VIP Development, Inc. v. Cincinnati Insurance

Per Curiam. The primary issue presented here is whether appellant had a duty to defend appellee in the actions brought by Jones and Pridemore. We hold in the negative and reverse the decision of the court of appeals. The instant policy provided coverage for bodily injuries resulting from an “occurrence,” which is defined as “an accident, including continuous or repeated exposure to conditions, which result in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” (Emphasis added.) The policy excluded coverage for bodily injuries to [338] employees of appellee arising out of and in the course of their employment. Additionally, the policy provided that the appellant would undertake the defense of any suit alleging injury or property damage within coverage even if the allegations of the suit were groundless, false or fraudulent. The court of appeals held that appellant owed appellee a duty to defend the allegations of its employees that they were intentionally injured by appellee because the claim was potentially or arguably within the policy coverage — the issue in conflict herein. This court recently addressed the issue in conflict in Wedge Products, Inc. v. Hartford Equity Sales Co. (1987), 31 Ohio St. 3d 65, 31 OBR 180, 509 N.E. 2d 74. Confronted with the same policy language used in the cause sub judice, this court held in the syllabus that “an intentional tort allegedly committed by an employer against its employee is not covered by an insurance policy which provides protection for bodily injuries ‘neither expected nor intended’ by the employer.” (Emphasis added.) This court proceeded to find that the defendant-insurer had no duty to defend the plaintiff-insured under the terms of the policy. In reaching this conclusion, the court did consider our decision in Willoughby Hills v. Cincinnati Ins. Co. (1984), 9 Ohio St. 3d 177, 9 OBR 463, 459 N.E. 2d 555, syllabus, wherein we held: “Where the insurer’s duty to defend is not apparent from the pleadings in the action against the insured, but the allegations do state a claim which is potentially or arguably within the policy coverage or there is some doubt as to whether a theory of recovery within the policy coverage has been pleaded, the insurer must accept the defense of the claim.” The Wedge Products decision distinguished Willoughby Hills by stating at 68, 31 OBR at 182, 509 N.E. 2d at 76: “As in Willoughby Hills, Hartford’s policy states that its duty to defend exists ‘even if any of the allegations of the suit are groundless, false or fraudulent * * *.’ Willoughby Hills, however, does not require a defense where the complaint contains no allegation that states a claim ‘potentially or arguably within the policy coverage.’ There is no doubt here. No theory of recovery within the policy coverage has been pleaded regardless of whether the allegations are true, false, fraudulent or groundless. Thus, Hartford has no duty to defend either action.” We find the decision in Wedge Products to be dispositive of the issue in conflict in the present case as to whether appellant owed appellee a duty to defend the allegations of its employees that they were intentionally injured by appellee. Wedge Products is on point. Accordingly, we reverse the judgment of the court of appeals and the judgment of the trial court is reinstated. Judgment reversed. Moyer, C.J., Locher, Holmes, Wright and H. Brown, JJ., concur. Sweeney and Douglas, JJ., dissent.