[Cite as Ozvath v. Buckeye Union Ins. Co., 196 Ohio App.3d 658, 2011-Ohio-5814.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO 

OZVATH, : 

Appellee and : C.A. CASE NO. 24364 

Cross-Appellant, 

v. : T.C. NO. 06CV6132 

BUCKEYE UNION INSURANCE : (Civil appeal from 

COMPANY, Common Pleas Court) 

Appellant and : 

Cross-Appellee. 

 . . . . . . . . . . 

O P I N I O N

Rendered on the 10th day of November , 2011. 

 . . . . . . . . . . 

Dianne F. Marx, Toby K. Henderson, and Scott S. Davies, for appellee and 

cross-appellant. 

Martin T. Galvin and Marianne Barsoum Stockett, for appellant and 

cross-appellee. 

 . . . . . . . . . . 

FROELICH, Judge. 

{¶ 1} This appeal arises out of a dispute between Charles Ozvath and Buckeye 

Union Insurance Company over whether Buckeye (now Continental Insurance 

Company) was required to defend Ozvath in a collection action filed by Robert Harbin 

and the extent to which Buckeye was required to reimburse Ozvath for his attorney fees 

and settlement costs. By way of summary judgment, the trial court found that 
2

Continental (the successor by merger with Buckeye) had a duty to defend Ozvath in the 

collection action, but did not have to indemnify Ozvath for the amount he paid in a 

settlement with Harbin. After a hearing, the court ordered Continental to pay some, but 

not all, of the attorney fees and prejudgment interest that Ozvath sought from 

Continental. 

{¶ 2} Continental appeals, claiming that the trial court erred in determining that 

the insurance company had a duty to defend Ozvath and in granting attorney fees to 

Ozvath. Ozvath cross-appeals, claiming that the trial court should have ordered 

Continental to indemnify Ozvath for the amount of the collection-action settlement and 

that it erred in reducing the amount of claimed attorney fees and prejudgment interest. 

{¶ 3} For the following reasons, the trial court’s judgment in favor of Ozvath is 

reversed, and the case is remanded for the trial court to enter judgment in favor of 

Continental. 

I 

{¶ 4} In 1994, Robert Harbin, an employee of Ohi-Tec Manufacturing, Inc., was 

injured at work by a 150-ton mechanical press, resulting in the amputation of two 

fingers and the loss of use of another finger. Harbin sued Ohi-Tec in the Clark County 

Common Pleas Court for his personal injuries, and he alleged intentional tort, 

negligence, and punitive damages; he also claimed that the employment-intentional-tort 

statute (R.C. 2745.01) was unconstitutional. Buckeye defended Ohi-Tec under a 

reservation of rights pursuant to an insurance policy issued to Ohi-Tec (and of which 

Charles Ozvath was a named insured). Buckeye informed Ohi-Tec that while the 

policy excluded claims based on intentional acts, the policy would “provide indemnity for 
3

any damages which would be awarded as a result of the negligence claims made in 

Count 2.” Ozvath was not named as a defendant in the personal-injury action. 

{¶ 5} After a jury trial, a jury awarded Harbin $750,000 in compensatory damages 

on his employer-intentional-tort claim and $300,000 in punitive damages. Ohi-Tec 

moved for judgment notwithstanding the verdict (“JNOV”), which the trial court granted; 

the trial court also stated in its decision that if the appellate court reversed the judgment 

of the trial court on the JNOV, the trial court provisionally granted Ohi-Tec’s motion for a 

new trial. On June 14, 2002, we reversed the trial court and ordered it to enter 

judgment in favor of Harbin, as found by the jury. Harbin v. Ohi-Tec Mfg., Inc., Clark 

App. No. 2001 CA 70, 2002-Ohio-2923. The parties represent that Harbin sought to 

collect the judgment from Buckeye, but he was unsuccessful. 

{¶ 6} In August 2002, Harbin brought suit (“the collection action”) in the 

Montgomery County Common Pleas Court against Charles Ozvath, his wife, and his 

three sons (all of whom were allegedly owners of Ohi-Tec) and Ohi-Tec. Harbin stated 

in his complaint that Ohi-Tec had failed to satisfy the employer-intentional-tort 

judgment, and through various claims of fraud, Harbin sought to pierce Ohi-Tec’s 

corporate veil. Stated generally, Harbin alleged that Ozvath had fraudulently 

transferred the assets of Ohio Pressed Steel (an alleged predecessor company of 

Ohi-Tec) to himself (Ozvath), created Ohi-Tec, and then fraudulently transferred shares 

of Ohi-Tec to his sons.1

{¶ 7} In early 2003, Ohi-Tec filed for protection under Chapter 11 of the United 

 1

Specifically, Harbin’s complaint brought claims of piercing the corporate veil (Counts 1 and 2), 

successor liability/constructive trust (Count 3), violation of the Ohio Fraudulent Transfer Act (Count 4), 

receivership (Count 5), and punitive damages (Count 6). 
4

States Bankruptcy Code, and the collection action was stayed. Ohi-Tec also removed 

the collection action to federal district court. In March 2005, the federal district court 

remanded the collection action to the Montgomery County Common Pleas Court, and 

the bankruptcy court granted Harbin derivative standing to pursue the collection action 

against the Ozvaths in the common pleas court. The bankruptcy stay was lifted in April 

2005. 

{¶ 8} In January 2006, Harbin filed a second amended complaint in the collection 

action, which indicated that he was pursuing the case against the Ozvaths with 

derivative standing for the bankruptcy estate of Ohi-Tec. In March 2006, Ozvath filed a 

notice of claim with Buckeye seeking to have Buckeye defend him against Harbin’s 

collection action and to indemnify him against any damages. On May 23, 2006, 

Buckeye notified Ozvath that it was denying coverage because the complaint alleged 

intentional acts, it did not allege an “occurrence” as defined by the policy, and punitive 

damages are not covered as a matter of public policy. Harbin filed a third amended 

complaint in the collection action in June 2006. 

{¶ 9} In August 2006, Ozvath initiated this action against Buckeye, seeking a 

declaratory judgment and damages for breach of contract. Ozvath requested that the 

trial court “declare that Buckeye is obligated to provide coverage under the Policy to Mr. 

Ozvath for the Montgomery County Collection Case, including reimbursement of 

defense fees and costs, payment of future defense fees and costs and indemnification 

for any judgment (however unlikely) against Mr. Ozvath.” Ozvath also sought damages 

for the attorney fees and costs that he had expended in defending himself in the 

collection action. 
5

{¶ 10} The parties filed cross-motions for summary judgment on Buckeye’s (now 

Continental’s) alleged duty to defend and to indemnify Ozvath in the collection action. 

The trial court concluded that Continental had a duty to defend Ozvath in the collection 

action, but did not have a duty to indemnify Ozvath. (While motions in the 

declaratory-judgment/breach-of-contract case were pending in the trial court, the 

collection action settled for $315,000.) The court subsequently held hearings on the 

amount of attorney fees and prejudgment interest that Continental owed to Ozvath. 

After a hearing, the court awarded attorney fees and prejudgment interest to Ozvath, 

although in an amount less than what Ozvath had requested. 

{¶ 11} Continental appeals from the trial court’s rulings. Ozvath has 

cross-appealed. We find Continental’s first assignment of error to be dispositive. 

II 

{¶ 12} Continental’s first assignment of error states: 

{¶ 13} “The trial court erred when it determined that appellant [Continental] had a 

duty to provide a defense to Charles Ozvath in certain underlying litigation under the 

terms of the subject insurance policy.” 

{¶ 14} In its first assignment of error, Continental claims that the trial court erred 

in granting summary judgment to Ozvath on his claim that Continental had a duty to 

defend him in the collection action. 

{¶ 15} “The purpose of a motion for summary judgment is to test whether 

genuine issues of material fact exist such that a trial is necessary to resolve those 

issues.” Abroms v. Synergy Bldg. Sys., Montgomery App. No. 23944, 

2011-Ohio-2180, ¶ 34. Summary judgment should be granted only if no genuine issue 
6

of material fact exists, the moving party is entitled to judgment as a matter of law, and 

reasonable minds can come to but one conclusion, which is adverse to the nonmoving 

party. Civ.R. 56; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66. 

{¶ 16} Upon a motion for summary judgment, the moving party bears the initial 

burden of showing that no genuine issue of material fact exists for trial. Dresher v. Burt

(1996), 75 Ohio St.3d 280, 292-293. Once the moving party satisfies its burden, the 

nonmoving party may not rest upon the mere allegations or denials of the party’s 

pleadings. Id.; Civ.R. 56(E). Rather, the burden then shifts to the nonmoving party to 

respond, with affidavits or as otherwise permitted by Civ.R. 56, setting forth specific 

facts that show that there is a genuine issue of material fact for trial. Id. Throughout, 

the evidence must be construed in favor of the nonmoving party. Id. 

{¶ 17} An appellate court reviews summary judgments de novo, meaning that we 

review such judgments independently and without deference to the trial court’s 

determinations. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588. 

{¶ 18} “An insurance policy is a contract between the insurer and the insured. If 

we must interpret a provision in the policy, we look to the policy language and rely on 

the plain and ordinary meaning of the words used to ascertain the intent of the parties 

to the contract. We examine the contract as a whole, which means that an 

endorsement is read as though it is within the policy. 

{¶ 19} “* * * [T]he duty to defend is broader than and distinct from the duty to 

indemnify. The duty to defend is determined by the scope of the allegations in the 

complaint. If the allegations state a claim that potentially or arguably falls within the 

liability insurance coverage, then the insurer must defend the insured in the action. But 
7

if all the claims are clearly and indisputably outside the contracted coverage, the insurer 

need not defend the insured.” (Citations omitted.) Ward v. United Foundries, Inc., 

129 Ohio St.3d 292, 2011-Ohio-3176, ¶18-19. 

{¶ 20} It is undisputed that Ozvath is a named insured on the Comprehensive 

Business Policy issued by Buckeye to Ohi-Tec for the period of June 14, 1994, to July 

14, 1995. That policy included a Commercial General Liability Coverage Part and a 

Special Employers Liability Coverage Form (Stop-Gap Endorsement). The 

Commercial General Liability Coverage Part provided: 

{¶ 21} “SECTION I - COVERAGES 

{¶ 22} “COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE 

LIABILITY 

{¶ 23} “1. Insuring Agreement 

{¶ 24} “a. We [Buckeye] will pay those sums that the insured becomes legally 

obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which 

this insurance applies. We will have the right and duty to defend any ‘suit’ seeking 

those damages. We may at our discretion investigate any ‘occurrence’ and settle any 

claim or ‘suit’ that may result. * * * 

{¶ 25} “b. This insurance applies to ‘bodily injury’ and ‘property damage’ only if: 

{¶ 26} “(1) The ‘bodily injury’ or ‘property damage’ is caused by an ‘occurrence’ 

that takes place in the ‘coverage territory;’ and 

{¶ 27} “(2) The ‘bodily injury’ or ‘property damage’ occurs during the policy 

period. 

{¶ 28} “* * * 
8

{¶ 29} “2. Exclusions. 

{¶ 30} “This insurance does not apply to: 

{¶ 31} “a. ‘Bodily injury’ or ‘property damage’ expected or intended from the 

standpoint of the insured. * * * 

{¶ 32} “e. ‘Bodily injury’ to: 

{¶ 33} “(1) An employee of the insured arising out of and in the course of the 

employment by the insured * * * 

{¶ 34} “This exclusion applies: 

{¶ 35} “(1) Whether the insured may be liable as an employer or in any other 

capacity; and 

{¶ 36} “(2) To any obligation to share damages with or repay someone else who 

must pay damages because of the injury.” 

{¶ 37} “Bodily injury” is defined as “bodily injury, sickness, or disease sustained 

by a person, including death resulting from any of these at any time.” “Occurrence” 

means “an accident, including continuous or repeated exposure to substantially the 

same harmful conditions.” 

{¶ 38} The Special Employers Liability Coverage Form (Stop-Gap Endorsement) 

further provides: 

{¶ 39} “SECTION I - COVERAGE 

{¶ 40} “SPECIAL EMPLOYERS LIABILITY 

{¶ 41} “1. Insuring Agreement 

{¶ 42} “a. We will pay those sums that the insured becomes legally obligated to 

pay as ‘damages’ because of a ‘coverage incident’ to which this insurance applies. 
9

We will have the right and duty to defend any ‘suit’ seeking those damages. * * * 

{¶ 43} “b. ‘Damages’ because of a ‘coverage incident’ include damages claimed 

by any person or organization for care, loss of services, or death resulting at any time 

from the ‘coverage incident.’ 

{¶ 44} “2. Exclusions. 

{¶ 45} “This insurance does not apply to: 

{¶ 46} “a. A ‘coverage incident’ involving an employee employed in violation of 

law: 

{¶ 47} “(1) With your actual knowledge or that of any of your partners or 

executive officers; or 

{¶ 48} “(2) With respect to the payment of any punitive or exemplary ‘damages.’ 

{¶ 49} “* * * 

{¶ 50} “f. ‘Bodily injury’ intentionally caused or aggravated by you, or ‘bodily 

injury’ resulting from an act which is determined to have been committed by you with 

the belief that an injury is substantially certain to occur.” 

{¶ 51} “ ‘Coverage incident’ is defined as ‘bodily injury,’ by accident or by 

disease, to any of your employees which: 

{¶ 52} “a. Arises out of and in the course of the injured employee’s employment 

by you; and 

{¶ 53} “b. Occurs in the ‘coverage territory.’ ” 

{¶ 54} In seeking summary judgment in the 

declaratory-judgment/breach-of-contract case on its duty to defend Ozvath in Harbin’s 

collection action, Continental focused on the allegations in Harbin’s complaint against 
10

Ozvath in the collection action. Continental argued that “all such allegations contained 

in the Complaint are based on intentional acts committed by Mr. Ozvath, which would 

serve to pierce the corporate veil and hold him personally liable for any judgments 

rendered against Ohi-Tec. Consequently, as this Complaint is not alleging an 

occurrence that is covered under the Buckeye Union policy, a duty to defend or 

indemnify would not arise.” Continental further argued: 

{¶ 55} “Indeed, even if that coverage should be provided to Mr. Ozvath as the 

Montgomery County Collections Case stems from the Clark County Personal Injury 

Lawsuit, Buckeye still does not have a duty to defend or indemnify as a jury has already 

adjudicated that the injury sustained by Mr. Harbin was an intentional tort substantially 

certain to occur from the standpoint of the insured, Ohi-Tec. Consequently, the 

allegations contained in the Montgomery County Collections Complaint allege that Mr. 

Ozvath should stand in the shoes of Ohi-Tec as he served as the ‘alter-ego’ of the 

corporation.” 

{¶ 56} In response, Ozvath argued that there was “a substantial and direct 

connection between the Personal Injury Litigation and the Collection Litigation. * * * 

[O]nly one loss occurred with respect to Mr. Harbin – the damages caused by his bodily 

injury. The alleged wrongful acts of Chuck Ozvath * * * did not cause a separate injury 

or loss. Instead, in the Collection Litigation, Mr. Harbin alleges that Chuck Ozvath 

committed wrongful acts in an attempt to avoid paying for the loss – the judgment in the 

Personal Injury Litigation. Thus, * * * the Personal Injury Litigation judgment and the 

fraudulent transfers alleged in the Collection Litigation are intertwined, directly 

connected and not remote from each other.” 
11

{¶ 57} Focusing on the personal-injury action, Ozvath further argued that the 

injury to Harbin constituted an “occurrence” within the meaning of the insurance policy 

and that “there is nothing in the Personal Injury Litigation that suggests that Mr. Harbin’s 

injuries were anything but an accident from Chuck Ozvath’s perspective.” Ozvath 

asserted that because he was not a party to the personal-injury action, imputing the 

jury’s determination that Ohi-Tec had committed an intentional tort to him would violate 

due process. In short, Ozvath argued that there was “no break in causation and there 

[was] no intervening cause relieving [Continental] of its obligation to defend Chuck 

Ozvath.” 

{¶ 58} In concluding that Continental had a duty to defend Ozvath in the action, 

the trial court adopted Ozvath’s reasoning. It stated that the collection action would not 

exist without the injury to Harbin and that the claims raised in the collection action were 

“insufficient on their own to sustain a cause of action.” The trial court considered the 

allegations in both the personal-injury and collection actions and found that Harbin’s 

injury was a “bodily injury” that constituted an “occurrence” under the policy. The court 

determined that Section I.A.2.a of the General Liability Coverage Part did not apply, 

because “to hold an individual not a party to [the] jury trial as having intended the injury 

is a leap of logic and deprivation of due process rights that this Court will not make.” 

{¶ 59} The trial court further concluded that the stopgap endorsement did not 

relieve Continental of its obligation to defendant Ozvath in the collection action. The 

trial court found that Ozvath was not an insured under the stopgap form, because that 

endorsement applied to employers, and Ohi-Tec–not Ozvath–was Harbin’s employer. 

The court reiterated that there had been no showing that Ozvath intended the injury to 
12

Harbin. 

{¶ 60} As stated above, whether Continental had a duty to defend Ozvath in the 

collection action depends upon whether the allegations in the collection action’s 

complaint state a claim that potentially or arguably falls within the liability-insurance 

coverage. Ozvath argues that to decide this issue, we must view the allegations in the 

collection action in light of the personal-injury action, in accordance with Danis v. Great 

Am. Ins. Co., 159 Ohio App.3d 119, 2004-Ohio-6222. 

{¶ 61} In Danis, a predecessor of Waste Management of Ohio had purchased 

certain companies from Danis Industries Corporation, including a subsidiary that 

managed a landfill known as Valleycrest. Many years after the sale, Waste 

Management was informed that it was a potentially responsible party under the 

Comprehensive Environmental Response, Compensation, and Liability Act 

(“CERCLA”), and it demanded indemnification from Danis for response costs. The 

parties settled the claim with Danis’s agreement to indemnify Waste Management for 

“covered claims,” which included claims related to pollution. Shortly before executing 

the settlement, Danis underwent a major corporate restructuring, referred to by the 

parties as a “recapitalization/split-off.” According to later allegations, the split was 

designed to insulate a profitable subsidiary of Danis from existing and future 

environmental liabilities to Waste Management. 

{¶ 62} When Waste Management later sought indemnification from Danis on a 

new claim relating to toxic exposure at Valleycrest, Danis informed Waste Management 

that it lacked the resources to satisfy its obligations for both the CERCLA costs and the 

new claim. Waste Management filed a federal complaint against Danis and various 
13

officers of the company, alleging wrongful business conduct concerning the earlier 

settlement and restructuring. Danis and its officers sought coverage and a defense 

from its insurer, Great American. After Great American denied coverage and refused 

to advance costs for the lawsuit, Danis and the individuals filed a complaint in state 

court for breach of contract and declaratory judgment. The trial court found in favor of 

the Danis plaintiffs (i.e., that Great American did have a duty to defend), finding that the 

claims by Waste Management were not brought because of any pollution, but because 

of its Danis’s independent and intervening acts of allegedly wrongful business 

transactions. 

{¶ 63} On appeal, we reversed. Initially, we reviewed Danis’s policy with Great 

American (which covered all the Danis plaintiffs). The policy was basically a directors 

and officers insurance policy, which covered the wrongful-business claims, but 

excluded claims “ ‘based upon, arising out of, [or] relating to * * * seepage, pollution, 

radiation, emission, or contamination of any kind.’ ” Turning to the allegations in the 

complaint, we stated: 

{¶ 64} “In the present case, only one loss occurred, and that is the damage 

caused by the polluted site. The acts of the Danis companies and their directors and 

officers, whether preliminary, concurrent, or subsequent, did not cause a separate injury 

or loss; instead, the alleged wrongful acts were an attempt to avoid paying for the loss. 

This is not the typical situation in which one party commits a tort, and the negligent or 

wrongful act of another party operates to cause either sharing or a complete release of 

liability for the injury. To the contrary, the same parties (the Danis companies and their 

affiliates) are allegedly responsible for the entire loss. 
14

{¶ 65} “For a party to be relieved of liability, ‘a break in the chain of causation 

must take place. A break will occur when there intervenes between an agency creating 

a hazard and an injury resulting therefrom another conscious and responsible agency 

which could or should have eliminated the hazard. However, the intervening cause 

must be disconnected from the negligence of the first person and must be of itself an 

efficient, independent, and self-producing cause of the injury.’ 

{¶ 66} “To be an intervening cause, ‘ “the second negligent act must be both 

‘independent’ and ‘new.’ In the context of this analysis, the second act is ‘independent’ 

from the original act if it was not brought into operation by the original act; i.e., the 

second act must not have occurred as a result of the first. To be considered ‘new,’ the 

second act must not have been reasonably foreseeable when the original act 

occurred.” ’ 

{¶ 67} “Applying the above concepts to the present case, we find that the claims 

involved in the federal [business tort] case are not independent of the original pollution 

settlements. Instead, the underlying settlements are part of the necessary predicate 

for liability of the Danis defendants in the federal case. The original pollution 

settlements and the alleged illegal transfers are intertwined, are directly connected, and 

are not remote from each other.” (Citations omitted.) Danis, 159 Ohio App.3d 119, 

2004-Ohio-6222, at ¶ 54-57. We thus concluded that the pollution exclusion in the 

Great American policy applied to the federal business tort action and that the trial court 

had erred in granting summary judgment to the Danis plaintiffs on Great American’s 

duty to advance costs. 

{¶ 68} In the present case (and unlike in Danis), the allegations of wrongful 
15

business practices are not covered by the Buckeye policy. Rather, the Buckeye policy 

provides coverage to Ozvath (and Ohi-Tec) only for “bodily injury” or “property damage.” 

 Whereas Great American looked to the prior events to apply an exclusion in Danis, 

Ozvath looks to Harbin’s personal-injury action to find a “bodily injury” or a “coverage 

incident” and thus to apply a duty to defend/coverage under the policy. 

{¶ 69} Even if we were to view the personal-injury action and the collection action 

together, we find no claim that requires Continental to defend Ozvath in the collection 

action. The General Liability Coverage Part requires Continental to pay any sums that 

“the insured becomes legally obligated to pay as damages because of ‘bodily injury’ 

* * * to which this insurance applies.” It further provides that Continental has the duty 

to defend against any suit seeking such damages. The injury to Harbin’s hand 

constituted a “bodily injury.” However, the policy excludes coverage for bodily injury to 

“an employee of the insured arising out of and in the course of the employment by the 

insured” as well as bodily injury where the injury is “expected or intended from the 

standpoint of the insured.” With respect to Ohi-Tec, Harbin’s employer, the policy did 

not apply to Harbin’s injury because a jury found that the injury resulted from an 

employer intentional tort, i.e., that Ohi-Tec knew that the injury was substantially certain 

to occur. 

{¶ 70} Ozvath argued, and the trial court agreed, that the jury in the 

personal-injury action did not make any determination with respect to Ozvath (because 

Ozvath was not a party to that action), and there were no allegations that Ozvath had 

personally intended or expected Harbin to be injured. In this respect, the trial court 

considered only the allegations in the personal-injury action and did not consider the 
16

allegations in the collection action. 

{¶ 71} The complaint in the collection action sought to recover on the judgment 

against Ohi-Tec for its employer intentional tort against Harbin; the complaint in the 

personal-injury action did not include any claim against Ozvath personally. However, 

the collection-action complaint alleged that “Charles Ozvath exercised such control and 

dominion over Ohi-Tec Manufacturing, Inc. that Ohi-Tec Manufacturing, Inc. has not 

had and/or does not have a separate mind, will, or existence of its own, and/or 

Defendant is the mere ‘alter ego’ of Ohi-Tec Manufacturing, Inc.” Harbin further 

alleged that Ozvath had engaged in fraudulent conduct to “protect himself from liability 

for his own misdeeds, including but not limited to committing intentional tortious conduct 

to employees.” Through these and other allegations, Harbin has alleged that Ozvath 

stands in the shoes of Ohi-Tec and that Ozvath had the same intent as Ohi-Tec. In 

essence, Harbin has claimed that Ozvath/Ohi-Tec expected or intended the bodily 

injury to Harbin and that Ozvath engaged in fraudulent business practices with respect 

to Ohi-Tec in order to avoid personal liability for the employer intentional tort and to 

eliminate any probability of collection by Harbin from the corporation. 

{¶ 72} Continental represented Ohi-Tec in the personal-injury action due to 

allegations of negligence by the corporation, and such claims were arguably within 

Ohi-Tec’s coverage. However, there were no allegations in the collection action 

related to negligence, as the judgment in the personal-injury action was based solely on 

an employer intentional tort. 

{¶ 73} Thus, reading the personal-injury and collection complaints together, 

Harbin’s original complaint in the collection action did not allege “ ‘bodily injury’ * * * to 
17

which this insurance applies.” The collection action did not involve negligence and, 

instead, sought through various business-fraud torts to recover employer-intentional-tort 

damages, for which Ozvath was allegedly responsible as the alter ego of Ohi-Tec, with 

the same intent, expectations, and beliefs as the corporation. Such a claim is 

excluded under the Buckeye policy. And under the terms of the Buckeye policy, 

Continental had no duty to defend Ozvath against a suit that does not seek damages 

for “ ‘bodily injury’ * * * to which this insurance applies.” Accordingly, the trial court 

erred in determining that Continental had a duty to defend Ozvath in the collection 

action. Rather, the trial court should have determined, as a matter of law, that 

Continental had no duty to defend Ozvath in the collection action. 

{¶ 74} We further note that in January 2006, Harbin filed a second amended 

complaint in the collection action, which changed the nature of that litigation. A similar, 

third amended complaint was filed in June 2006. The caption of the third amended 

complaint identified the plaintiff as “Robert Harbin, with derivative standing, for the 

Estate of Ohi-Tec Manufacturing, Inc.” The body of the complaint further indicated that 

the bankruptcy court had granted Harbin derivative standing to pursue claims against 

Ozvath and his family “on behalf of the Estate of Ohi-Tec.” The various claims alleged 

that Ozvath’s actions had caused loss to the estate of Ohi-Tec and creditors of Ohi-Tec. 

 Consequently, the third amended complaint no longer directly sought payment from 

Ozvath for the employer-intentional-tort judgment. Rather, it sought, among other 

things, a “judgment that one [or] more Defendants is liable for the debts of the Estate of 

Ohi-Tec Manufacturing, Inc. as shall be determined in later proceedings in the matter of

In re Ohi-Tec Manufacturing, Inc., currently pending in the United States Bankruptcy 
18

Court for the Southern District of Ohio.” Although Harbin’s standing was based on his 

status as a judgment creditor of Ohi-Tec, the direct connection between Harbin’s 

personal-injury judgment and the derivative action was more attenuated, as Harbin 

sought damages for Ozvath’s allegedly fraudulent business conduct on behalf of the 

Ohi-Tec bankruptcy estate and its other creditors as well as himself. 

{¶ 75} Continental’s first assignment of error is sustained. 

III 

{¶ 76} Continental raises the following additional assignments of error: 

{¶ 77} “The trial court erred in not determining that appellant CNA was prejudiced 

by Charles Ozvath’s extremely late notice of a claim. 

{¶ 78} “The trial court erred in making a supplemental award of attorney fees to 

appellee Mr. Ozvath. 

{¶ 79} “The trial court erred by awarding prejudgment interest.” 

{¶ 80} Ozvath also raises the following cross-assignments of error: 

{¶ 81} “The trial court erred in overruling Chuck Ozvath’s motion for summary 

judgment for indemnification of the collection litigation settlement amount. 

{¶ 82} “The trial court erred in determining the amount of attorney fees and 

prejudgment interest to award to Chuck Ozvath.” 

{¶ 83} In light of our disposition of Continental’s first assignment of error, 

Continental’s additional assignments of error and Ozvath’s cross-assignments of error 

are overruled as moot. 

IV 

{¶ 84} The trial court’s judgment in favor of Ozvath is reversed, and the case is 
19

remanded for the trial court to enter judgment in favor of Continental. 

Judgment reversed 

and cause remanded. 

 . . . . . . . . . . 

DONOVAN and HALL, JJ., concur.