OHIO INTENTIONAL TORTS
By Kenneth J. Knabe
I. SUMMARY
Several newer statutes have reshaped Ohio's intentional tort law. These short-sighted "reform" laws insulate and protect this most heinous type of Tortfeasor, one who intends injury.
II. S. B. 120
A. Joint and Several - Prior to S. B. 120
Since at least 1880, Ohio accepted the Doctrine of "Joint and Several" liability which allows a Plaintiff to recover the full amount of damages against any one of several joint tortfeasors, but not more than the award. Price v. McCoy Sales & Serv., Inc. (1965), 2 Ohio State 2d 131, 139-140, 207 N.E.2d 236, 242-243, citing Larson v. Cleveland Ry. Co. (1943), 142 Ohio State 20, 50 N.E.2d 163 ; Transfer Co. v. Kelly (1880), 36 Ohio State 86, 90. This doctrine permitted a wrongfully injured Plaintiff more opportunity to recover full damages; a tortfeasor could not escape liability by showing someone else was also liable. This Doctrine is even more salient when applied to intentional tortfeasors.
B. Joint and Several - Present Law
In the first wave of "reform" in 2003, Ohio drastically changed this Doctrine in Am. Sub. S.B. No. 120 (S. B. 120). S.B. 120 applies to any civil action for personal injury or wrongful death. See R.C. §2307.22(A) (1); R.C. §2307.011(K). S.B. No. 120 mostly eliminates Joint and Several liability and replaces it with apportioned and several liability.
An "intentional tort claim" occurs when: "a tortfeasor intentionally caused or intentionally contributed to the injury or loss to a person … or the wrongful death or that a tortfeasor knew or believed that the injury or loss to a person … or the wrongful death was substantially certain to result from the tortfeasor's conduct…". R.C. §2307.011(D). Workplace intentional torts that occur on the employer's premises are excluded from this definition. See R.C. §2307.011(D).
Plaintiff's damages are now divided into economic and non-economic loss. See R.C. §2307.011(C) & (F). Joint and Several liability for non-economic loss is eliminated for all torts in Ohio (R.C. §2307.22(B).
The new Joint and Several scheme applies to "intentional tort claims" for all economic loss. (R.C. §2307.22(A)(3). However, a jury can still attribute a portion of tortuous conduct to liable, named non-parties (R.C. §2307.23(A)(2); R.C. §2307.011(G).
For example, a Plaintiff is assaulted by a wealthy professional athlete (Defendant A) and his unemployed, insolvent friend (Defendant B). Under S.B. 120, a jury could attribute a portion of the tortuous conduct to Defendant B as long as he is included as a Defendant or referenced by name by the defense before trial. See R.C. §2307.23(A)(2); R.C. §2307.011(G). For example:
- Defendant A: 10% Intentional Tortuous Conduct
- Defendant B: 90% Intentional Tortuous Conduct
- Total Award: 100%
- Award: $1 million ($50,000.00 economic loss) ($950,000 non-economic loss)
Since Defendant A is an intentional tortfeasor, he is jointly and severally liable for the entire amount of economic loss, which is $50,000.00. Since joint and several never applies to non-economic loss, Defendant A is only liable for $95,000.00 of the non-economic portion (10% of $950,000). Plaintiff's maximum recovery against Defendant A is $145,000.00. S.B. 120 awards the intentional tortfeasor, Defendant A, with a credit for $805,000.00 and punishes the negligent free Plaintiff the same amount.
C. Setoffs/Contribution
See Toby Hirshman's article in the CATA News Winter 2010-2011 issue, "The Right to Setoffs after Abolition of Joint and Several Liability". Toby's excellent article states that setoffs and contribution are inapplicable since joint and several has been essentially abolished in Ohio.
D. Defenses
For an "intentional tort claim", Plaintiff's contributory fault is not a defense. (R.C. §2315.32(B)). "Contributory fault" includes contributory/ comparative negligence and express or implied assumption of the risk. See R.C. §2307.011(B).
E. Insurance Coverage
Allstate Insurance Co. v. Campbell, 2010-Ohio-6312, 2009-2358 (OHSC), addressed whether liability coverage can be excluded for intentional acts even if the tortfeasor did not necessarily mean to cause injury. The case arose from a single vehicle accident caused when teenagers placed a standing Styrofoam target deer in the middle of a roadway at night to startle motorists. A serious accident occurred when a vehicle ran off the road. The teenagers denied intending to hurt anyone. The principal issue was whether intent to harm should be inferred as matter of law despite their denial of specific intent to harm. The trial court inferred intent, but the court of appeals found inferred intent was not appropriate and a question of fact existed.
The Court went on to affirm the holding of the lower appellate court that genuine issues of material fact precluded summary judgment with respect to application of the teenager's intentional act exclusions. However, one of the insurers' (American Southern) intentional act exclusion was applied to preclude coverage as a matter of law. That insurer's exclusion provided, in pertinent part, that coverage does not apply to " 'bodily injury' or 'property damage' which results directly or indirectly from * * * an intentional act of any 'insured.'" Justice Lanzinger explained that such language was triggered by an intentional act as opposed to an intentional injury.
The syllabus states:1. As applied to an insurance policy's intentional-act exclusion, the doctrine of inferred intent is not limited to cases of sexual molestation or homicide.
2. As applied to an insurance policy's intentional-act exclusion, the doctrine of inferred intent applies only in cases in which the insured's intentional act and the harm caused are intrinsically tied so that the act has necessarily resulted in the harm.
For unanimous Paragraph 1, examples given where inferred intent applies are murder, rape, and sexual molestation.
The second paragraph advocated by OAJ was adopted by four justices (Lanzinger, O'Connor, Brown, and Pfeifer). The same four justices explained in ¶56 that:
We now clarify that the doctrine of inferred intent applies only in cases in which the insured's intentional act and the harm caused are intrinsically tied so that the act has necessarily resulted in the harm. Because this test provides a clearer method for determining when intent to harm should be inferred as a matter of law, we hold that courts are to examine whether the act has necessarily resulted in the harm – rather than whether the act is substantially certain to result in harm.
The obvious concern is American Southern's dismissal . The potential exists for a broad interpretation allowing Insurance Companies to write out virtually all intentional acts that directly or indirectly result in harm. Ridiculous results would occur if only the act has to be intentional, i.e. intending to turn left, intending to dig a hole that causes an explosion. Physicians Ins. Co. of Ohio v. Swanson, 58 Ohio St.3d 189, 569 N.E. 2d 906 (Ohio 1991) points out several examples of pushing this "unintended" extreme.
Campbell has been called "fractured" and its precedential value is questionable due to numerous and varied interpretations and opinions. Only the first paragraph of the syllabus is solid.
III. WORKPLACE INTENTIONAL TORTS
A. Insurance Coverage
In 2005, Workplace intentional torts were redefined by R.C. §2745.01. A Plaintiff must now prove deliberate intent to injure. An employer is no longer liable for conduct that is "substantially certain" to injure its employees unless deliberate intent can be established. However, the Legislature also created a rebuttable presumption of deliberate intent to injure in situations where an employer deliberately removes a safety guard. (R.C. §2745.01(C)). This provision fails to require an actual intent to injure, and is more akin with a "substantially certain" employer intentional tort.
The Ohio Supreme Court ruled that R.C. §2745.01 is constitutional, Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250, 2010-Ohio-1027.
Employer's Stop-Gap Endorsements were designed to provide defense/ indemnification for workplace intentional torts against the employer. Under prior law, employees could sue their employer for injuries outside the scope of traditional workers compensation claims by alleging either direct intent to injure the employee or that the employer knowingly put him or her in a dangerous/ unsafe position where injury was "substantially certain" to occur. Blankenship v. Cincinnati Milacron Chems, Inc. (1982), 69 Ohio St.2d 608, 433 N.E.2d 572, Jonesv. VIP Co. (1984), 15 Ohio St.3d 90, 15 OBR 246, 472 N.E.2d 1046.
In 1987, the Supreme Court interpreted the Blankenship intentional tort doctrine for application to a CGL Policy in Wedge Products v. Hartford Equity Sales Co. (1987), 31 Ohio St.3d 65, 509 N.E.2d 74. The Court found that the insurer had no duty to defend the alleged intentional tort by the employer because the insurance policy did not provide coverage for injuries "expected" or "intended". The Court found that it was contrary to public policy in Ohio to insure against intentional torts.
In Harasyn v. Normandy Metals, Inc. (1989), 49 Ohio St.3d 173, 551 N.E.2d 962, the Court interpreted an "Employer's Stop-Gap Endorsement" and found that, unlike a deliberate or direct intent tort, it is not against public policy to insure against intentional torts that were substantially certain to occur. Under Harasyn, a stop-gap insurer had a duty to defend and indemnify employers for workplace substantially certain intentional torts .
In light of Kaminiski, it is now likely that employer intentional claims will no longer be defended or covered by stop gap insurance carriers. However, an argument exists for coverage under the statutory inferred type intent by deliberately removing a safety guard.
B. Some Success Plaintiffs have enjoyed some success on this statutory inferred intent theory – Exhibit 1 (deliberate removal of rubber safety gloves in electrocution, no expert testimony); Exhibit 2 (bypassing an interlock safety switch akin to deliberately removing it).
C. Application Joint and several applies under the negligence standard in SB 120 since employer intentional torts are excluded from the definition of an intentional tort claim. Under the negligence standard, no joint and several liability exists for non-economic damages; joint and several liability exists for economic damages only if the Defendant is over 50% negligent R.C. §2307.22(A)(1)&(2).
Applying the workplace intentional tort law to our example, no joint and several ever exists for non-economic loss.
The employer is jointly and severally liable for economic loss only where an injured employee can prove that his or her employer is over 50% negligent. Since Defendant A Employer is not over 50% at fault, the Employer is only severally liable for the economic loss of $50,000.00 (10% of $50,000.00 is $5,000.00). Defendant A is still liable for $95,000.00 of the non-economic portion (10% of $950,000.00). Plaintiff's maximum recovery against Defendant A for a workplace intentional tort is only $100,000.00.
IV. S.B. 80 CAPS
A. Compensatory On April 7, 2005, the Ohio General Assembly passed S.B. 80 which also limits the intentional tortfeasor's liability. S.B. 80 applies to a tort action which is any civil action for damages for injury. R.C. §2315.18(A)(7). This includes an intentional tort, but not wrongful death or medical malpractice claims.
This law does not cap economic damages. R.C. §2315.18(B)(1). However, non-economic damages are capped at $250,000.00 or three times the economic loss, up to $350,000.00, unless a plaintiff suffers catastrophic injuries - a permanent and substantial physical deformity, loss of use of limb, a bodily organ, permanent physical function injury or a wrongful death. R.C. §2315.18(B)(2)&(3).
Assume the Plaintiff cannot prove catastrophic injuries in our example. Non-economic damages are reduced from $950,000.00 to $250,000.00. The most that can be collected from Def A is now $30,000.00 (10% of $50,000.00 is $5,000.00; (10% of $250,000 is $25,000.00). Rack another one up for the intentional tortfeasor!
B. Punitive Punitive damages for individuals and small employers (100 and under) are also capped at two times compensatory damages or 10% of net worth, whichever is lower (R.C. §2315.21(D)(2)(a)). However, if Defendant acted with a specific intent and Defendant was convicted or pled guilty to this type of crime, this cap is inapplicable (R.C. §2315.21(D)(6)). Note this exception only applies if the intentional tortfeasor is prosecuted and found guilty under the much higher criminal burden of proof—beyond a reasonable doubt.
In a civil action for punitive damages, a plaintiff must the defendant's culpability by clear and convincing evidence.
Applying this to our example, assume a jury awards $1 million in punitive damages against Defendant A. A is only liable for $30,000.00 in compensatory damages after applying joint and several and the S.B. 80 caps. Defendant A's $1 million punitive damage award could be reduced to $60,000.00 under the unfair literal wording of this "reform" bill. Query - is this a cap on a cap?
V. CONCLUSION
An innocent victim of an intentional tort in Ohio now has much less potential recovery due to the virtual elimination of joint and several liability, lost percentage of fault for liable named non-parties, caps on compensatory and punitive damages and questionable liability insurance coverage.
Workplace intentional torts now require deliberate intent and are also capped on compensatory and punitive damages. Insurance for deliberate intent torts is probably void against public policy except for statutory inferred intent by deliberate safety guard removal.
S.B. 120 and S.B. 80 serve absolutely no utilitarian value to an innocent, unfortunate victim of an intentional tort in Ohio. Rather than aid the innocent victim, the Ohio General Assembly chose to insulate and protect the worst civil offenders—the intentional tortfeasor.
