s intentional act and the harm caused are
intrinsically tied so that the act has necessarily resulted in the harm.” Id. at
paragraphs one and two of the syllabus.
{¶ 76} In making this decision, the Campbell Court considered but declined
to adopt the “substantially certain” test in inferred-intent cases. Id. at ¶ 57. Under
that test, a harm that was substantially certain to result from an intentional act
would fall under an intentional-acts exclusion of an insurance policy. Instead, the
Campbell Court held that for an act to fall within the doctrine, the harm must be the
inherent result of an intentional act. Id. at ¶ 56. The court stated that because the
inferred intent “test provides a clearer method for determining when intent to harm
should be inferred as a matter of law, we hold that courts are to examine whether
the act has necessarily resulted in the harm — rather than whether the act is
substantially certain to result in harm.” Id. at ¶ 56.
{¶ 77} In Campbell, the underlying act by the potential insureds was the
placement of a Styrofoam target deer on a hilly country road at night. Id. at ¶ 2. A
group of youths intentionally placed the deer in the roadway to watch the reactions
of motorists. Id. Some motorists successfully avoided the fake deer, but one driver
lost control of his vehicle and crashed; he and his passenger suffered serious
injuries. Id. The court reasoned, “[w]hile the boys’ act was ill-conceived and
irresponsible and resulted in serious injuries, the action and the harm are not
intrinsically tied the way they are in murder and sexual molestation.” Id. at ¶ 51.
{¶ 78} The NL I Court used reasoning similar to Ohio law. Because of the
distinction between knowledge of the risk of hazardous consequences of one’s
actions and the intention to cause harm, the NL I Court found that the insurers failed
to meet their summary judgment burden to exclude coverage on the basis of
“expected or intended harms” and failed to make a prima facie case that NL’s
conduct is uninsurable under policies containing the exclusion. Id. at *35. The NL
I Court found “there is no evidence demonstrating an intent to cause harm when NL
promoted the lead paint[.]” Id. at 38. The NL II Court affirmed this finding even
though “NL had ‘actual knowledge of the hazards of lead paint’ and ‘knew’ that it
would deteriorate and cause serious injury,’” and “NL’s acts ‘posed a serious risk of
harm.’” The NL II Court held that “is not a clear finding that NL either expected or
intended to harm any person or property.” Id. at 2-3.
{¶ 79} In light of the Ohio Supreme Court’s holding in Campbell, we find NL
I analogous to Ohio law and look to the NL Action for guidance on the “intentional
and expected acts” argument raised by the Insurers. Just as in NL I, we likewise find
that the alleged intentional acts by Sherwin-Williams, which are the same alleged
acts in the NL Action, are not expressly excluded by the policies and there is no
evidence demonstrating that Sherwin-Williams intended to cause harm when it
promoted the lead paint.
{¶ 80} While the Santa Clara Action found that Sherwin-Williams had
actual knowledge of the hazards of lead paint and knew that it would deteriorate and
cause serious injury, the action also found that Sherwin-Williams did not intend to
harm children. Following the reasoning in Campbell, finding actual knowledge of a
hazard is not the same as finding that Sherwin-Williams’ intentional conduct and
the resulting injuries were so intrinsically tied that Sherwin-Williams’ conduct
necessarily resulted in the harm.
{¶ 81} Like NL I, the question here is whether Sherwin Williams’ act
necessarily resulted in the harm, not whether Sherwin-Williams knew that its act
was substantially certain to result in the harm. Because of this distinction, we find
that, under Ohio law, the Insurers failed to meet their burden on summary
judgment.
{¶ 82} Therefore, the Insurers’ first cross-assignment of error is overruled.
2. Public Policy and Intentional Torts
{¶ 83} In the second cross-assignment of error, the Insurers maintain that
coverage is barred as a matter of public policy because Sherwin-Williams committed
an intentional tort by promoting its paint with the knowledge that it caused harm.
The Insurers challenge the trial court’s finding that suggests Ohio’s public-policy bar
on coverage for intentional torts is limited to intentional torts in an employment
context. The trial court stated, “The reliance of the series of cases generated as a
result of employment intentional tort * * * do not have application to this case.”
(Emphasis added.) (Trial Court’s Judgment Entry, Dec.4, 2020, pg. 5.) The court
therefore found that the “discussions of intentional conduct contained in the
coverage cases for employment intentional tort are of no relevance” because of a
distinction between intentionally promoting a product and intending or expecting
injury or property damage. (Trial Court’s Judgment Entry, Dec.4, 2020, pg. 6.)
{¶ 84} The Insurers challenge the trial court’s finding because, they contend,
intentional torts are not limited to an employment context. The trial court, however,
did not make that finding. Rather, the court stated that it declined to rely on cases
that dealt solely with whether there was insurance coverage for intentional torts
committed in an employment context. It never stated that an intentional tort could
not apply outside an employment setting.
{¶ 85} Accordingly, the second cross-assignment of error is overruled.
3. Bodily Injury and Property Damage
{¶ 86} We now turn to the Insurers’ third cross-assignment of error. Within
the numerous insurance policies at issue in the case at hand, generally bodily injury
and property damage are covered losses. The Insurers argue that the plaintiffs in
the Santa Clara Action, which were all government entities, “did not suffer any
bodily injury or property damage themselves.” According to the Insurers, the ‘“plain
meaning’ of the term ‘damages’ is ‘compensation for a loss of injury sustained by the
plaintiff.’” Therefore, the Insurers argue, Sherwin-Williams’ “liability falls outside of
the insuring agreement * * *.”
{¶ 87} Additionally, the Insurers argue that the Abatement Fund was not
awarded because of bodily injury or property damage, because the government-
entity plaintiffs “were not even required to establish that anyone suffered bodily
injury or property damage” as part of a California public nuisance claim.
{¶ 88} Considering this argument, we look to the terms used in the insurance
policies in question. Under one of the insurance policies found in the joint statement
of undisputed facts, coverable damages are defined as “[a]ll sums which the Insured
shall become legally obligated to pay as damages because of: bodily injury or
property damage * * *.” In this same exemplar policy, bodily injury is defined as
“injury, sickness or disease sustained by any person which occurs during the policy
period * * *.” Property damage is defined as “(1) physical injury to or destruction of
tangible property which occurs during the policy period * * *, or (2) loss of use of
tangible property * * * caused by an occurrence during the policy period.”
{¶ 89} In NL I, the court addressed this argument and found as follows:
While this court agrees that property damage and bodily injury are not
elements of the representative public nuisance claim, there is a
connection between the lead poison injuries to the children residing in
the buildings containing the lead paints promoted by NL and the
property damage to those buildings as a result of NL’s promotion of
lead paint.
NL I at 48.
{¶ 90} Upon review, we again follow the NL I Court and find that Sherwin-
Williams’ liability was imposed because of bodily injury or property damage.
Therefore, the third cross-assignment of error is overruled.
4. Recoverable Damages
{¶ 91} In the fourth cross-assignment of error, the Insurers take issue with
the trial court’s statement that, but for the lack of “recoverable damages, there would
be coverage under the insurance policies.” The Insurers list various reasons why
they believe they are entitled to summary judgment notwithstanding the recoverable
damages issue. Given our disposition of Sherwin-Williams’ sole assignment of error
and our reversal of the trial court’s granting summary judgment to the Insurers on
appeal, as well as the fact that Sherwin-Williams does not ask this court to grant its
motion for partial summary judgment, no coverage determination has been made
in this case. Therefore, we sustain the fourth cross-assignment of error and remand
this case to the trial court with instructions to vacate the statement at issue.
5. Duty to Defend
{¶ 92} The fifth cross-assignment of error relates to the trial court’s finding
that the Insurers “had a duty to defend Sherwin-Williams in the Santa Clara
[Action].” Certain London Market Companies argues that this issue was not before
the trial court, and as a result, the trial court erred in making this ruling.
{¶ 93} The duty to defend is not at issue in the case at hand and was not
raised on summary judgment by any party. Certain London Market Companies
expressly argues on appeal that all summary judgment motions filed in this case
“involved only the distinct and different duty to indemnify.” Therefore, we sustain
the fifth cross-assignment of error and remand this case to the trial court with
instructions to vacate the statement at issue.
IV. Conclusion
{¶ 94} Therefore, based on the foregoing, we find that the trial court erred
by granting summary judgment to the Insurers, and we sustain Sherwin-Williams’
sole assignment of error. The Insurers’ cross-assignments of error one, two, and
three are overruled. As a matter of law, we find that (1) the Abatement Fund at issue
in the case at hand constitutes damages under the Insurers’ policies, and (2)
Sherwin-Williams has presented an occurrence under the Insurers’ policies. The
trial court’s decision granting summary judgment in favor of the Insurers is
reversed. We note that a coverage determination in the instant case remains
pending.
{¶ 95} This matter is remanded to the trial court to vacate the statements in
its December 4, 2019 journal entry noted in cross-assignments of error four and five,
and for further proceedings consistent with this opinion.
It is ordered that appellant/cross-appellee recover from appellees/cross-
appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
________________________________
MARY J. BOYLE, PRESIDING JUDGE
LISA B. FORBES, J., CONCURS;
ANITA LASTER MAYS, J., DISSENTS
ANITA LASTER MAYS, J., DISSENTING:
{¶ 96} I respectfully dissent.
{¶ 97} I would find that collateral estoppel applies to all issues including
damages. I would affirm the trial court’s determination.
{¶ 98} I find that the salient issue in this appeal is whether nuisance
abatement funds that Sherwin-Williams was ordered to pay by a California court
constitute “damages” for purposes of insurance.
{¶ 99} In regard to “damages,” Sherwin-Williams and the defendants
contended that the abatement fund was “a thinly-disguised damages award to
Plaintiffs for unattributed past harm to private homes.” Santa Clara II, 17
Cal.App.5th 51, 227 Cal.Rptr.3d 499, at 568. The court of appeal found otherwise,
however. Specifically, the court noted that abatement is “an equitable remedy,” with
the “sole purpose * * * to eliminate the hazard that is causing prospective harm to
the plaintiff.” Id. at 569. Therefore, the appellate court concluded that an abatement
order “provides no compensation to a plaintiff for prior harm.” Id. The government
plaintiffs “did not seek to recover for any prior accrued harm nor did [they] seek
compensation of any kind.” Id. Rather, the monies the defendants deposited in the
abatement fund “would be utilized not to recompense anyone for accrued harm but
solely to pay for the prospective removal of the hazards defendants had created.” Id.{¶ 100} I agree with the insurers that Sherwin-Williams is collaterally
estopped from relitigating the issue of damages in this case. In so finding, I also rely
on the well-established principle that the duty to indemnify is triggered only after
liability has been established. Ohio Govt. Risk Mgt. Plan v. Harrison, 115 Ohio St.3d
241, 2007-Ohio-4948, 874 N.E.2d 1155; see also Pilkington N. Am., Inc. v. Travelers
Cas. & Sur. Co., 112 Ohio St.3d 482, 2006-Ohio-6551, 861 N.E.2d 121 (“The duty to
defend is based on the allegations presented. The duty to indemnify arises from the
conclusive facts and resulting judgment. * * * The duty of defense is much broader
than the duty of indemnification and can be invoked even though no liability is
ultimately established.”) (Citations omitted); Cincinnati Ins. Co. v. DTJ Ents. (In re
Hoyle), 143 Ohio St.3d 197, 2015-Ohio-843, 36 N.E.3d 122, ¶ 6 (“Unlike the broader
duty to defend, an insurer’s duty to indemnify its insureds is based on whether there
is, in fact, actual liability.”).