Great American Insurance v. Hartford Insurance ( 1993 )

I dissent from the majority opinion.

First, exclusion three removes from coverage violations of an individual's right of privacy. The majority's reliance onSwanson to conclude otherwise appears to be misplaced. TheSwanson court's conclusion "[i]n order to avoid coverage on the basis of an exclusion for expected or unintentional injuries, the insurer must demonstrate that the injury itself was expected or intended" was decided in a context employing vastly different exclusionary language.

In Swanson, the policies excluded only intentional or expected injuries. Id., 58 Ohio St.3d at 193, 569 N.E.2d 910. The language in our case is broader, and excludes from coverage all violations of privacy whether or not intentional.

Similarly, the majority relies on St. Paul Fire Marine for its view that appellee has to defend on the invasion of privacy claim. The St. Paul court concluded that the policy it was interpreting provided coverage for employment-related claims for invasion of privacy. Again, in our case the exclusionary language removes from coverage not only non-employment-related invasions, but, rather, all invasions.

Clearly, by its very nature, the age discrimination claim was directly or indirectly related to Japel's employment. Therefore, exclusion five is applicable and removes that claim from coverage.

Last, regarding the claims of extortion and intentional infliction of emotional distress, the majority states that the trial court erred in blanketly excluding such claims. The majority then implies that there may be no duty to defend on such claims if the insurance company proved that the injuries were intended; however, the majority does not feel the need to examine or remand on this issue because "at the very least" the privacy claim was covered. As previously stated, I disagree with its conclusion on the invasion of privacy claim, but assuming,arguendo, that the majority is correct, its analysis is still lacking.

In Sanborn Plastics Corp. v. St. Paul Fire Marine Ins. Co. (1993), 84 Ohio App.3d 302, 616 N.E.2d 988, we quotedPreferred Mut. Ins. Co. v. Thompson (1986), 23 Ohio St.3d 78,80, 23 OBR 208, 209-210, 491 N.E.2d 688, 690, which said:

"``When a complaint against an insured states both negligence and intentional tort claims that are based upon the sameoccurrence, the insurance company that is contractually obligated to defend the insured in negligence actions is required to make a defense as to both claims against the insured, regardless of the ultimate outcome of the action or the insurance company's ultimate liability to the insured.' (Emphasis added.) * * *."

We continued, "From this holding, it follows that if the claims arise from separate occurrences, the insurer is only obligated to defend the claim that is covered under the policy."Id., 84 Ohio App.3d at 313, 616 N.E.2d at 996.

The majority does not analyze whether the claims of extortion and intentional infliction of emotional distress arose from the same occurrence as the invasion of privacy claim. Accordingly, it does not demonstrate whether its conclusion on the privacy claim is sufficient to require a duty to defend on the other claims advanced.