The language of an insurance policy prevents a man who lived at a residential care facility for adults, and who was injured by another resident in a knife attack, from collecting a near $1 million court judgment from the facility’s insurer, the Supreme Court of Ohio ruled today.

A Supreme Court majority found that a commercial general liability policy covering the Brown County Care Center precludes coverage of the judgment because a provision that excludes coverage for “bodily injury arising from assault or battery” applies. The decision overturns a First District Court of Appeals decision, which determined the “assault or battery” exclusion did not apply. The appellate court concluded the resident who stabbed Austin Krewina in 2014 did not “assault” Krewina because he lacked the mental capacity to do so.

Writing for the Court majority, Chief Justice Sharon L. Kennedy explained the plain language definition of assault in the insurance policy exclusion applies and Krewina was in fact assaulted by the other resident. The attacker’s subjective intent is irrelevant, she stated.

“What happened to Krewina is unfortunate, but it is the language of the commercial general-liability policy, not our sympathy, that carries the weight in this case,” the opinion stated.

Justices R. Patrick DeWine, Michael P. Donnelly, Melody Stewart, Jennifer Brunner, and Joseph T. Deters joined Chief Justice Kennedy’s opinion. Justice Patrick F. Fischer concurred in judgment only.

Resident Attacked With Knife
The Brown County Care Center in Georgetown is an adult care facility. In 2014, it was insured by United Specialty Insurance Company. Krewina was living at the center when fellow resident Colin Doherty attacked him with a knife, causing severe injuries to Krewina’s neck and back.

Doherty was indicted for felonious assault and other crimes. He pleaded not guilty to felonious assault by reason of insanity, and the trial court found him not guilty by reason of insanity.

Krewina filed a civil lawsuit against Doherty and the care center. The center asked United Specialty to provide a legal defense and to pay any judgment issued against it. United denied the request, explaining that under the policy, bodily injuries arising out of any assault or battery were specifically excluded.

Victim Arranges to Pursue Insurer for Damages
Krewina dismissed his claims against Doherty, and he settled his lawsuit with the care center. In the settlement agreement, the center agreed that at the time Doherty injured Krewina that Doherty “suffered from a derangement of his intellect which deprived him of the capacity to govern his conduct in accordance with reason.” That statement reflects language from Nationwide Ins. Co. v. Estate of Kollstedt, a 1995 Supreme Court of Ohio decision in which an insurer had to pay damages for an injury caused by a mentally ill policyholder.

As part of the settlement, the center agreed that it owed Krewina nearly $1 million in damages, but he agreed not to seek financial compensation from the center. Instead, Krewina filed a lawsuit in Hamilton County Common Pleas Court seeking to collect the judgment from United Specialty.

The trial court found the insurance company had no duty to pay the judgment because of the assault-or-battery exclusion in the policy. The court found the lack of intent that prevented Doherty from being criminally convicted of assault did not change the fact that his conduct was an assault.

Krewina appealed to the First District Court of Appeals, which reversed the trial court. Citing the settlement language that Doherty did not have the capacity to govern his conduct, the appeals court ruled that an “assault” required Doherty to act “intentionally, knowingly, or recklessly.” It ruled that because of his mental state, Doherty did not have the capacity to assault Krewina and the care center’s policy covered the injuries.

United Specialty appealed to the Supreme Court, which agreed to hear the case.

Supreme Court Analyzed Prior Court Decision
The First District stated it relied on the Supreme Court’s Kollstedt decision to determine that the policy covered the attack. Chief Justice Kennedy explained the insurance policy at issue in that case differed from the one issued by United Specialty to the care center.

In the 1995 case, the insured, Paul Kollstedt, shot and killed a man while suffering a “psychotic illness.” Kollstedt was found incompetent to be tried for murder. Kollstedt’s insurance policy excluded coverage for acts that were “expected or intended to cause bodily injury.” In that case the Supreme Court ruled that because of a lack of capacity to govern his conduct, Kollstedt could not have intended the injury, and the exclusion did not apply.

Chief Justice Kennedy noted that the care center’s policy does not contain similar language. Instead, it excludes injuries for “any actual, threatened or alleged assault or battery.” While the policy did not define assault or battery, those terms are defined under Ohio common law and have specific meaning in Ohio civil lawsuits, the chief justice explained.

An “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 contact,” the opinion noted. Based on the facts, Doherty’s attack of Krewina was an assault, and assaults are excluded from coverage under the United Specialty policy, the Court ruled.

“There is no doubt that Doherty picked up a knife and attacked Krewina. The act of attacking someone with a knife not only amounts to a willful attempt to harm or use force, but it would also cause a reasonable person to be in fear or apprehension of such harm or force,” the opinion stated. “To conclude that Doherty’s attack was not an assault under the policy would rewrite the policy to create an exception where one does not exist.”

Doherty’s attack qualified as an assault under civil case law, the Court concluded. The policy excluded coverage, and the Court reinstated the trial court’s judgment in favor of United Specialty.

2022-0322. Krewina v. United Specialty Ins. Co., Slip Opinion No. 2023-Ohio-2343.

View oral argument video of this case.

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