Skip to content

When a prank of a foam deer placed on a two-lane road leads to a serious car crash, can the pranksters turn to their insurers? The Ohio Supreme Court sets forth a new legal standard to determine the answer to the question.

January 4, 2011

On the evening of November 18, 2005, teen boys stole a lightweight Styrofoam target deer typically used for archery, fastened a piece of “wood to the target so that it could stand upright,” and placed the deer just below the crest of a hill on a curvy two-lane road with a speed limit of 55 miles per hour.  They placed the foam deer in a place where the drivers would not be able to see if until they were 15 to 30 yards away.  They stayed to see the reactions of the drivers. Several steered clear of the foam deer. But, about five minutes later, Robert Roby drove over the hill, swerved, overturned, coming to a stop finally in a field. Robert Roby and his passenger, Dustin Zachariah were “seriously injured. Allstate Ins. Co. v. Campbell, Slip Opinion No. 2010-Ohio-6312 (December 30, 2010)

Roby and Zachariah filed a law suit in the Franklin County Court of Common Pleas against the pranksters,  their parents and their insurance companies. The insurance companies sought and obtained declaration from the trial court  that they were under no duty to defend or indemnify the insured under the doctrine of “inferred intent.”  Under that doctrine, if the language of an individual’s  insurance policy excludes bodily injury or property damage resulting  from an “intentional act” of the insured.  The trial court’s ruling was reversed by the Tenth District Court of Appeals,   holding there was a factual question of  whether the boys intended to cause harm or whether harm was substantially certain to result from their actions. 

The case went to the Ohio Supreme Court.  In a decision breaking away from the past, the Ohio Supreme Court discarded the test that guided the lower courts and set forth a new test to determine when the doctrine of “inferred intent” should apply.  The Supreme Court’s new test is whether the  “insured’s intentional act and the harm caused are intrisically tied so the act has necessarily resulted in harm.”  

What will be the impact of this case on injury victims?   The opinion makes it clear that this doctrine will still apply only  to exclude insurance coverage when it was clear that the insured’s acts would result in harm: “to do the act is necessarily to do the harm which is its consequence; and ***since unquestionable the act is intended, so is the harm.” Id. at 12,  citing Gearing v. Nationwide Ins. Co. (1996), 76 Ohio St. 3d 34, 37, 665 N.E. 2d 115, 118 , quoting Allstate Ins. Co. v. Mugavero (1992) 79 N.Y. 2d 153, 160, 581  N.Y.S. 2d 142, 589 N.E. 2d 365.  Until today, the Supreme Court has approved this doctrine is only two instances: the denial of insurance coverage to defend the acts of a murderer and a sex molester. 

But, will this new standard create new questions of causation?  This was the concern of  Justices Brown and Pfeiffer:

The exclusion cannot be as broad as envisioned by the majority.  Most accidents are the result of intentional acts-it is the result that is unintended.  If a homeowner intentionally leaves his rake in the yard with the intention of returning to his gardening after a short water break and a neighbor steps on the rake and punctures his foot and breaks his nose, is there no coverage?  Here as in the other policies, the exclusion applies to instances where the insured intends to cause harm.  Otherwise, there would be no coverage for any injury that resulted from any waking, non-reflexive act of an insured. Id. at 19.

No comments yet

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: