You and the Law



Ohio Intentional Workplace Torts: Deliberate Intent to Injure or Substantial Certainty?

By: Doug Ehlke

Sunday, March 1, 2009
A group of employer workplace intentional-tort cases heard this past February in Ohio’s State Supreme Court is a Clash of the Titans. Friend-of-the-court amicus briefs have been filed by the Ohio Chamber of Commerce, Civil Trial Lawyers Association, Attorney General’s Office, Ohio Manufacturers Association, Independent Business Federation and Self-Insurers Association. Why all the interest? Because the ultimate decision in these Ohio appeals will determine these issues for numerous pending cases:

• Whether the threshold for employer workplace intentional-tort civil liability is raised from the current case-made common-law test of “knowledge that the injury was substantially certain to occur” to the new test of “deliberate intent to cause an employee to suffer an injury.”

• Whether Ohio employers’ stop-gap liability-insurance policies cover jury awards or settlements of employee-brought workplace intentional tort claims.

Intentional-tort claims for significant workplace injuries are still being brought in a number of states. And if employers’ current insurance coverage gets yanked due to insurance companies’ belief that the Ohio law threshold for such claims will be changed to “deliberate intent” (no coverage) from “substantial certainty” (coverage), a staggering shift of liability exposure could shift from insurers to employers, especially in Ohio.

Here’s how lawyers for one friend-of-the-court brief described the situation:

Amantea Nonwovens, LLC operates a manufacturing and warehouse facility in Hamilton County, OH. Amantea was sued for an intentional tort in Victor Nieves-Perez, et al. v. Amantea Nonwovens, LLC, et al., No A0705349, Hamilton County Court of Common Pleas.

At the time of the plaintiff’s injury, Amantea had liability insurance through Cincinnati Insurance Co. (CIC). As part of the package, CIC sold Amantea an Employers Liability Coverage Form—Ohio, covering workplace bodily injuries to employees “caused by an ‘intentional act.” The endorsement defines an “intentional act” as an act that is “substantially certain to cause ‘bodily injury.’” It purports to exclude, however, “acts committed by or at the direction of an insured with the deliberate intent to injure.”

The CIC policy and endorsement were issued September 21, 2005—five months after the effected date of R.C. 2745.01. On September 21, 2006, approximately a month after the plaintiff was injured, CIC renewed Amantea’s policy, including the Employers Liability endorsement. The price charged for the endorsement, however, was raised seven-fold.

CIC initially agreed to defend Amantea in the Nieves-Perez lawsuit under a detailed reservation of rights. CIC recently moved to intervene as a party in the lawsuit for the purposes of 1) seeking a declaration that it has no duty to defend or indemnify, and/or 2) to submit jury interrogatories on the coverage issue, if necessary. CIC’s proposed intervening complaint alleges that it is “against public policy in Ohio for an insurer to insure against intentional torts.”

It is unlikely that Amantea is alone in being sold coverage that the insurer now is disavowing as “against public policy.” Insurance companies have been selling such stop-gap coverage for years. Oddly enough, they have not offered to refund premiums to those who purchased what, by CIC’s account, is illusory coverage.

Amantea’s purpose is not to advocate for either side in this case. Amantea’s concern is that the court’s ruling, should R.C. 2745.01 be upheld, will be used by insurers to abrogate employers’ stop-gap coverage. Furthermore, the court will ultimately be faced with the public policy question of whether workplace intentional-tort claims are insurable under the new law. Amantea requests that the court consider the implications of its ruling upon those interests, which are vital to Ohio employers.

The Ohio tort-reform law being challenged in the Rose Kiminski case as unconstitutional is R.C. 2745.01, which became effective on April 7, 2005. It provides, in pertinent part:

“(A) In an action brought against an employer by an employee, for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be liable unless the plaintiff proves that the employer committed the tortuous act with the intent to injure another or with the belief that the injury was substantially certain to occur.”

“(B) As used in this section, ‘substantially certain’ means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition or death.”

The facts in the Kiminski case under review originated from a power-press coil-stock tip-over injury. Rose Kiminski was employed as a press operator at Metal & Wire Products Co.’s manufacturing facility. On June 30, 2005, she was working at her press when the press ran out of coil. She asked a coworker to operate a forklift to load a new coil into her press. Using the forklift, the coworker retrieved a coil and brought it to Kiminski’s area. The coil weighed approximately 800 lb., and measured 4 to 5 ft. tall. In order to load the coil onto the press, the coworker had to switch the coil upright on the ground to facilitate the transfer. Because the coil roll needed to be balanced and because the supervisor could not be found, Kiminski manually balanced the unstable coil while her coworker attempted to thread the left fork through the coil. The fork bumped the coil. The coil fell onto Kiminski’s legs and feet, causing serious injury.

Kiminski subsequently filed a civil action complaint against her employer. She alleged that her employer acted with the intent to cause injury to its employee by requiring her to participate in the performance of a dangerous activity without proper safety systems, in violation of Ohio’s intentional-tort statute, R.C. 2745.01. As part of her complaint, she asserted that R.C. 2745.01 was unconstitutional. She also asserted a claim against her employer for a common-law employment intentional tort (“substantial certainty”).

The employer, Metal & Wire Products Co., filed and won a summary judgment motion of dismissal at the trial court level, but the attorneys for the plaintiff reversed that on appeal to the Ohio Court of Appeals, Seventh District, Case No. 07-CO-15 (March 18, 2008). The Court of Appeals decision to reverse and declared the Ohio “deliberate act” tort-reform statute as unconstitutional was accepted for review by the Ohio Supreme Court.

Our office has worked on several workplace intentional-tort injury claims and issues, including filing suit with Ohio attorneys against an insurance company on coverage resistance. The issues being heard in the February Ohio Supreme Court Kiminski case hearing are important to employers throughout Ohio and beyond.

If you want a copy of any of the pending Ohio Supreme Court workplace intentional-tort cases being heard, call Christie Carmigiano at PMA or Tami at Ehlke Law Office. MF


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