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Williams & Petro successfully defends abuse/molestation/corporal punishment exclusion as absolute, Crow v. Dooley (Jun. 11, 2012),

November 5th, 2012

On June 11, 2012, the Third District Court of Appeals held that the “unambiguous language” of a homeowners liability exclusion for “’bodily injury’ or ‘property damage’ arising out of sexual molestation, corporal punishment or physical or mental abuse” “excludes coverage for all bodily injury arising out of acts of sexual molestation, irrespective of the mental state of the defendant.”  Crow v. Dooley (Jun. 11, 2012), Allen App. No. 1-11-59, 2012 Ohio 2565, P12 (quoting policy) and P15.  (Emphasis added).  In reaching this conclusion, the Crow court expressly distinguished Safeco Ins. Co. of Am. v. White, 122 Ohio St.3d 562, 2009 Ohio 3718, 913 N.E.2d 426 (2009), in which the Ohio Supreme Court held that “exclusionary provisions which preclude coverage for injuries that were either expected or intended by the insured or that arose out of an insured’s intentional or illegal act do not preclude coverage for the associated negligence claims,” instructing that reviewing courts “examine the injuries arising from the negligent act on their own accord, not as part of the intentional act.”  Crow, supra at P18, quoting White, supraat syllabus and P33.

 

On October 24, 2012, the Ohio Supreme Court declined to exercise jurisdiction over a discretionary appeal in Crow v. Dooley (Oct. 24, 2012), Ohio S. Ct. No. 2012-1258.  In their jurisdictional memorandum, the appellants had argued that the Third District Court of Appeals decided Crow incorrectly because it did not apply the ‘abuse/molestation/corporal punishment’ exclusion separately as to each insured.  The high court’s decision not to review Crow may be interpreted to endorse the view that the exclusion for “’bodily injury’ or ‘property damage’ arising out of sexual molestation, corporal punishment or physical or mental abuse” is absolute.  That is, unlike the “criminal acts” and “expected or intended injury” exclusions, the ‘abuse/molestation/corporal punishment’ exclusion bars coverage for all claims, irrespective of who perpetrates the act of abuse/molestation/corporal punishment and irrespective of the given insured’s state of mind.