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Case Update

Only one decision from the Ohio Supreme Court this week.  We all know that insurance doesn't cover intentional torts.  If you punch your neighbor in the mouth, your homeowner's policy isn't going to cover you.  But what if your kid punches the neighbor -- or, in this case, stabs her -- and the neighbor sues you for negligently supervising your kid?  That's the situation presented in Safeco Ins. Co v. White, and the court concludes that the definition of "occurrence" in the policy has to be construed from the standpoint of the individual insured:  while the kid's actions were unquestionably intentional, the parents' actions were merely negligent, and thus they were entitled to coverage.

While Safeco is nominally a 5-2 decision, it's really 4-3.  The focus of Justice Cupp in his concurrence, and in the dissent by Justice O'Donnell, joined by Justice Lundberg Stratton, was on exclusionary language of the policy (actually two:  a homeowners and an umbrella policy):  the former excluded coverage for injuries "arising out of any illegal act committed by... an insured," while the latter excluded injuries resulting from "any act... intended by any insured."  The dissenters found this unambiguously excluding coverage for all insureds if any of them acted intentionally.  Cupp found the provisions ambiguous, but helpfully suggested a phrasing that would not be.  Look for it to become a regular feature of policies, and the issue to be relitigated further.

On to the courts of appeals...

Criminal.  Defendant told to report to jail to begin serving sentence at 8:00 AM, doesn't show up until 11:00, court tacks an additional year on his sentence under RC 2949.06; 6th District reverses, says that where defendant voluntarily shows up, albeit late, he hasn't "escaped" within meaning of statute... Statements made by co-conspirator are admissible, even if conspiracy isn't one of charged offenses, says 1st District... 9th District reverses conviction because trial court erred in excusing juror for cause... 3rd District says that trial court lacked authority to order restitution be paid to humane society in cruelty to animals prosecution; society wasn't a victim or survivor of crime... Fact that defendant acquitted of all underlying charges doesn't mean resisting arrest conviction is against manifest weight of evidence; charges are independent, says 8th District...

Civil.  9th District holds that malicious prosecution can't be asserted as counterclaim to the action claimed to be maliciously prosecuted, since element of claim is that prior proceeding was terminated in plaintiff's favor... 12th District reverses grant of summary judgment in workers comp case, says genuine dispute of fact as to whether claimant was in course and scope of employment under "traveling employee" rule... 9th District holds that parent moving to modify shared parenting plan to increase visitation must show "change of circumstances," not merely that change is in best interest of child...

This week's lesson in boat safety.  From the 6th District's decision in Hartman v. Cedar Fair, affirming summary judgment against a woman who fell out of the Sir-Tub-A-Dub's Tub water ride: 

When Hartman went to exit the ride immediately after her husband, Hartman perceived that the same employee who had assisted her family exit the ride was for some unknown reason unwilling to help her likewise exit the ride. She perceived that this same ride attendant had given her "dirty looks."  This perception was not rooted in any objective facts or evidence. Based upon this perception, Hartman elected to proceed exiting the ride in a manner which, given her deposition testimony, was clearly and openly hazardous.

Without asking for assistance from the nearby ride attendant or her husband, Hartman stood up in her tub-boat, picked up her granddaughter in one arm and her belongings in the other, and attempted to climb over a railing on the side of the tub. Appellant failed to clear the railing and tripped, sustaining injury.

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