Despite exclusion of assault, razor attack is covered by policy due to mental illness

There was no argument that Colin Doherty, a resident of Brown County Care Center, slashed Austin Krewina’s face with a razor blade.

But a criminal court found Doherty not guilty of bodily harm because he was insane at the time of the attack. That means United Specialty Insurance Co. cannot deny coverage due to an exclusion for damage caused by assault and alleged assault, the Ohio Court of Appeals panel ruled.

The District of Appeal’s first panel overturned a decision by the Hamilton County Court of Common Pleas that dismissed a lawsuit filed by Krewina. He wants to recover a settlement agreement with BCCC which commits to $ 952,924.36, plus interest.

The court concluded that even the exclusion of “alleged assaults” did not apply.

“When an allegation is refuted, as was the case here, an insurer cannot evade coverage simply because someone made an allegation at some point in the process,” the opinion states. “Doherty’s criminal allegations are not perpetual. Rather, the final judgment of an Ohio court quashed the allegations. “

The panel also found that the USIC cannot rely on an endorsement in the commercial liability policy that limits coverage for physical abuse claims to $ 25,000, ruling that physical abuse requires a person to take action. informed.

One of the three judges on the panel wrote a concurring opinion which suggests that the Ohio Supreme Court reconsider the 1995 ruling that required it to overturn the trial court ruling: Nationwide Ins. Co. v. Estate of Kollstedt. In that case, the High Court ruled that a homeowner’s insurer was required to defend an insured who shot dead another resident of a mental health center despite an intentional exclusion.

“It does not make sense to me to make exclusion dependent on the mental state of the perpetrator as opposed to conduct trying to be excluded under policy,” wrote Judge Beth A. Myers. . It concluded, however, that the Kollstedt decision requires a finding that coverage is due.

Doherty and Krewina were both residing at the BCCC, which houses adults coming out of restrictive prisons and health facilities, at the time of the 2014 attack. Krewina suffered multiple lacerations to her face.

Prosecutors charged Doherty with assault, but the Brown County Criminal Court said he was not guilty by reason of insanity. The court concluded that Doherty suffered from paranoia and auditory hallucinations which caused him to attack and ordered him to involuntarily engage.

Krewina sued the Brown County Care Center in 2016. After the USIC refused to cover, BCCC sued its insurer. While these lawsuits were pending, BCCC and Krewina reached a settlement attributing the healthcare facility’s claims to Krewina. He appealed after Hamilton County Court dismissed BCCC’s lawsuit.

In oral argument, attorney Richard Garner argued that Ohio courts had previously ruled that insurers can “get around” the Kollstedt decision. He said the CIAU had used a “categorical exclusion” for alleged assaults as well as actual assaults to limit its risk and keep coverage affordable. The facility only paid $ 1,000 for its USIC policy, he said.

“What if an entity like BCCC is forced to take out insurance for something like this, the cost of its (liability) insurance becomes astronomical,” Garner, partner at Collins Roche Utley & Garner told Dublin, Ohio. “What this does is keep coverage affordable for bars, nursing homes, sports arenas and other places where violence is likely to occur.”

Krewina’s attorney, Brian Butler with Mezibov Butler in Cincinnati, argued that BCCC was seeking vicarious liability coverage for an assault; he had asked the CIAU to cover up for its negligent supervision of its residents. Butler said facility staff knew Doherty suffered from delusions and had been interned at a former mental health facility because he tried to kill his mother.

“The USIC does not dispute that Mr. Doherty was unable to control his own actions,” said Butler.

This lack of control led the Appeal Board to conclude that the Kollstedt decision applied to the case. It does not matter that the USIC excluded the alleged assaults in the edition of the actual assaults, the opinion says.

“Because Doherty” suffered from a derangement of his intellect which deprived him of his ability to govern his conduct according to reason, “Doherty did not act intentionally, knowingly or recklessly,” the court said, citing Kollstedt’s opinion. “Therefore, Krewina’s bodily injuries were not the result of an actual assault or a battery.”

The appeals committee overturned the Hamilton County court decision and remanded the case with directions for judgment against the USIC.

About the photo: Attorney Brian Butler speaks during oral argument before the 1st District of the Ohio Court of Appeals in October.

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