By Timothy P. Heather, Esq.

Benjamin, Yocum & Heather, LLC



            In its December 28, 2007 decision in Safeco Insurance Company v. Federal Insurance Company, 2007-Ohio-7068, the Hamilton County Court of Appeals was asked to determine whether a homeowners’ insurance policy and an umbrella policy obligated the issuing insurance company to defend and indemnify when its insureds were sued for negligence relating to the intentional and criminal conduct of their child, who also was an insured.  The Court held that coverage was, indeed, afforded to the parents under the policies. 


            Benjamin White, who was then seventeen years old, tried to kill Casey Hillmer.  He grabbed the thirteen year old while she was jogging, dragged her into the woods, and stabbed her repeatedly in the neck and her side.  After this attack, White pled guilty to attempted murder and felonious assault and was sentenced to ten years in prison. 


            Casey Hillmer and her parents sued White and his parents, Lance and Diane White.  In the lawsuit, the Hillmers claimed that Mr. and Mrs. White had been negligent for failing to properly supervise their son and for entrusting him with a dangerous instrument.  The case proceeded to a jury trial and, through a jury interrogatory, the jury determined that Mr. and Mrs. White had been negligent and that their negligence had proximately caused injury to the Hillmers.  The jury awarded 6.5 million dollars in compensatory damages to the Hillmers and determined that Mr. and Mrs. White were responsible for 70% of that amount. 


            The White’s insurance policy excluded coverage for injuries caused by the intentional conduct of an insured.  The policy also contained a severability of insurance clause which stated that “this insurance applies separately to each insured.”  The trial court concluded that the severability clause rendered the exclusion ambiguous. 


            The Hamilton County Court of Appeals agreed.  First, the Court concluded that, “Ohio Public Policy permits a party to obtain liability insurance coverage for negligence related to intentional conduct when that party does not commit the intentional act.”  The Court then determined that the injury was an “occurrence” under the policy, stating that “when an insurance policy defines an “occurrence” as an “accident,” that definition will include allegations of negligence even when the negligence relates to the failure to prevent intentional conduct.” 







            The Court then held that the intentional conduct exclusion in the policy was rendered ambiguous by the severability of insurance clause in the policy.  Stated the court:  “When determining coverage, we examine the insurance contract as a whole and presume that the intent of the parties is reflected in the language used in the policy.  When reading the severability condition in conjunction with the exclusions in the Safeco policies, we hold that the exclusions are ambiguous.  Construing that ambiguity in favor of the insureds, in light of the policyholder expectation recognized in Doe, we hold that the exclusions for intentional conduct do not apply to insureds who have been merely negligent, when the policies contain language indicating that coverage applies “separately to each insured.”


            This case presents a fine example of the longstanding legal tenet that any ambiguities in a contract are always resolved against the insurer and in favor of the insured.


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