Ohio Supreme Court Concludes Assault and Battery Exclusion Precludes Coverage Even When Assault Is Committed By Someone Who Lacks Capacity To Form Intent

by Brianna Prislipsky, Esq.

On July 12, 2023, the Ohio Supreme Court held by way of a 7-0 consensus that an assault and battery exclusion in an insurance policy could not be nullified based upon the mental state of the individual who committed the underlying assault, even when the individual who committed the assault could not be criminally convicted. Krewina v. United Specialty Insurance Co., Slip Opinion No. 2023-Ohio-2343.

The plaintiff, Austin Krewina, was a resident at the Brown County Care Center when another resident, Colin Doherty, attacked him with a knife, causing bodily injury. Doherty, a disabled individual, was charged with felonious assault by the state of Ohio but was found not guilty by reason of insanity. The Care Center was insured through United Specialty Insurance Company (“USIC”) with a policy that expressly excluded coverage for bodily injury which arose out of “any actual, threatened or alleged assault or battery.” Neither assault nor battery were defined terms under the policy.

Krewina brought suit against the Care Center, and the parties settled the matter pursuant to an agreement under which the Center consented to a final judgment in favor of Krewina. Krewina subsequently brought a declaratory judgment action against USIC to collect on the judgment, alleging that the policy exclusion did not apply to the assault he experienced, as Doherty was found not guilty of felonious assault by reason of insanity.

The case proceeded to a bench trial before the trial court. Krewina relied primarily on the criminal definition of assault, which requires subjective intent. Because Doherty did not have that requisite intent, Krewina argued that the assault exclusion could not apply. The trial court disagreed and granted summary judgment in favor of USIC. The First District reversed on appeal, finding that Doherty could not have assaulted Krewina because Doherty lacked the capacity to govern his conduct and thus could not act intentionally, knowingly, or recklessly.

On appeal, the Supreme Court reversed the appellate court, finding that the common law definition of assault controlled, meaning that Doherty’s actions constituted assault under the policy regardless of whether he possessed the requisite intent. Because Doherty’s actions constituted assault under common law, the Court held that the policy exclusion applied, and USIC could not be liable under the policy.

The Court went on to note that, while Krewina’s injuries were unfortunate, it was not the Court’s sympathies, but the language of the policy which carries weight. The Court concluded with an admonishment that courts must refrain from “inserting exceptions into contracts where they do not exist.”

This case reaffirms the Ohio Supreme Court’s commitment to plain language policy interpretation based upon the ordinary and common law meaning of terms, as opposed to their legal and/or statutory equivalents. When a term or phrase has an accepted, every day meaning, it is that common term that should guide the interpretation of contracts.

If you have any questions regarding the potential impact of this decision or any other question about Insurance Coverage, please contact one of Reminger’s Insurance Coverage Practice Group attorneys.