Baker v. Aetna Cas. & Sur. Co.12/21/1995
PEGGY BRYANT, Judge.
Plaintiff-appellant, Shawna L. Baker, nee Hunter, appeals from a judgment of the Franklin County Court of Common Pleas entering summary judgment in favor of defendant-appellee, Aetna Casualty and Surety Co. ("Aetna") and denying summary judgment for plaintiff.
On January 31, 1992, while employed at Ken's Cardinal Supermarket in Columbus, Ohio, plaintiff was robbed at gunpoint. During the robbery, she sustained a shotgun blast at pointblank range, resulting in severe injuries to her face. On January 27, 1993, plaintiff initiated claims against several defendants, including intentional tort claims against her employer, Brookshire Cardinal Supermarket, Inc., d.b.a. Ken's Cardinal ("Brookshire"). Although Brookshire duly notified Aetna of plaintiffs claims, Aetna refused to defend or indemnify Brookshire. On March 8, 1994, Brookshire confessed judgment for $1,250,000.
On April 19, 1994, plaintiff filed a complaint against Aetna as Brookshire's commercial liability insurer. Plaintiff demanded a declaratory judgment that valid contracts and policies of insurance covered Brookshire's liability, that Aetna had had a duty to defend Brookshire, and that Aetna was liable for Brookshire's damages.
In her action against Aetna, plaintiff, on December 6, 1994, filed a motion for summary judgment. On January 6, 1995, defendant responded with a memorandum in opposition to plaintiff's motion and a cross-motion for summary judgment. On March 13, 1995, the trial court entered summary judgment for defendant and denied plaintiffs summary judgment motion, concluding that (1) plaintiff s claim fell within a contract term excluding coverage for bodily injury "expected or intended from the standpoint of the insured," and (2) public policy precluded any insurance for intentional torts.
Plaintiff timely appealed, assigning two related errors:
"I. In this supplemental action by plaintiff against the defendant insurance company to recover the judgment for damages due to personal injuries previously rendered for plaintiff against her employer, the trial court erred in holding as a matter of law that the policies of liability insurance issued by defendant to the insured employer did not cover the insured's liability for that judgment and thereby erred in granting summary judgment for defendant.
"II. The trial court erred in denying as a matter of law that the policies of liability insurance issued by defendant to the insured employer did cover the insured's liability for the judgment of plaintiff against her insured employer and thereby erred in denying summary judgment for plaintiff."
Because plaintiff's two assignments of error are interrelated, we address them jointly.
Plaintiff's assertions arise in the context of a summary judgment motion. Pursuant to Civ.R. 56, summary judgment will be granted only ff no genuine issue of material fact exists, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to but one conclusion. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47. A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which the party bears the burden at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, citing Celotex v. Catrett (1986), 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265.
In determining whether Brookshire's intentional tort is covered under Aetna's policy, we first consider the policy terms. Brookshire's commercial liability insurance coverage included a commercial general liability
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