[Cite as Ward v. United Foundries, Inc., 129 Ohio St.3d 292, 2011-Ohio-3176.] 

WARD ET AL. v. UNITED FOUNDRIES, INC., APPELLANT, ET AL.;

GULF UNDERWRITERS INSURANCE COMPANY, APPELLEE. 

[Cite as Ward v. United Foundries, Inc., 129 Ohio St.3d 292, 2011-Ohio-3176.] 

Stop-gap endorsement to commercial liability insurance policy — Substantialcertainty intentional tort — Language in a commercial liability insurance 

policy stating that insurance does not apply to bodily injury resulting from 

an act that is “determined” to have been committed by an insured with the 

belief that an injury is substantially certain to occur does not require a 

final determination by a fact-finder before the insurer can refuse to defend 

a claim alleging a substantial-certainty employer intentional tort.

(Nos. 2010-1049 and 2010-1275 — Submitted April 5, 2011 — Decided 

July 6, 2011.) 

APPEAL from and CERTIFIED by the Court of Appeals for Stark County, 

09CA-019, 2010-Ohio-6694. 

__________________ 

LUNDBERG STRATTON, J. 

{¶ 1} This dispute involves the interpretation of a stop-gap endorsement 

to a commercial liability insurance policy that appellee, Gulf Underwriters 

Insurance Company (“Gulf”), issued to appellant, United Foundries, Inc. 

(“United”). United seeks coverage under the policy for its defense in a 

substantial-certainty intentional tort1

 lawsuit filed by a United employee. Gulf 

has denied that it has a duty to defend United because the intentional-tort claims 

 

1. A substantial-certainty intentional tort occurs “when [an] employer does not directly intend to 

injure [an] employee, but acts with the belief that injury is substantially certain to occur.” Penn 

Traffic Co. v. AIU Ins. Co., 99 Ohio St.3d 227, 2003-Ohio-3373, 790 N.E.2d 1199, ¶ 6. 
SUPREME COURT OF OHIO

2 

in the underlying complaint are outside the coverage of the policy. The trial court 

held in favor of United, and the court of appeals reversed. 

{¶ 2} For the reasons that follow, we affirm the judgment of the court of 

appeals. 

Gulf Policy 

{¶ 3} Gulf issued a commercial general liability policy (“CGL policy”) 

to United with an endorsement for employer’s liability coverage, known as a stopgap endorsement. Under Section I of the CGL policy, Gulf agreed to 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” and “to 

defend the insured against any ‘suit’ seeking those damages.” However, under 

that same section of the policy, Gulf had “no duty to defend the insured against 

any ‘suit’ seeking damages for ‘bodily injury’ or ‘property damage’ to which this 

insurance does not apply.” 

{¶ 4} The CGL policy excluded coverage for injuries “expected or 

intended from the standpoint of the insured,” bodily injury to an employee arising 

in the course of employment, and injury to the family of an employee as a 

consequence of the employee’s injury, as well as for contribution claims and 

claims alleging liability under the dual-capacity doctrine. 

Stop-Gap Endorsement 

{¶ 5} The stop-gap endorsement modified the CGL policy by deleting 

the exclusions in Section I of the CGL policy “with respect to ‘bodily injury’ 

included within the ‘employer’s liability hazard’ ” and replacing them with the 

exclusions listed in the stop-gap endorsement. 

{¶ 6} The following exclusion in the stop-gap endorsement is the subject 

of this dispute: 

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

{¶ 8} “* * * 
January Term, 2011 

3

{¶ 9} “e. ‘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.” 

Procedural History 

{¶ 10} David Ward (“Ward”) and his wife filed a complaint against 

Ward’s employer, United, alleging claims for employer intentional tort and 

seeking compensatory and punitive damages and damages for loss of consortium. 

While the case was pending, United filed an action against its insurance agency 

and broker for failure to obtain the coverage that United had requested and against 

Gulf for a declaration that Gulf had a duty to defend and indemnify United for the 

claims asserted by Ward. The cases were eventually consolidated. The trial court 

concluded that if the stop-gap endorsement excluded coverage for substantialcertainty intentional torts, then the Gulf policy was illusory. The court granted 

summary judgment to United on the issue of Gulf’s duty to provide a defense in 

the underlying case. 

{¶ 11} The Fifth District Court of Appeals reversed. The appellate court 

determined that the claims alleged in the underlying complaint were not within 

the coverage provided in the policy; thus, Gulf had no duty to defend or 

indemnify United. The court rejected United’s argument that it is entitled to a 

defense because the underlying tort claim had not yet been “ ‘determined to have 

been committed.’ ” Ward v. United Foundries, Inc., Stark App. No. 09CA-019, 

2010-Ohio-6694, ¶ 83, quoting United’s brief. Instead, the court concluded that 

because the underlying claim was neither potentially nor arguably covered under 

the terms of the policy, Gulf had no duty to defend or indemnify United. Id. 

{¶ 12} The Fifth District certified that its decision was in conflict with the 

decision of the Third District Court of Appeals in Cooper Tire & Rubber Co. v. 

Travelers Cas. & Sur. Co. (Apr. 23, 2007), Hancock App. No. 5-06-40, 2007-
SUPREME COURT OF OHIO

4 

Ohio-1905. And we determined that a conflict exists. 126 Ohio St.3d 1579, 

2010-Ohio-4542, 934 N.E.2d 352. 

{¶ 13} This cause is now before this court upon our determination that a 

conflict exists (case No. 2010-1275) and pursuant to the acceptance of a 

discretionary appeal (case No. 2010-1049), 126 Ohio St.3d 1581, 2010-Ohio4542, 934 N.E.2d 354. 

Certified Conflict 

{¶ 14} We ordered the parties to brief the issue that is stated as follows in 

the court of appeals’ entry certifying the conflict: 

{¶ 15} “Whether an exclusion in a commercial general liability insurance 

policy and/or stop/gap endorsement form, stating the insurance does not apply to 

‘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’ requires a final determination 

made by either a judge or a jury before the defense of a claim for a substantial 

certainty employer intentional tort can be denied.” 

{¶ 16} The parties agree that the stop-gap endorsement excludes coverage 

for a substantial-certainty intentional tort and that if United is liable to Ward in 

the underlying action, Gulf has no duty to indemnify United. We need determine 

only whether the policy obligates Gulf to defend United in the underlying action. 

{¶ 17} United contends that the phrase “an act which is determined to 

have been committed by you with the belief that an injury is substantially certain 

to occur” in the Gulf policy requires Gulf to defend United against any complaint 

alleging a substantial-certainty intentional tort until a fact-finding judge or jury 

has “determined” whether or not United is liable for an intentional tort. 

General Insurance Principles 

{¶ 18} An insurance policy is a contract between the insurer and the 

insured. Pilkington N. Am., Inc. v. Travelers Cas. & Sur. Co., 112 Ohio St.3d 
January Term, 2011 

5

482, 2006-Ohio-6551, 861 N.E.2d 121, ¶ 23. 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. 

Penn Traffic Co. v. AIU Ins. Co., 99 Ohio St.3d 227, 2003-Ohio-3373, 790 

N.E.2d 1199, ¶ 9; Cincinnati Ins. Co. v. CPS Holdings, Inc., 115 Ohio St.3d 306, 

2007-Ohio-4917, 875 N.E.2d 31, ¶ 7. We examine the contract as a whole, which 

means that an endorsement is read as though it is within the policy. Penn Traffic, 

¶ 30. 

{¶ 19} We have held that the duty to defend is broader than and distinct 

from the duty to indemnify. Ohio Govt. Risk Mgt. Plan v. Harrison, 115 Ohio 

St.3d 241, 2007-Ohio-4948, 874 N.E.2d 1155, ¶ 19. The duty to defend is 

determined by the scope of the allegations in the complaint. Id. 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. Id., ¶ 19. But if 

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

insurer need not defend the insured. Id. 

Analysis of Exclusion Language 

{¶ 20} The plain language of the exclusion at issue precludes coverage for 

substantial-certainty intentional torts. The allegations within Ward’s complaint 

fall within this exclusion. United agrees that if it is liable in the underlying case, 

Gulf has no duty to indemnify United. Thus, as the court of appeals below 

concluded, because all the claims are clearly and indisputably outside the 

contracted coverage, Gulf is not required to defend United under the terms of the 

policy. Ward, 2010-Ohio-6694, ¶ 82; Ohio Govt. Risk Mgt., ¶ 19. 

{¶ 21} Nevertheless, in the conflict case, the Third District Court of 

Appeals interpreted the identical language in a policy issued by a different 

company and concluded that the exclusion was ambiguous because it did not 

specify how or by whom the act or failure to act is to be determined. Cooper 
SUPREME COURT OF OHIO

6 

Tire, 2007-Ohio-1905, ¶ 6. The Third District acknowledged that the policy 

specifically excluded liability for substantial-certainty intentional torts, but it 

reasoned that the language implied that there must be a determination by either a 

judge or jury for the exclusion to be enforceable. “Since no judicial determination 

can be made prior to the conclusion of the case, [the insurer] may still have a duty 

to defend without the subsequent liability.” Id. at ¶ 8. 

{¶ 22} We do not agree with that reasoning. There is no language in the 

exclusion that implies that a determination by a fact-finder is required before the 

exclusion can be enforced. Furthermore, even if the phrase were ambiguous, the 

ambiguity would have no legal significance. There is no set of facts under which 

United would be covered under the CGL policy because all potential claims fall 

with the exclusion. Furthermore, the CGL policy provides that Gulf has “no duty 

to defend the insured against any ‘suit’ seeking damages * * * to which this 

insurance does not apply.” 

{¶ 23} United argues that since the exclusion language uses the past 

tense—“an act which is determined to have been committed by you with the 

belief that an injury is substantially certain to occur”—Gulf must provide a 

defense until it has been determined that the employer committed a tort that 

would be excluded by the policy language. We do not find this interpretation, 

which was accepted by the Third District in the conflict case, convincing. 

{¶ 24} United contends that it intended to purchase insurance for 

substantial-certainty intentional torts and that if the stop-gap endorsement does 

not provide a defense or indemnification for substantial-certainty intentional torts, 

then the Gulf policy is illusory and unenforceable. Although the stop-gap 

endorsement may not have added the coverage that United intended, it did add 

coverage for “employer’s liability hazards” that were expressly excluded in the 

CGL policy: coverage for consequential bodily injury (claims by relatives of an 

employee for their injuries resulting as a consequence of the employee’s injury), 
January Term, 2011 

7

claims alleging liability under the dual-capacity doctrine (liability both as 

employer and in another capacity), and contribution or indemnification claims of 

third parties resulting from workplace injuries. When there is some benefit to the 

insured from the face of the endorsement, it is not an illusory contract. State Auto 

Ins. Co. v. Golden (1998), 125 Ohio App.3d 674, 678, 709 N.E.2d 529. 

{¶ 25} United contends that this was not the coverage it intended to 

purchase. But this is an argument for United to assert against the insurance 

agency and broker who procured the policy, not against the insurer. For purposes 

of this action, the plain language of the stop-gap endorsement that United 

purchased is plain, unambiguous, and not misleading, and the policy is not 

illusory. 

Conclusion 

{¶ 26} We answer the certified-conflict question in the negative. An 

exclusion in a commercial general liability insurance policy or stop-gap 

endorsement stating that the insurance does not apply to bodily injury 

intentionally caused or aggravated by an insured, or bodily injury resulting from 

an act that is determined to have been committed by an insured with the belief 

that an injury is substantially certain to occur does not require a final 

determination by either a judge or a jury before the insurer can refuse to defend a 

claim alleging a substantial-certainty employer intentional tort. 

{¶ 27} We agree with the Fifth District Court of Appeals that the claims 

stated in the underlying complaint are neither potentially nor arguably covered 

under the terms of the policy, and thus, Gulf has no duty under the policy to 

defend United. Therefore, we affirm the judgment of the court of appeals. 

Judgment affirmed. 

 O’CONNOR, C.J., and O’DONNELL, LANZINGER, CUPP, and MCGEE 

BROWN, JJ., concur. 

 PFEIFER, J., concurs in judgment only. 
SUPREME COURT OF OHIO

8 

__________________ 

Pelini, Campbell, Williams & Traub, L.L.C., Craig G. Pelini, and Kristen 

E. Campbell, for appellant. 

Zelle, Hofmann, Voelbel & Mason, L.L.P., and Michael R. Cashman; and 

Roetzel & Andress, L.P.A., and Ronald B. Lee, for appellee. 

_____________________