Cleveland, Ohio (July 18, 2023) – Did an assault and battery exclusion apply when the perpetrator was legally insane? "Yes," according to the Ohio Supreme Court in its recent decision, Krewina v. United Specialty Insurance Co., 2023-Ohio-2343 (July 12, 2023). The decision turned on two key points: first, the plain and ordinary meaning of "assault" and "battery," which did not necessarily require a specific "intent;" and second, the fact that the assault and battery exclusion did not introduce the concept of "intent" or require any specific "intent." Thus, the court in Krewina ruled that a perpetrator's insanity did not bar the application of an assault and battery exclusion in a commercial general liability policy (CGL).
Underlying Facts
In this matter, Austin Krewina and Colin Doherty were temporary residents at Brown County Care Center (BCCC), a halfway house. Mr. Doherty violently attacked Mr. Krewina with a razor blade resulting in serious, non-fatal injuries. Mr. Doherty was charged with attempted murder and felonious assault but was found not guilty by reason of insanity, as he suffered from hallucinations, including hearing voices in his head that commanded him to violence. He was involuntarily committed to a mental facility.
Trial and Appellate Court Decisions
Mr. Krewina sued BCCC and Mr. Doherty for damages associated with the injuries he suffered during the knife attack. BCCC sought defense and indemnification under its CGL with United Specialty Insurance Company (USIC). USIC denied coverage, citing the CGL's assault and battery exclusion, which provided:
This insurance does not apply to 'bodily injury,'...arising out of or resulting from:
(a) any actual, threatened or alleged assault or battery;
(b) the failure of any insured or anyone else for whom any insured is or could be held legally liable to prevent or suppress any assault or battery. . . .
BCCC also sued USIC for breach of contract, a claim that BCCC later assigned to Mr. Krewina.
The trial court ruled that the CGL's assault and battery exclusion barred coverage. In so ruling, the trial court rejected Mr. Krewina's argument that Mr. Doherty could not commit assault or battery because he was legally insane. Mr. Krewina appealed.
The Ohio First District Court of Appeals reversed, concluding that Mr. Doherty's mental condition prevented him from forming the necessary intent to commit an "assault" or "battery," as those terms were defined in Ohio's civil and criminal case law.
Ohio Supreme Court Decision
The Ohio Supreme Court reversed the appellate court's ruling. In a unanimous 7-0 decision, the state's high court held that "Doherty's attack on Krewina qualified as a civil-law assault, plain and simple." Because the CGL did not define "assault" or "battery," the court applied the "plain and ordinary civil-law definitions." Specifically, "assault" is "the willful threat or attempt to harm or touch another offensively, which threat or attempt reasonably places the other in fear of such conduct." As the court explained, "[t]here is no doubt that Doherty picked up a knife and attacked Krewina."
In reaching its conclusion, the court reasoned, "Courts must refrain from inserting exceptions into contract where they do not exist. . . . To conclude that Doherty's attack was not an assault under the policy would rewrite the policy and create an exception where one does not exist."
The court distinguished the assault and battery exclusion in Krewina from insurance exclusions that apply when "the insured expected or intended to cause bodily injury." Citing Nationwide Ins. Co. v. Estate of Kollstedt, 71 Ohio St.3d 624, 647 (1995), the court explained that when the exclusion expressly requires "intent" on the part of the perpetrator, then the mental incapacity of the perpetrator is relevant—and the exclusion will not apply if the perpetrator "was mentally incapable of committing an intentional act." The court further described that, in contrast, when an exclusion simply mentions "assault" or "battery" without an reference to "intent," the exclusion will apply regardless of the lack of mental capacity on the part of the person committing the assault or battery.
Implications of the Krewina Decision
Common Meaning Applies. When defining terms undefined by an insurance policy, the deciding factor is often how the parties likely understood the terms when the policy was issued. Krewina followed this approach and applied the common understanding of "assault" and "battery," which did not require any certain intent or mental capacity.
Consider Supplemental Language. Those involved in drafting insurance policies should consider adding language to assault and battery exclusions indicating that the exclusion applies regardless of the mental capacity or intent of the person committing the assault or battery.
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