In what may be the final blow to workplace intentional tort in Ohio, the Ohio Supreme Court, in Hoyle v. DTJ Ents., Inc., recently held that "an insurance provision that excludes coverage for acts committed with the deliberate intent to injure an employee precludes coverage for employer intentional torts, which require a finding that the employer intended to injure the employee." The issues were much more complicated than the syllabus let on. In Hoyle, the employee was injured falling from a scaffold while employed by DTJ Enterprises and Cavanaugh Building Corporation. The only claim to survive summary judgment was whether the employer deliberately removed a safety guard for the purposes of creating a rebuttable presumption of an intent to injure the employee. In that case, the plaintiff would not need to prove deliberate intent to harm, the statute presumes a cause of action. It was to that hitch that both defendants attached their insurance wagon. Both were insured by Cincinnati Insurance Company, and both purchased additional coverage that provided insurance in situations where the liability for the workplace intentional tort was based, not on the deliberate intent to harm, but on a substantial certainty standard. CIC intervened in Hoyle's action to seek a declaration of no coverage. According to CIC, the policy excluded from coverage "liability for acts committed by or at the direction of an insured with the deliberate intent to injure."
The complication in the case, was that CIC sold the defendants supplemental coverage intended to provide insurance if liability arose under the "substantial certainty employer intentional torts" line of claims that no longer exist in Ohio law. CIC sold the supplemental coverage well-after the General Assembly amended the pertinent statute creating the rebuttable presumption, and requiring the plaintiff to otherwise prove deliberate intent to injure in order to recover for a workplace intentional tort claim. In other words, CIC was selling a product with no coverage. The Ohio Supreme Court, in a divided panel, sided with CIC and held that the policy exclusion controlled and all workplace intentional tort claims must necessarily prove deliberate intent, even those claims that rely on the presumption for the removal of a safety guard.
As Justice Lanzinger lamented, "by defining “substantially certain” acts as “deliberate” in R.C. 2745.01, the General Assembly has closed off employer intentional torts altogether. Even if a plaintiff proves the employer’s intent to injure directly under R.C. 2745.01(A) or (B), or by an unrebutted presumption under R.C. 2745.01(C), the act is not insurable as was the old substantial-certainty intentional tort. There is now nothing less than deliberate intent. As a practical matter, employees will be limited to workers’ compensation remedies for their workplace injuries." Justice O'Neill took that comment one step further and provided an insightful walk through the slow death of a workplace intentional tort claim. The decision also frees the insurance companies from covering under the supplemental insurance provisions that have been issued. If, as Justice O'Neill pointed out, CIC was "selling worthless pieces of paper that will never pay a claim," one wonders how long before some of the purchasers decide to get their money back.
