[Cite as Safeco Ins. Co. of Am. v. White, 122 Ohio St.3d 562, 2009-Ohio-3718.] 

SAFECO INSURANCE COMPANY OF AMERICA, APPELLANT, v. WHITE ET AL.;

FEDERAL INSURANCE COMPANY ET AL., APPELLEES. 

[Cite as Safeco Ins. Co. of Am. v. White, 122 Ohio St.3d 562, 2009-Ohio-3718.] 

When a liability insurance policy defines an “occurrence” as an “accident,” a 

negligent act committed by an insured that is predicated on the 

commission of an intentional tort by another person, e.g., negligent hiring 

or negligent supervision, qualifies as an “occurrence” — Insurancepolicy exclusions that preclude coverage for injuries expected or intended 

by an insured, or injuries arising out of or caused by an insured’s 

intentional or illegal acts, do not preclude coverage for the negligent 

actions of other insureds under the same policy that are predicated on the 

commission of those intentional or illegal acts, e.g., negligent hiring or 

negligent supervision. 

(Nos. 2008-0304 and 2008-0403 — Submitted February 4, 2009 — Decided 

August 4, 2009.) 

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

No. C-070074, 2007-Ohio-7068. 

__________________ 

SYLLABUS OF THE COURT

1. When a liability insurance policy defines an “occurrence” as an “accident,” a 

negligent act committed by an insured that is predicated on the 

commission of an intentional tort by another person, e.g., negligent hiring 

or negligent supervision, qualifies as an “occurrence.” 

2. Insurance-policy exclusions that preclude coverage for injuries expected or 

intended by an insured, or injuries arising out of or caused by an insured’s 

intentional or illegal acts, do not preclude coverage for the negligent 
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actions of other insureds under the same policy that are predicated on the 

commission of those intentional or illegal acts, e.g., negligent hiring or 

negligent supervision. 

__________________ 

 MOYER, C.J.

I 

{¶ 1} Safeco Insurance Company of America (“Safeco”) appeals from a 

decision declaring that Safeco is obliged to defend and indemnify its insureds, 

Lance and Diane White (“the Whites”), in connection with a negligence action 

filed against them after their 17-year-old son, Benjamin, attacked another child. 

{¶ 2} The First District Court of Appeals certified this case pursuant to 

Section 3(B)(4), Article IV of the Ohio Constitution and App.R. 25, concluding 

that its judgment conflicts with judgments from other courts of appeals on two 

questions of law. 

{¶ 3} First, the court of appeals certified a conflict with the Fifth District 

Court of Appeals decision in Torres v. Gentry, Ashland App. No. 06 COA 038, 

2007-Ohio-4781, on the following issue: “When an insurance policy defines an 

‘occurrence’ as an ‘accident’ that results in bodily injury, does an ‘occurrence’ 

include injuries that result from an intentional act when the insured[s] seeking 

coverage are claimed to have been negligent in relation to that intentional act?” 

Second, the court certified a conflict with the Third District Court of Appeals 

decision in United Ohio Ins. Co. v. Metzger (Feb. 8, 1999), Putnam App. No. 12-

98-1, 1999 WL 84201, on the following issue: “When an insurance policy 

excludes an injury ‘which is expected or intended by [an or any] insured * * *’; 

injuries ‘arising out of an illegal act committed by or at the direction of an 

insured’; or ‘any injury caused by a violation of penal law or ordinance 

committed by or with the knowledge or consent of any insured,’ do the exclusions 

become ambiguous when read in conjunction with a ‘Severability of Insurance’ 
January Term, 2009 

3 

condition, in light of the announced expectation by policyholders that their 

negligence will be covered?” We accepted Safeco’s discretionary appeal on the 

same issues and consolidated the cases. 117 Ohio St.3d 1457, 2008-Ohio-1635, 

884 N.E.2d 67. 

{¶ 4} For the following reasons, we answer the first certified question in 

the affirmative, holding that the negligent acts of the Whites are “occurrences” 

under the language of the Safeco policies at issue. However, we decline to 

address the second question, which pertains to potential ambiguities in the policy 

exclusions, because we find the exclusions to be inapplicable in these 

circumstances. Accordingly, we affirm the judgment of the court of appeals and 

hold that the Whites are entitled to coverage under the Safeco policies. 

II 

{¶ 5} In July 2003, 17-year-old Benjamin White attacked and repeatedly 

stabbed Casey Hilmer, the 13-year-old daughter of Steve and Megen Hilmer, as 

she was jogging in their neighborhood. Her injuries were not fatal. Benjamin, 

who lived with his parents, the Whites, at the time of the attack, pleaded guilty to 

attempted murder and felonious assault. The trial court convicted him and 

sentenced him to an aggregate term of ten years in prison. 

{¶ 6} After Benjamin was convicted, the Hilmers sued Benjamin and the 

Whites on multiple claims, including battery against Benjamin and negligent 

supervision, negligent entrustment, and negligent infliction of emotional distress 

against the Whites. The matter proceeded to a jury trial. 

{¶ 7} The jury made several findings relevant to our review. First, the 

jury found that Benjamin had committed a battery, an intentional tort, against 

Casey Hilmer and that his intentional acts had also caused Steve Hilmer to suffer 

emotional distress. Second, the jury found that the Whites had been negligent in 

their supervision of Benjamin, and that this negligence had also injured Casey 

Hilmer and caused Steve Hilmer to suffer emotional distress. Third, the jury 
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found that the Hilmers were owed $6,500,000 in compensatory damages for these 

combined torts. Fourth, the jury found that Benjamin was 30 percent responsible 

for the Hilmers’ injuries and that the Whites were 70 percent responsible. The 

jury also awarded the Hilmers $3,500,000 in punitive damages against Benjamin. 

{¶ 8} At the time of the attack, the Whites had four insurance policies: a 

homeowner’s policy and a separate umbrella policy, both issued by Safeco, a 

second homeowner’s policy issued by appellee Pacific Indemnity Company 

(“Pacific”), and an umbrella policy issued by appellee Federal Insurance 

Company (“Federal”). When the Hilmers filed suit, the Whites sought a defense 

and indemnification from each carrier. Pacific and Federal agreed to defend 

them, but Safeco refused. All, however, expressly denied any obligation to 

indemnify the Whites.

{¶ 9} During the pendency of the suit, Safeco filed the instant action, 

seeking a declaratory judgment that it has no obligation to defend or indemnify 

the Whites in relation to claims arising out of their son’s intentional act. The trial 

court consolidated Safeco’s declaratory-judgment action with the Hilmers’ action, 

and the insurance companies and the Whites filed motions for summary judgment 

on the issue of coverage under the policies. Following the jury’s verdict, 

however, Pacific and Federal withdrew their motions for summary judgment, 

agreed to indemnify the Whites under the terms of their policies, and claimed that 

Safeco should share in the cost. Safeco continued to aver that the Whites were 

not entitled to coverage under its policies. 

{¶ 10} The trial court granted summary judgment in favor of the Whites, 

entering a declaratory judgment that Safeco was required to defend and indemnify 

the Whites in connection with the underlying action. Federal and Pacific 

subsequently settled with the Hilmers on behalf of the Whites and asked the court 

to order Safeco to reimburse Federal and Pacific for Safeco’s share of the Whites’ 

attorney fees and the settlement. 
January Term, 2009 

5 

{¶ 11} On appeal, the First District Court of Appeals affirmed the trial 

court, holding that the Whites’ negligence constituted an “occurrence” pursuant to 

language in the Safeco policies, even though it related “to the failure to prevent 

intentional conduct.” Safeco Ins. Co. of Am. v. Federal Ins. Co., Hamilton App. 

No. C-070074, 2007-Ohio-7068, ¶ 19. The appellate court further held that a 

severability clause in the Safeco policies created an ambiguity with respect to the 

application of an exclusion for injuries caused by the intentional act of another 

insured and that this ambiguity must be read in favor of coverage for the Whites. 

Id. at ¶ 26. 

III 

{¶ 12} Safeco contends that its policies do not provide coverage for the 

Whites’ negligence for two reasons: (1) the injury in this case resulted from an 

intentional act by Benjamin, an insured under the policies, and therefore the act 

was not an “occurrence,” which both policies define as an “accident,” and (2) the 

policies explicitly exclude coverage for the intentional acts of an insured, and the 

severability clause in both policies does not render the language in the 

exclusionary clauses ambiguous. 

{¶ 13} Federal and Pacific argue that Safeco’s policies provide coverage 

because the Whites’ acts were accidental and thus constitute an “occurrence” 

under the policies. Moreover, they contend that the exclusionary language in the 

Safeco policies is ambiguous because of a severability clause that provides that 

the insurance applies separately to each insured. 

{¶ 14} Before we address these arguments, we review the relevant 

provisions in the Safeco policies and our caselaw on the general principles 

applicable when interpreting insurance policies. 

A. The Safeco insurance policies 

{¶ 15} The homeowner’s policy issued by Safeco expressly names Lance 

and Diane White as insureds, and the definition of “insured” contained in the 
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policy includes their son, Benjamin. This policy provides coverage when “a 

claim is made or a suit is brought against an insured for damages because of 

bodily injury or property damage caused by an occurrence to which this coverage 

applies.” According to the policy, “ ‘[o]ccurrence’ means an accident” (emphasis 

added) that results in bodily injury or property damage. The policy expressly 

excludes coverage for bodily injury or property damage that “is expected or 

intended by an insured or which is the foreseeable result of an act or omission 

intended by an insured.” Moreover, the contract excludes coverage for injuries 

“arising out of any illegal act committed by or at the direction of an insured.” 

{¶ 16} The umbrella policy issued by Safeco expressly names Lance 

White as the insured, and the definition of “insured” includes both Diane and 

Benjamin. The contract provides coverage for “personal injury or property 

damage caused by an occurrence,” and “occurrence” is defined as “an accident” 

that results in personal injury or property damage. The umbrella policy excludes 

coverage for “[a]ny injury caused by a violation of a penal law or ordinance 

committed by or with the knowledge or consent of any insured,” as well as for 

“[a]ny act or damage which is expected or intended by any insured.” In addition, 

both policies contain a severability clause that states, “This insurance applies 

separately to each insured.” 

{¶ 17} As we stated in Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 

2003-Ohio-5849, 797 N.E.2d 1256, our task when interpreting an insurance 

policy is to “examine the insurance contract as a whole and presume that the 

intent of the parties is reflected in the language used in the policy.” Id. at ¶ 11, 

citing Kelly v. Med. Life Ins. Co. (1987), 31 Ohio St.3d 130, 31 OBR 289, 509 

N.E.2d 411, paragraph one of the syllabus. Moreover, “[w]e look to the plain and 

ordinary meaning of the language used in the policy unless another meaning is 

clearly apparent from the contents of the policy.” Id., citing Alexander v. Buckeye 
January Term, 2009 

7 

Pipe Line Co. (1978), 53 Ohio St.2d 241, 7 O.O.3d 403, 374 N.E.2d 146, 

paragraph two of the syllabus. 

{¶ 18} We further stated in Galatis that “where the written contract is 

standardized and between parties of unequal bargaining power, an ambiguity in 

the writing will be interpreted strictly against the drafter and in favor of the 

nondrafting party.” Id. at ¶ 13, citing Cent. Realty Co. v. Clutter (1980), 62 Ohio 

St.2d 411, 16 O.O.3d 441, 406 N.E.2d 515. Because the insurer, not the insured, 

typically drafts the language in an insurance policy, “an ambiguity in an insurance 

contract is ordinarily interpreted against the insurer and in favor of the insured.” 

Id., citing King v. Nationwide Ins. Co. (1988), 35 Ohio St.3d 208, 519 N.E.2d 

1380, syllabus. 

{¶ 19} With this policy language and caselaw in mind, we consider the 

issues presented for our review. 

B. Negligence related to an intentional act as an “occurrence” 

{¶ 20} The first issue presented is whether Casey Hilmer’s injury resulted 

from an “occurrence” for purposes of Lance and Diane White’s claim for 

coverage under the Safeco policies. 

{¶ 21} Both policies define an “occurrence” as an “accident” that results 

in injury or property damage. In Hybud Equip. Corp. v. Sphere Drake Ins. Co. 

(1992), 64 Ohio St.3d 657, 666, 597 N.E.2d 1096, we stated that “[i]n its 

common, ordinary use, the word ‘accidental’ means unexpected, as well as 

unintended.” (Emphasis added.) We similarly recognized in Gearing v. 

Nationwide Ins. Co. (1996), 76 Ohio St.3d 34, 38, 665 N.E.2d 1115, that 

“inherent in a policy’s definition of ‘occurrence’ is the concept of an incident of 

an accidental, as opposed to an intentional, nature.” (Emphasis altered.) 

Furthermore, in Rothman v. Metro. Cas. Ins. Co. (1938), 134 Ohio St. 241, 247, 

12 O.O. 50, 16 N.E.2d 417, this court acknowledged that “ ‘accident,’ as the term 

is ordinarily used, is a more comprehensive term than ‘negligence,’ and in its 
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common signification means an unexpected happening without intention or 

design.” Id. at 247, citing Commonwealth Cas. Co. v. Headers (1928), 118 Ohio 

St. 429, 161 N.E. 278. Thus, we held in Rothman that absent contrary language in 

a policy, “if the injury was not intentionally caused, then it was accidentally 

suffered.” Id. at 246, 16 N.E.2d 417. 

{¶ 22} Here, Benjamin intentionally injured 13-year-old Casey Hilmer, 

but the jury found the Whites negligent with respect to Benjamin’s act. In other 

words, from Benjamin’s perspective, the act was intentional, but from the 

perspective of his parents, it was accidental. Thus, for purposes of coverage, the 

question is whether the accidental or intentional nature of the act that caused 

Casey’s injury should be determined from the perspective of Benjamin or from 

the perspective of his parents. 

{¶ 23} We addressed a similar issue in Doe v. Shaffer (2000), 90 Ohio 

St.3d 388, 738 N.E.2d 1243. Doe, who had been sexually molested while living 

in a residence for the mentally retarded, sued the facility’s operator for negligent 

retention and supervision of the employees who committed the molestation. Id. at 

389. The operator of the facility sought coverage pursuant to its insurance policy, 

but the carrier denied the claim and filed a declaratory-judgment action claiming 

that it had no duty to provide coverage. Id. at 390. The trial court entered 

summary judgment in favor of the carrier, and the court of appeals affirmed, 

holding that public policy bars coverage not only for the intentional act of sexual 

molestation but also for negligence with regard to the molestation. We reversed, 

however, and held that “Ohio public policy permits a party to obtain liability 

insurance coverage for negligence related to sexual molestation when that party 

has not committed the act of sexual molestation.” Id. at syllabus. 

{¶ 24} Thus, we held that liability coverage hinges on whether the act is 

intentional from the perspective of the person seeking coverage. As we stated, 

“the intentions of the molester are immaterial to determining whether the 
January Term, 2009 

9 

allegedly negligent party has coverage.” Doe, 90 Ohio St.3d at 393, 738 N.E.2d 

1243, citing Silverball Amusement, Inc. v. Utah Home Fire Ins. Co. 

(W.D.Ark.1994), 842 F.Supp. 1151, 1160, affirmed (C.A.8, 1994), 33 F.3d 1476, 

citing Sena v. Travelers Ins. Co. (D.N.M.1992), 801 F.Supp. 471, 475. 

Furthermore, we explained, “the critical issue is the nature of the intent – inferred 

or otherwise – of the party seeking coverage.” (Emphasis added.) Id. at 394, 738 

N.E.2d 1243, citing Preferred Mut. Ins. Co. v. Thompson (1986), 23 Ohio St.3d 

78, 81, 23 OBR 208, 491 N.E.2d 688, and Transamerica Ins. Group v. Meere

(1984), 143 Ariz. 351, 356, 694 P.2d 181. 

{¶ 25} We concluded that “the intentions or expectations of the negligent 

insured must control the coverage determination, and not the intentions or 

expectations of the molester.” Doe, 90 Ohio St.3d at 393, 738 N.E.2d 1243, 

citing Silverball, 842 F.Supp. at 1160. We reasoned that a contrary decision 

would “effectively dissolve[ ] the distinction between intentional and negligent 

conduct, allowing the intentional act to devour the negligent act for the purpose of 

determining coverage.” Id., quoting Silverball, 842 F.Supp. at 1163. 

{¶ 26} Although the issue in Doe was whether Ohio public policy permits 

insurance coverage for negligence arising out of a third party’s illegal act, our 

rationale applies to this case in that whether the act is intentional must be 

determined from the perspective of the person seeking coverage. In addition, 

many other jurisdictions have held that an “occurrence” exists if the person 

seeking coverage was negligent with regard to the intentional act. See, e.g., 

United Fire & Cas. Co. v. Shelly Funeral Home, Inc. (Iowa 2002), 642 N.W.2d 

648, 654; Capital Alliance Ins. v. Thorough-Clean, Inc. (Ala.1994), 639 So.2d 

1349, 1352; Durham City Bd. of Edn. v. Nat. Union Fire Ins. Co. (1993), 109 

N.C.App. 152, 162, 426 S.E.2d 451; Atlantic Employers Ins. Co. v. Tots & 

Toddlers Pre-School Day Care Ctr., Inc. (App.Div.1990), 239 N.J. Super. 276, 

284-285, 571 A.2d 300; Am. States Ins. Co. v. Borbor (C.A.9, 1987), 826 F.2d 
SUPREME COURT OF OHIO

10 

888, 895; see also 43 American Jurisprudence 2d (1982) 766, Insurance, Section 

708; 2 Allan D. Windt, Insurance Claims and Disputes (5th Ed.2007) 65-68, 

Section 11:3. 

{¶ 27} Accordingly, we hold that when a liability insurance policy defines 

an “occurrence” as an “accident,” a negligent act committed by an insured that is 

predicated on the commission of an intentional tort by another person, e.g., 

negligent hiring or negligent supervision, qualifies as an “occurrence.” In this 

case, neither Lance nor Diane intentionally injured Casey Hilmer. From their 

perspective, the injury was accidental, and thus the act that caused her injury 

constitutes an “occurrence” as defined in the policies they purchased from Safeco. 

Accordingly, we answer the first certified conflict question in the affirmative. 

C. Policy exclusions 

{¶ 28} The second issue presented is whether any of the policy exclusions 

preclude coverage. The parties and the court of appeals appear to agree that, 

unless found to be ambiguous, the intentional-act and illegal-act exclusions in the 

homeowner’s and umbrella policies preclude coverage for all the injuries in this 

case, whether caused by Benjamin’s intentional acts or the Whites’ negligent acts. 

Pacific and Federal argue that the use of the words “an insured” and “any insured” 

in the exclusions creates an ambiguity that must be read against Safeco when the 

provisions are read in conjunction with the severability clauses in the policies. 

See Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 13, citing 

Cent. Realty Co., 62 Ohio St.2d 411, 16 O.O.3d 441, 406 N.E.2d 515 (when a 

written contract is standardized between parties of unequal bargaining power, an 

ambiguity will be construed in favor of the nondrafting party). 

{¶ 29} However, before considering whether the exclusions are 

ambiguous, we must determine whether they are applicable at all to these 

circumstances, and we do not find the answer to this question to be a foregone 

conclusion in view of the different types of torts at issue in this case. In fact, the 
January Term, 2009 

11 

inquiry raises a separate question that ultimately controls: Do policy exclusions 

that preclude coverage for the intentional and/or illegal acts of an insured also 

preclude coverage for related negligent acts of other insureds? After reviewing 

our caselaw and the caselaw from other states, which are split on this topic, we 

conclude that the exclusions do not preclude coverage for such negligent acts. 

{¶ 30} As with the previous issue, Doe is instructive. There, we explored 

the distinction between injuries arising from intentional and/or illegal acts and 

those arising from acts like negligent supervision. As in this case, that case also 

featured allegations of both intentional torts (sexual molestation) and related 

negligent torts (negligent supervision, retention, and failure to warn) and a dispute 

over whether the negligent acts were covered by an insurance policy. Doe, 90 

Ohio St.3d at 389–390, 738 N.E.2d 1243. 

{¶ 31} We held that public policy permits a party to obtain liability 

insurance coverage for negligence related to intentional acts when the negligent 

party did not commit the intentional act. Id. at syllabus. In coming to that 

conclusion, we partially overruled a prior decision, Cuervo v. Cincinnati Ins. Co. 

(1996), 76 Ohio St.3d 41, 665 N.E.2d 1121, that held that insurance coverage for 

a negligent-supervision claim is barred by the public policy against permitting 

liability insurance for intentional torts because the negligence damages “flow 

from” the intentional tort committed, id. at 44. Doe at 393. We rejected the 

Cuervo approach as logically untenable “because the intentions of the [party who 

committed the intentional tort] are immaterial to determining whether the 

allegedly negligent party has coverage.” Doe, 90 Ohio St.3d at 393, 738 N.E.2d 

1243, citing Silverball, 842 F.Supp. at 1160. 

{¶ 32} As with the previous question, the portions of Silverball cited in 

Doe remain instructive: “ ‘The ultimate effect of [those opinions denying 

coverage] leads to a metamorphosis in which certain negligent actions are 

transformed by the court into intentional actions for the purposes of deciding 
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negligent hiring cases involving sexual abuse. Such a decision effectively 

dissolves the distinction between intentional and negligent conduct, allowing the 

intentional act to devour the negligent act for the purpose of determining 

coverage. The correct method of analyzing this issue in cases with the factual 

setting and insurance policy provisions involved * * * would deal with each act 

on its own merits * * *.’ ” (Emphases added.) Id. at 393, quoting Silverball, 842 

F.Supp. at 1163. We elaborated on this reasoning in Doe, noting that an 

“interpretation that refuses to distinguish between the abuser's intentional conduct 

and the insured's alleged negligence would impermissibly ignore the plain 

language of an insurance policy that excludes from coverage bodily injury that 

was expected or intended from the standpoint of the insured.” Id. at 394. 

{¶ 33} These passages show that torts like negligent supervision, hiring, 

retention, and entrustment are separate and distinct from the related intentional 

torts (committed by other actors) that make the negligent torts actionable. Thus, 

in determining whether a policy exclusion precludes coverage for that negligent 

act, we must examine the injuries arising from the negligent act on their own 

accord, not as part of the intentional act. We must also remember that a policy 

exclusion “will be interpreted as applying only to that which is clearly intended to 

be excluded.” (Emphasis sic.) Hybud Equip Corp., 64 Ohio St.3d at 665, 597 

N.E.2d 1096. 

{¶ 34} The two insurance policies at issue in this case each have two 

exclusions that could apply to these circumstances. The homeowner’s policy 

precludes coverage for injuries that are “expected or intended by an insured” or 

that “aris[e] out of any illegal act committed by or at the direction of an insured”; 

the umbrella policy precludes coverage for injuries “caused by a violation of a 

penal law or ordinance committed by or with the knowledge or consent of any 

insured” and for “[a]ny act or damage which is expected or intended by any 

insured.” Although each exclusion is worded slightly differently, the clear import 
January Term, 2009 

13 

is that the policies preclude coverage for injuries arising from or caused by the 

intentional or illegal acts of an insured. 

{¶ 35} These exclusions plainly apply to Benjamin’s acts: he intentionally 

stabbed Casey, and the injuries he inflicted upon her and her family arose from 

the illegal acts he committed. Safeco would end the analysis there, so that 

Benjamin’s involvement precludes coverage for all related claims because 

Benjamin was insured under the same policy as the Whites. 

{¶ 36} This view fails to acknowledge the separate nature of the 

negligent-supervision and negligent-entrustment torts. To succeed on any claim 

of negligence, the plaintiff must show that the defendant breached an applicable 

duty of care and that the breach proximately caused the plaintiff’s injuries. See 

Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 

120, ¶ 10. Thus, to succeed on both claims, the Hilmers were required to show 

that the Whites breached their duties to supervise Benjamin and not to entrust him 

with a dangerous instrument and that these breaches proximately caused the 

Hilmers to suffer injuries. See also Nearor v. Davis (1997), 118 Ohio App.3d 

806, 813, 694 N.E.2d 120 (further defining the elements of negligent supervision 

and negligent entrustment). 

{¶ 37} This last element is crucial. For the Whites to be liable to the 

Hilmers, the Hilmers were required to show that they were injured by the Whites’ 

breaches of duty. While Benjamin’s intentional torts relate to the proximatecausation element (i.e., the Whites’ failure to act with ordinary care enabled 

Benjamin to injure Casey), the injuries arising from the two types of torts are 

distinct. To prevail, the Hilmers had to demonstrate a separate injury from the 

Whites’ negligent failure to monitor Benjamin, one that did not arise from 

intentional or illegal actions as contemplated by the policy exclusions. 

{¶ 38} As the jury interrogatories reveal, separate injuries were alleged 

and proved in this case. The jury determined that the Hilmers were injured by 
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both Benjamin’s intentional battery and intentional infliction of emotional distress 

and the Whites’ negligent supervision and negligent infliction of emotional 

distress. These separate causes of action produced distinct injuries, for which 

Benjamin and the Whites were separately liable; the jury found that Benjamin was 

responsible for 30 percent of the Hilmers’ compensatory damages for his 

intentional actions, whereas the Whites were responsible for 70 percent of the 

Hilmers’ damages for their negligence. Thus, the Whites were held separately 

liable for their own actions, which were neither intentional nor illegal; the injuries 

they caused were distinct from the injuries caused by Benjamin’s intentional and 

illegal acts. Therefore, the intentional-act and illegal-act policy exclusions do not 

apply to the negligence claims against the Whites. 

{¶ 39} We acknowledge that a split has arisen in the federal and state 

courts that have examined this precise issue. Several courts have followed the 

above approach, examining each tort on its own merits and declining to apply 

intentional-act and illegal-act exclusions (or similar exclusions) to preclude 

coverage for negligent acts related to intentional torts. See, e.g., C.P. v. Allstate 

Ins. Co. (Alaska 2000), 996 P.2d 1216, 1225–1226 (“From the perspective of 

insureds whose acts are alleged to have negligently, but not criminally or 

intentionally, been a cause of a claimant’s injury, these exclusions do not apply to 

the negligence claims against them” [at 1226]); Silverball, 842 F.Supp. at 1159–

1165 (“an insurer must provide coverage and a legal defense to an insured where 

a complaint alleges that an employer was negligent in hiring and supervision of an 

employee who subsequently committed an intentional tort. An insurance policy 

would require an exceedingly precise exclusionary clause to avoid that 

fundamental principle, and there is no such clause in the instant case” [at 1159]); 

Talley v. MFA Mut. Ins. Co. (1981), 273 Ark. 269, 274–275, 620 S.W.2d 260; 

U.S. Fidelity & Guar. Co. v. Open Sesame Child Care Ctr. (N.D.Ill.1993), 819 

F.Supp. 756, 760 (“In refusing to separate the employer's alleged negligence from 
January Term, 2009 

15 

the employee's intentional conduct, [other] courts impermissibly ignored the 

employer's independent acts which gave rise to the alleged tort”); Frankenmuth 

Mut. Ins. Co. v. Williams (Ind.1997), 690 N.E.2d 675, 678–680; St. Paul Fire & 

Marine Ins. Co. v. Schrum (C.A.8, 1998), 149 F.3d 878, 880–881 (applying 

Missouri law and noting that the intentional tort was “merely incidental” to the 

negligent-supervision claim, making the negligence a separate and nonexcluded 

cause of the victim’s injuries); Bd. of Public Edn. of the School Dist. of Pittsburgh 

v. Natl. Union Fire Ins. Co. (Pa.Super.1998), 709 A.2d 910, 916-917 (“Where it is 

alleged that negligence allowed a crime to occur, does the claim against the 

negligent arise from the negligence or from the criminality? We believe it is the 

former” [at 917]). 

{¶ 40} Other courts have taken the opposite approach, finding that the 

injuries from negligent conduct related to an intentional tort are inextricably 

related to the injuries arising from the intentional tort, and therefore coverage is 

precluded for both under the intentional-act and illegal-act exclusions. See, e.g., 

Farmer v. Allstate Ins. Co. (C.D.Cal.2004), 311 F.Supp.2d 884, 893–897; W. Am. 

Ins. Co. v. Embry (Apr. 25, 2005), W.D.Ky. No. Civ. A. 3:04CV-47-H, 2005 WL 

1026185 (applying Kentucky law, and finding that the exclusions evidenced “a 

clear and specific intent to exclude all claims arising from sexual molestation, 

even those based on some theory other than the insured’s intentional conduct – a 

theory such as negligence”); Illinois Farmers Ins. Co. v. M.S. (Mar. 31, 2005), 

D.Minn. No. Civ. 04-3102RHKJSM, 2005 WL 741898 (“when an insurance 

policy excludes coverage for an injury ‘arising out of’ or ‘resulting from’ certain 

specified conduct * * * and such conduct occurs, coverage is also excluded for the 

insured's negligent supervision if the injury would not have occurred but for the 

specified conduct” [emphasis sic]); Northwest G.F. Mut. Ins. Co. v. Norgard 

(N.D.1994), 518 N.W.2d 179, 184; J.G. v. Wangard (Wis.2008), 313 Wis.2d 329, 

753 N.W.2d 475, ¶ 59–60. 
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{¶ 41} The decisions of the courts that are in conflict with our decision 

here appear to follow the Cuervo approach—that damages from negligent acts 

“flow from” related intentional acts—but we soundly rejected that reasoning in 

Doe. Doe, 90 Ohio St.3d at 393, 738 N.E.2d 1243. Our decision to join the 

courts that have found the intentional-act and illegal-act exclusions inapplicable to 

acts of negligence related to intentional torts is a continuation of and consistent 

with the “examine each act on its own merits” approach established in Doe and 

our response to the first certified question. As we noted in Doe, this approach 

comports with common sense: “While it is indeed true that the average person 

would likely find liability coverage for [intentional torts] loathsome, the same 

rationale cannot extend to negligence. The average person would no doubt find 

such coverage to be the purpose for which he obtained insurance.” Doe, 90 Ohio 

St.3d at 395, 738 N.E.2d 1243. 

{¶ 42} Accordingly, we hold that insurance-policy exclusions that 

preclude coverage for injuries expected or intended by an insured, or injuries 

arising out of or caused by an insured’s intentional or illegal acts, do not preclude 

coverage for the negligent actions of other insureds under the same policy that are 

predicated on the commission of those intentional or illegal acts, e.g., negligent 

hiring or negligent supervision. 

{¶ 43} Because we find these exclusions to be inapplicable, the second 

certified question, which pertains to whether the exclusions are ambiguous, is 

moot. We therefore decline to address it. 

IV 

{¶ 44} Because the Whites’ actions qualify as “occurrences” under the 

applicable policies and because no exclusions apply, the Whites are entitled to 

coverage under Safeco’s policies. We therefore affirm the decision of the court of 

appeals, albeit for different reasons. 

Judgment affirmed. 
January Term, 2009 

17 

 PFEIFER, O’CONNOR, and LANZINGER, JJ., concur. 

 CUPP, J., concurs separately. 

 LUNDBERG STRATTON and O’DONNELL, JJ., concur in part and dissent in 

part. 

__________________ 

CUPP, J., concurring, 

{¶ 45} I concur in the majority opinion in its resolution of the first 

certified question. However, for clarity, I would rephrase the first syllabus 

paragraph to read: “A liability insurance policy that defines an ‘occurrence’ as an 

‘accident’ that results in injury includes within that definition an injury resulting 

from an intentional act of one insured when another insured seeking coverage is 

alleged to have been only negligent in relation to that intentional act.” I believe 

that this language more closely reflects the issue before this court as presented in 

the first certified-conflict question and in appellant’s second proposition of law. 

{¶ 46} I also concur in the majority opinion’s conclusion that coverage 

exists under the homeowner’s policy at issue herein and agree with its rationale 

for that conclusion. 

{¶ 47} I take a different approach, however, in analyzing the umbrella 

policy, but reach the same conclusion. In contrast to the analysis undertaken with 

respect to the homeowner’s policy, I do not believe that the issue of coverage 

under the umbrella policy can be determined simply by pointing out that the 

conduct of one insured was negligent while the conduct of another insured was 

intentional. I would answer the second certified-conflict question and address 

appellant’s first proposition of law, and I would conclude that the term “any 

insured” when used to define the exclusions in the umbrella policy in conjunction 

with the policy’s requirement that the insurance be applied separately to each 

insured is ambiguous. As I view it, the term “any insured” as used in the 
SUPREME COURT OF OHIO

18 

umbrella-policy exclusion raises an ambiguity that the term “an insured” does not 

raise in the homeowner’s policy. 

{¶ 48} A clearly worded exclusion in an insurance policy may, without 

violating public policy, exclude all coverage under the policy for an injury to a 

third party that is intentionally caused by one insured even if the conduct by 

another insured with regard to the injury is merely negligent. However, I find that 

the exclusionary language used in the umbrella policy is ambiguous in this regard. 

Thus, I arrive at the same ultimate destination as the majority opinion but by a 

different route. 

{¶ 49} It is well established that an ambiguous provision in an insurance 

policy will be construed strictly against the insurer and liberally in favor of the 

insured. King v. Nationwide Ins. Co. (1988), 35 Ohio St.3d 208, 519 N.E.2d 

1380, syllabus. It is equally well established that an ambiguity cannot be created 

in an insurance policy where there is none. Hacker v. Dickman (1996), 75 Ohio 

St.3d 118, 119, 661 N.E.2d 1005. An ambiguous provision is one that has more 

than one reasonable interpretation. Id. at 119-120; Buckeye Union Ins. Co. v. 

Price (1974), 39 Ohio St.2d 95, 98-99, 68 O.O.2d 56, 313 N.E.2d 844. 

{¶ 50} The ambiguity in this matter derives from the use of the term “any 

insured,” which is employed in the umbrella policy in defining the coverage 

exclusions relevant to this appeal. The umbrella policy excludes coverage for 

“[a]ny injury caused by a violation of penal law or ordinance committed by or 

with the knowledge or consent of any insured” and “[a]ny act or damage which is 

expected or intended by any insured, or which is the foreseeable result of an act or 

omission intended by any insured.” (Emphasis added.) The severability clause 

included in the umbrella policy provides: “This insurance applies separately to 

each insured.” 

{¶ 51} The ambiguity in the foregoing exclusions derives from the fact 

that there is more than one reasonable interpretation of the term “any insured.” 
January Term, 2009 

19 

For example, some courts have found that the term “any” can, and often does, 

have the same meaning as the word “an.” See, e.g., Brumley v. Lee (1998), 265 

Kan. 810, 813-815, 963 P.2d 1224. Other courts have acknowledged that 

although “an” may mean “any,” a difference between the terms nevertheless 

exists because “an” is seldom used to denote plurality, but “any” can denote 

plurality. See, e.g., McFarland v. Utica Fire Ins. Co. (S.D.Miss.1992), 814 

F.Supp. 518, 525, 526. Definitions in prior editions of Black’s Law Dictionary 

support both positions: “an” is defined as “equivalent to ‘one’ or ‘any’; seldom 

used to denote plurality”; whereas “any” is defined as indicating “ ‘all’ or ‘every’ 

as well as ‘some’ or ‘one.’ ” Black’s Law Dictionary (5th Ed.1979) 77, 86. 

Against this backdrop, it is not unreasonable to conclude that “any insured” could 

be interpreted to apply either singularly to “ ‘any one of the insureds’ [only] or * * 

* collectively to the whole group of insureds.” See Transport Indemn. Co. v. 

Wyatt (Ala.1982), 417 So.2d 568, 571. 

{¶ 52} Because of these different possible constructions of the term “any 

insured,” the umbrella-policy exclusions are reasonably susceptible of more than 

one interpretation. On one hand, if “any” is interchangeable with “an” and means 

“all,” application of the severability clause results in the policy provisions 

applying equally to all insureds. Accordingly, if one insured engages in an act for 

which coverage is excluded by the policy, coverage is precluded for all insureds. 

For purposes of this case, the implication is that all the insureds would be 

excluded from coverage under the umbrella policy. 

{¶ 53} On the other hand, if “any” is interchangeable with “an” but 

instead means “one,” application of the severability clause results in the policy 

exclusions applying only to the insured who committed the act for which 

coverage is excluded. This same meaning also occurs if the meaning of the word 

“any” is distinct from, and more inclusive than, the word “an.” Again, for 

purposes of this case, the ramification is that the umbrella-policy exclusions apply 
SUPREME COURT OF OHIO

20 

only to the insured who engaged in the intentional act and not to any negligent 

insureds. The negligent insureds remain covered. 

{¶ 54} This uncertainty in the interpretation of “any insured” in the policy 

exclusions could have been avoided through careful drafting. The following 

sentence is an example of a clearly written insurance-policy exclusion: “ ‘If you 

or any person insured under this policy causes or procures a loss to property 

covered under this policy for the purpose of obtaining insurance benefits, then this 

policy is void and we will not pay you or any other insured for this loss.’ ” 

(Emphasis added.) Hall v. State Farm Fire & Cas. Co. (C.A.5, 1991), 937 F.2d 

210, 213 (court held that pursuant to the exclusion, a wife could not recover 

damages for losses she sustained when her husband [another insured] 

intentionally burned down their house), cited in Wagner v. Midwestern Indemn. 

Co. (1998), 83 Ohio St.3d 287, 699 N.E.2d 507. 

{¶ 55} Thus, based on the foregoing, I would hold that the term “any 

insured” used in defining the exclusions in the umbrella policy is ambiguous 

when read in conjunction with the policy’s severability clause. Accordingly, the 

case law regarding the interpretation of ambiguous policy provisions applies, and 

the policy must be construed in favor of the insured. King, 35 Ohio St.3d 208, 

519 N.E.2d 1380, syllabus. 

{¶ 56} On this rationale, I would hold that coverage should be afforded to 

the insureds under the umbrella policy. 

__________________ 

 O’DONNELL, J., concurring in part and dissenting in part.

{¶ 57} I concur with the majority in its resolution of the first certified 

question. 

{¶ 58} However, unlike the majority, I would hold that the intentional-act 

exclusions in both the homeowner’s and the umbrella policies are applicable to all 

the injuries suffered in this case, and thus, I would reach the second certified 
January Term, 2009 

21 

question regarding whether the severability clauses contained in those policies 

render the exclusions ambiguous. 

Exclusion of Coverage 

{¶ 59} The second issue presented is whether a policy’s exclusion of 

coverage for intentional acts of an insured is ambiguous because of a severability 

clause that provides that the policy applies separately to each insured. Before 

considering the severability clauses in the Safeco policies, it is necessary to 

examine the policies’ exclusions. 

{¶ 60} In this case, the homeowner’s policy excludes coverage for an 

injury that “is expected or intended by an insured” or that “aris[es] out of any 

illegal act committed by or at the direction of an insured.” (Emphasis added.) 

The umbrella policy expressly excludes coverage for “[a]ny injury caused by a 

violation of a penal law or ordinance committed by or with the knowledge or 

consent of any insured,” as well as for “[a]ny act or damage which is expected or 

intended by any insured.” (Emphasis added.) 

{¶ 61} Commentators and courts have recognized that whether such 

exclusions of coverage apply depends on whether the exclusion refers to “the 

insured,” “an insured,” or “any insured.” As explained in 2 Windt, Insurance 

Claims and Disputes (5th Ed.2007), 159-160, Section 11:8, “[m]ost exclusions are 

written to apply to actions taken by ‘the’ insured. In that event, the exclusion 

would be inapplicable as to any insured that did not engage in the proscribed 

actions.” See also Tri-S Corp. v. W. World Ins. Co. (2006), 110 Hawai’i 473, 492, 

135 P.3d 82; N. Sec. Ins. Co. v. Perron (2001), 172 Vt. 204, 219-222, 777 A.2d 

151; Morgan v. Cincinnati Ins. Co. (1981), 411 Mich. 267, 307 N.W.2d 53. 

{¶ 62} The phrase “any insured,” however, makes the exclusion 

applicable to all insureds whenever any one of them has committed the prohibited 

act. As the Supreme Court of Colorado stated in Chacon v. Am. Family Mut. Ins. 

Co. (Colo.1990), 788 P.2d 748, “ ‘the phrase “any insured” unambiguously 
SUPREME COURT OF OHIO

22 

expresses a contractual intent to create joint obligations and to prohibit recovery 

by an innocent co-insured.’ ” Id. at 751, quoting Sales v. State Farm Fire & Cas. 

Co. (C.A.11, 1988), 849 F.2d 1383, 1385. See also 2 Windt, Insurance Claims 

and Disputes 155-160, Section 11:8. 

{¶ 63} Courts are divided on the question whether the phrase “an 

insured,” which appears in the homeowner’s policy in this case, means “the” 

insured or “any” insured. Some courts have concluded that the phrase “an 

insured” is ambiguous and should be construed against the insurer because it 

could mean either “the insured” or “any insured.” See, e.g., Michigan Millers 

Mut. Ins. Corp. v. Benfield (C.A.11, 1998), 140 F.3d 915, 926 (Florida law); 

McFarland v. Utica Fire Ins. Co. (S.D.Miss.1992), 814 F.Supp. 518, 525-526 

(Mississippi law). 

{¶ 64} A majority of courts, however, hold that the phrase “an insured” 

should be interpreted as “any insured.” As the Supreme Court of Michigan 

explained in Allstate Ins. Co. v. Freeman (1989), 432 Mich. 656, 443 N.W.2d 

734, “ ‘ “[a]” or “an” is an indefinite article often used in the sense of “any” and 

applied to more than one individual object; whereas “the” is an article which 

particularizes the subject spoken of.’ ” Id. at 698, quoting Allstate Ins. Co. v. 

Foster (D.Nev.1988), 693 F.Supp. 886, 889. Thus, the court in Freeman stated 

that “if we place the word ‘a’ or ‘an’ in front of the word ‘insured,’ then we must 

conclude that ‘an insured’ unambiguously means ‘any insured.’ ” Id. at 699; see 

also Utah Farm Bur. Ins. Co. v. Crook (Utah 1999), 980 P.2d 685, 688; Vance v. 

Pekin Ins. Co. (Iowa 1990), 457 N.W.2d 589, 593; Woodhouse v. Farmers Union 

Mut. Ins. Co. (1990), 241 Mont. 69, 72, 785 P.2d 192; Farmers Ins. Co. v. 

Hembree (1989), 54 Wash.App. 195, 203-204, 773 P.2d 105; Foster, 693 F.Supp. 

at 889; Bryant v. Allstate Ins. Co. (E.D.Ky.1984), 592 F.Supp. 39, 41; Travelers 

Ins. Co. v. Blanchard (La.App.1983), 431 So.2d 913, 914-915. 
January Term, 2009 

23 

{¶ 65} The majority view is consistent with our prior cases interpreting 

indefinite articles such as “an,” and thus I would adopt it. The word “an” is a 

variant of the word “a,” and as the court stated in Judy v. Bur. of Motor Vehicles, 

100 Ohio St.3d 122, 2003-Ohio-5277, 797 N.E.2d 45, “the word ‘a’ is an 

indefinite article used to denote a [noun] that is ‘undetermined, unidentified, or 

unspecified.’ ” Id. at ¶ 19, quoting Webster’s Third New International Dictionary 

(1986) 1; see also id. at 75 (cross-referencing “an” with “a”). Therefore, a 

liability insurance policy that excludes coverage for the intentional acts of “an 

insured” excludes coverage for the intentional acts of any insured. 

{¶ 66} In this case, the homeowner’s policy issued by Safeco excludes 

coverage for injuries caused by the intentional or illegal acts of “an insured,” 

while the umbrella policy excludes coverage for injuries caused by the intentional 

or illegal acts of “any insured.” Both exclusions apply in this case because 

Benjamin is an insured under the policies and because he intentionally caused the 

injuries for which his parents sought coverage. I disagree with the majority’s 

view that the injuries caused by the negligence of Lance and Diane White are 

distinct from the injuries caused by Benjamin’s intentional acts. Accordingly, 

although these policies would otherwise provide coverage to Lance and Diane for 

their negligence, coverage is barred by the intentional-act-by-any-insured 

exclusion. 

Severability 

{¶ 67} The foregoing discussion does not end the analysis of the second 

issue in this case, however, because it is further necessary to consider whether 

these exclusions are ambiguous when viewed in the context of the severability 

clause contained in both policies, which states, “This insurance applies separately 

to each insured.” 

{¶ 68} This issue appears to present a matter of first impression for this 

court. “A severability clause provides that each insured will be treated 
SUPREME COURT OF OHIO

24 

independently under the policy.” 2 Windt, Insurance Claims and Disputes 161-

163, Section 11:8. And as the Supreme Court of Minnesota noted in Am. Natl. 

Fire Ins. Co. v. Estate of Fournelle (Minn.1991), 472 N.W.2d 292, “[t]he intent of 

a severability clause is to provide each insured with separate coverage, as if each 

were separately insured with a distinct policy, subject to the liability limits of the 

policy.” Id. at 294, citing United States Fid. & Guar. Co. v. Globe Indemn. Co. 

(1975), 60 Ill.2d 295, 299, 327 N.E.2d 321. 

{¶ 69} Courts have taken differing views when interpreting an insurance 

policy that contains both a severability clause and an exclusion of coverage for 

the prohibited act of “any insured.” In Fournelle, for example, the Supreme Court 

of Minnesota explained that “severability demands that policy exclusions be 

construed only with reference to the particular insured seeking coverage.” 472 

N.W.2d at 294, citing Utica Mut. Ins. Co. v. Emmco Ins. Co. (1976), 309 Minn. 

21, 243 N.W.2d 134, and 13 Appleman, Insurance Law & Practice (Rev.Ed.1976) 

633, Section 7486; see also Premier Ins. Co. v. Adams (Fla.Dist.Ct.App.1994), 

632 So.2d 1054, 1057. Similarly, the Supreme Judicial Court of Massachusetts 

held in Worcester Mut. Ins. Co. v. Marnell (1986), 398 Mass. 240, 244, 496 

N.E.2d 158, that if a policy contains both a severability clause and an exclusion of 

coverage for a prohibited act of “any insured,” then “the term ‘insured’ as used in 

the * * * exclusion refers only to the person claiming coverage under the policy.” 

The court in Marnell recognized, however, that while this interpretation gives 

effect to the severability clause, it “makes the word ‘any’ in the * * * exclusion 

superfluous.” Id. at 245. 

{¶ 70} Other courts have held that a policy containing both an any-insured 

exclusion and a severability clause is ambiguous and must be construed in favor 

of the insured. See, e.g., State Farm Fire & Cas. Ins. Co. v. Keegan (C.A.5, 

2000), 209 F.3d 767, 771 (Texas law); Brumley v. Lee (1998), 265 Kan. 810, 815, 

963 P.2d 1224; W. Am. Ins. Co. v. AV & S (C.A.10, 1998), 145 F.3d 1224, 1229 
January Term, 2009 

25 

(Utah law); Northwestern Natl. Ins. Co. v. Nemetz (Wis.App.1986), 135 Wis.2d 

245, 256, 400 N.W.2d 33. 

{¶ 71} A majority of courts, however, have held that a severability clause 

does not create any ambiguity and does not alter the plain meaning and 

application of an any-insured exclusion. See, e.g., J.G. v. Wangard, 2008-WI-99, 

313 Wis.2d 329, 753 N.W.2d 475, ¶ 46-49; Argent v. Brady (App.Div.2006), 386 

N.J.Super. 343, 355, 901 A.2d 419; Am. Family Mut. Ins. Co. v. Corrigan (Iowa 

2005), 697 N.W.2d 108, 116-117; BP Am., Inc. v. State Auto Property & Cas. Ins. 

Co., 2005-OK-65, 148 P.3d 832, ¶ 17-29; Am. Family Mut. Ins. Co. v. White

(Ariz.App.2003), 204 Ariz. 500, 507, 65 P.3d 449; Mut. of Enumclaw Ins. Co. v. 

Cross (2000), 103 Wash.App. 52, 62, 10 P.3d 440; Allstate Ins. Co. v. Kim

(D.Hawaii 2000), 121 F.Supp.2d 1301, 1308; Golden Door Jewelry Creations, 

Inc. v. Lloyds Underwriters Non-Marine Assn. (C.A.11, 1997), 117 F.3d 1328, 

1336 (Florida law); Johnson v. Allstate Ins. Co., 1997-ME-3, 687 A.2d 642, ¶ 8-9; 

Am. Family Mut. Ins. Co. v. Copeland-Williams (Mo.App.1997), 941 S.W.2d 625, 

629; Michael Carbone, Inc. v. Gen. Acc. Ins. Co. (E.D.Pa.1996), 937 F. Supp. 

413, 420; California Cas. Ins. Co. v. Northland Ins. Co. (1996), 48 Cal.App.4th 

1682, 1696-1697, 56 Cal.Rptr.2d 434; Oaks v. Dupuy (La.App.1995), 653 So.2d 

165, 168-169; Northwest G.F. Mut. Ins. Co. v. Norgard (N.D.1994), 518 N.W.2d 

179; Gorzen v. Westfield Ins. Co. (1994), 207 Mich.App. 575, 578-579, 526 

N.W.2d 43; Chacon, 788 P.2d at 752; McCauley Ents., Inc. v. New Hampshire 

Ins. Co. (D.Conn.1989), 716 F.Supp. 718, 721; Great Cent. Ins. Co. v. Roemmich

(S.D.1980), 291 N.W.2d 772, 774. 

{¶ 72} The Supreme Court of Colorado’s decision in Chacon is 

representative of the majority view. There, the teenage son of Reyes and Sarah 

Chacon vandalized an elementary school. 788 P.2d at 749. Upon reimbursing the 

school district for the repairs, the district’s insurer sued the Chacons pursuant to a 

state statute that permitted recovery of up to $3,500 from the parents of a child 
SUPREME COURT OF OHIO

26 

who willfully damages a school. Id. The Chacons sought coverage for this 

liability from their homeowner’s insurance carrier, but the carrier denied their 

claim on the basis of a provision that excluded coverage for damage caused by the 

intentional act of “any insured,” which included their son. Id. The Chacons filed 

an action to compel coverage, but both the trial court and the appellate court ruled 

in favor of the carrier. Id. at 749-750. On appeal, the Supreme Court of Colorado 

held that the exclusion “clearly and unambiguously expresses an intention to deny 

coverage to all insureds when damage is intended or expected as a result of the 

actions of any insured.” Id. at 752. Furthermore, the court emphasized, “[t]he 

inclusion of a severability clause within the contract is not inconsistent with the 

creation of a blanket exclusion for intentional acts.” Id. at 752, fn.6. 

{¶ 73} This reasoning is persuasive, and I would adopt it. In this case, the 

Safeco policies exclude coverage for injuries caused by the intentional act of any 

insured. The language of the severability clause does not suggest that “an 

insured” or “any insured” means “the insured” or that the exclusions in the 

policies would not apply in these circumstances. Even if each insured is treated 

as having a separate policy, the exclusionary language remains unambiguous. As 

the Supreme Court of North Dakota stated in Norgard, “ ‘the purpose of 

severability clauses is to spread protection, to the limits of coverage, among all of 

the * * * insureds. The purpose is not to negate bargained-for exclusions which 

are plainly worded.’ ” 518 N.W.2d at 183, quoting Natl. Ins. Underwriters v. 

Lexington Flying Club, Inc. (Ky.App.1979) 603 S.W.2d 490, 492. 

{¶ 74} Furthermore, giving the any-insured exclusion its plain meaning 

does not render the severability clause meaningless, as it would continue to apply 

in other contexts. See 2 Windt, Insurance Claims and Disputes 164, Section 11:8, 

citing St. Katherine Ins. Co. Ltd. v. Ins. Co. of N. Am., Inc. (C.A.7, 1993), 11 F.3d 

707, 710-711 (Illinois law); 5801 Assocs., Ltd. v. Continental Ins. Co. (C.A.5, 

1993), 983 F.2d 662, 664-666; Silverball Amusement, Inc. v. Utah Home Fire Ins. 
January Term, 2009 

27 

Co. (W.D.Ark.1994), 842 F.Supp. 1151, 1154-1155, affirmed (C.A.8, 1994), 33 

F.3d 1476. Thus, only one interpretation of the Safeco policies gives effect to 

both the exclusions and the severability clauses, and as the court stated in Hacker 

v. Dickman (1996), 75 Ohio St.3d 118, 119-120, 661 N.E.2d 1005, “[i]t is only 

when a provision in a policy is susceptible of more than one reasonable 

interpretation that an ambiguity exists * * *.” 

{¶ 75} Accordingly, I would answer the second certified conflict question 

in the negative and hold that a provision in a liability insurance policy that 

excludes coverage for injuries caused by the intentional act of any insured is not 

made ambiguous by a severability clause providing that the insurance applies 

separately to each insured. 

{¶ 76} Because I would conclude that the injuries caused by the negligent 

acts of Lance and Diane are not distinct from the injuries caused by the intentional 

acts of Benjamin, I would hold that the intentional-act exclusions in the policies 

apply to all the injuries in this case. Furthermore, I would hold that the 

severability clauses do not render the exclusionary clauses ambiguous. Thus, I 

would hold that the Safeco policies do not provide liability coverage to Lance and 

Diane White for the injuries in this case and would therefore reverse the judgment 

of the court of appeals. 

 LUNDBERG STRATTON, J., concurs in the foregoing opinion. 

__________________ 

 Jenks, Pyper & Oxley Co., L.P.A., P. Christian Nordstrom, and Scott G. 

Oxley, for appellant. 

 Gallagher Sharp, Jay Clinton Rice, and Richard C.O. Rezie, for appellees. 

 Murray & Murray Co., L.P.A., Dennis E. Murray Sr., and James L. 

Murray, urging affirmance for amici curiae, Vincent Joseph Bilgen and Gloria 

Louis. 

_____________________