Duty To Defend Does Exist In The Context Of A Sexual Harassment Lawsuit
Ohio Govt. Risk Mgt. Plan v. Harrison (2007), 115 Ohio St.3d 241
A former chief of police was sued by a subordinate for sexual harassment and the liability insurance carrier for the city instituted a declaratory judgment action seeking a determination that it had no duty to provide coverage to the former chief of police. The trial court granted summary judgment in favor of the liability insurance carrier, but the court of appeals reversed. The Supreme Court accepted the case on a discretionary appeal and reviewed the granting of summary judgment de novo.
The basic legal dispute was that the liability insurance carrier argued that sexual harassment could not be a covered act under the policy of insurance. The Ohio Supreme Court rejected such a sweeping assertion and instead placed emphasis upon the issue of whether or not the sexual harassment occurred in the course of employment.
In analyzing federal treatment on the identical issue, the court stated the following in paragraph 8 of its opinion:
“Specifically, we noted that federal courts have held that ‘where an employee is able to sexually harass another employee because of the authority or apparent authority invested in him by the employer, it may be said that the harasser’s actions took place within the scope of his employment (citation omitted). We further noted that in Shrout v. Black Clawson Co. (S.D. Ohio 1988), 689 F.Supp. 774, the court had held that when the supervisor’s harassment of an employee takes ‘place during work hours, at the office, and was carried out by someone with the authority to hire, fire, promote and discipline the plaintiff,’ it will normally fall within the supervisor’s scope of employment.”
The court made it very clear that it was unwilling to conclude that all sexual harassment acts cannot be covered by a liability insurance policy. On paragraphs 17 – 18 of its opinion, the court stated the following:
“Generally, the determination of whether specific acts fall within an employee’s scope of employment will vary from case to case. Yet the Plan would have us hold – as a matter of law – that acts of sexual harassment are always outside the scope of employment. ... Indeed, it will often be difficult to distinguish between purely personal gender-based discrimination, which falls outside the scope of employment from discrimination directed at an employee and intended by the harasser, at least in part, to serve the employer ...
Based upon the foregoing, we decline to hold that sexual harassment is conduct that is outside the scope of employment as a matter of law.”
It is important to note that the policy at issue in this litigation included a provision that it would defend any suit even those including groundless, false or fraudulent basis. It is always important in a duty to defend analysis to make a determination as to whether or not such a clause exists in a policy and the court indicated that such language expands the scope of the duty to defend and so stated in paragraph 23 of its opinion the following:
“The duty to defend is broader when the insurer expressly states that it will defend claims that are groundless, false or fraudulent.”
The court applied the language in the policy to the operative facts, one of which included the allegation of the installation of a hidden electronic device owned by the department to audio record female employees while they were in the police department restroom. In paragraph 24 of its opinion, the court found a duty to defend and stated the following:
“Furthermore, the definition of ‘wrongful act’ is expanded by the contract in this case to include ‘any matter claimed against (an insured) solely by reason of their having served or acted in an official capacity.’ (emphasis added). Thus, in addition to the Plan’s agreement to defend against suits for civil-rights violations and discrimination, the Plan also agreed to defend against ‘any matter claimed,’ as long as the plaintiff claims that the insured ‘served or acted in an official capacity.’ The allegations in the underlying federal complaint related directly to Harrison’s capacity as Wapakoneta’s chief of police, and Kohler alleged that Harrison committed wrongful acts while he was acting in his official capacity and under color of state law.”
The court concluded that the liability insurance carrier did have a duty to defend.
Jury Verdict Cannot Be Disturbed Absent Unanimous Vote
Of The Court Of Appeals
Bryan-Wollman v. Domonko, (2007) 115 Ohio St. 3d 291
A trial had resulted in a jury entering a defense verdict in a situation wherein the defendant had admitted her negligence. Counsel for the plaintiff had filed a motion for a new trial and/or motion for judgment notwithstanding the verdict and the lower court denied that request. In the ensuing appeal, the Eighth District Court of Appeals reversed the lower court’s decision stating that it was error not to grant the plaintiff’s motion for judgment notwithstanding the verdict or new trial.
The Ohio Supreme Court accepted the case on a discretionary appeal. It is critical to note that only two of the three judges had agreed to reverse the lower court.
The Ohio Supreme Court reversed the Eighth District Court of Appeals and stated, in its opinion, the following at paragraph 2:
“Section 3(B)(3), Article IV of the Ohio Constitution states, ‘No judgment resulting from a trial by jury shall be reversed on the weight of the evidence except by the concurrence of all three judges hearing the cause.’ Though this constitutional language is admirably straight forward, in State v. Thompkins (1997), 78 Ohio St.3d. 380, 678 N.E.2d 541, paragraph four of the syllabus, we removed all opportunity to misconstrue Section 3(B)(3), Article IV by stating, ‘To reverse a judgment of a trial court on the weight of the evidence, when the judgment results from a trial by jury, a unanimous concurrence of all three judges on the court of appeals panel reviewing the case is required.’ The vote of the court of appeals panel in the case before us was two to one; therefore, if the decision to reverse the judgment of the jury was based on the weight of the evidence, the court of appeals decision must be reversed.”
The Ohio Supreme Court concluded that, in fact, the lower court had reversed the trial court’s decision based upon a weight of the evidence analysis and articulated the underpinnings of its judgment in paragraph 4 of its opinion wherein it stated the following:
“It is clear to us that the court of appeals was applying a manifest-weight-of-the-evidence standard. First, the court of appeals referred to that standard. Second, the court of appeals stated part of the standard as enunciated in Wilson. Third, in its opinion the court of appeals acknowledged that there was evidence presented on both sides of the damages issue. And finally, the court of appeals did not state that it was applying the sufficiency-of-the-evidence standard. We conclude that the court of appeals reversed a jury verdict based on the manifest weight of the evidence and that it did so other than unanimously.”
Based upon the foregoing, the court of appeals’ decision was reversed and the jury verdict upheld.
Toxic Substance; Expert Testimony Necessary To Establish Proximate Cause
Terry v. Caputo (2007) 115 Ohio St.3d 351
The Ohio Supreme Court handled a case of first impression wherein several employees of Ottawa Board of MRDD developed symptoms allegedly from exposure to mold. In a lawsuit filed against the county, the claimants presented the testimony of Dr. Jonathan Bernstein who, although he never examined them individually, did examine their medical records and opine that there was a “connection” between the conditions of the claimants and the presence of the mold. In paragraph 12 – 15, the court stated the following:
“This court has not previously addressed this specific issue. We recognize, however, that the federal courts have frequently considered it (citations omitted).
These courts have established ‘a two-step process in examining the admissibility of causation evidence in toxic tort cases.’ (citation omitted.) The first step requires a claimant to offer evidence establishing general causation – that is, ‘whether a substance is capable of causing a particular injury or condition in the general population.’ (citation omitted).
The second step, which applies only after a court finds competent evidence establishing general causation, requires a claimant to offer specific causation evidence. This evidence relates to ‘whether a substance caused a particular individual’s injury.’ (citation omitted.)
We find this two-step analysis to be reasonable and therefore adopt it in Ohio. To present a prima facie case involving an injury caused by exposure to mold or other toxic substance, a claimant must establish (1) that the toxin is capable of causing the medical condition or ailment (general causation), and (2) that the toxic substance in fact caused the claimant’s medical condition (specific causation).”
The Ohio Supreme Court reinstated the judgment of the trial court granting summary judgment in favor of the defendant.
Although the case does involve the arena of toxic tort, it is instructive and useful to the defense community inasmuch as it reaffirms the Ohio Supreme Court’s adherence to the need for medical testimony to establish injury. Outside the toxic tort arena, plaintiffs attempt to introduce a host of injuries sometimes predicated upon the testimony of only the plaintiff as to causation. Alternatively, a non-treating doctor may review medical records and opine that a specific injury was caused by some type of trauma. Inferentially, this decision can be read for the proposition that such an approach will not sustain judicial scrutiny and hence, is included in the Newsletter for utilization in maintaining strict conformity with the requirements of establishment of proximate cause.
Curtin & Associates will continue to electronically transmit cases of interest to the insurance industry. Please visit our website at www.curtinlawfirm.com. For your convenience, we will post these cases on our website in the “Newsletter” link.
The information contained in this Newsletter is not a legal opinion and is for informational purposes only. Specific questions should be directed to an attorney for a legal opinion.
Duty To Defend Does Exist In The Context Of A Sexual Harassment Lawsuit
Ohio Govt. Risk Mgt. Plan v. Harrison (2007), 115 Ohio St.3d 241
A former chief of police was sued by a subordinate for sexual harassment and the liability insurance carrier for the city instituted a declaratory judgment action seeking a determination that it had no duty to provide coverage to the former chief of police. The trial court granted summary judgment in favor of the liability insurance carrier, but the court of appeals reversed. The Supreme Court accepted the case on a discretionary appeal and reviewed the granting of summary judgment de novo.
The basic legal dispute was that the liability insurance carrier argued that sexual harassment could not be a covered act under the policy of insurance. The Ohio Supreme Court rejected such a sweeping assertion and instead placed emphasis upon the issue of whether or not the sexual harassment occurred in the course of employment.
In analyzing federal treatment on the identical issue, the court stated the following in paragraph 8 of its opinion:
“Specifically, we noted that federal courts have held that ‘where an employee is able to sexually harass another employee because of the authority or apparent authority invested in him by the employer, it may be said that the harasser’s actions took place within the scope of his employment (citation omitted). We further noted that in Shrout v. Black Clawson Co. (S.D. Ohio 1988), 689 F.Supp. 774, the court had held that when the supervisor’s harassment of an employee takes ‘place during work hours, at the office, and was carried out by someone with the authority to hire, fire, promote and discipline the plaintiff,’ it will normally fall within the supervisor’s scope of employment.”
The court made it very clear that it was unwilling to conclude that all sexual harassment acts cannot be covered by a liability insurance policy. On paragraphs 17 – 18 of its opinion, the court stated the following:
“Generally, the determination of whether specific acts fall within an employee’s scope of employment will vary from case to case. Yet the Plan would have us hold – as a matter of law – that acts of sexual harassment are always outside the scope of employment. ... Indeed, it will often be difficult to distinguish between purely personal gender-based discrimination, which falls outside the scope of employment from discrimination directed at an employee and intended by the harasser, at least in part, to serve the employer ...
Based upon the foregoing, we decline to hold that sexual harassment is conduct that is outside the scope of employment as a matter of law.”
It is important to note that the policy at issue in this litigation included a provision that it would defend any suit even those including groundless, false or fraudulent basis. It is always important in a duty to defend analysis to make a determination as to whether or not such a clause exists in a policy and the court indicated that such language expands the scope of the duty to defend and so stated in paragraph 23 of its opinion the following:
“The duty to defend is broader when the insurer expressly states that it will defend claims that are groundless, false or fraudulent.”
The court applied the language in the policy to the operative facts, one of which included the allegation of the installation of a hidden electronic device owned by the department to audio record female employees while they were in the police department restroom. In paragraph 24 of its opinion, the court found a duty to defend and stated the following:
“Furthermore, the definition of ‘wrongful act’ is expanded by the contract in this case to include ‘any matter claimed against (an insured) solely by reason of their having served or acted in an official capacity.’ (emphasis added). Thus, in addition to the Plan’s agreement to defend against suits for civil-rights violations and discrimination, the Plan also agreed to defend against ‘any matter claimed,’ as long as the plaintiff claims that the insured ‘served or acted in an official capacity.’ The allegations in the underlying federal complaint related directly to Harrison’s capacity as Wapakoneta’s chief of police, and Kohler alleged that Harrison committed wrongful acts while he was acting in his official capacity and under color of state law.”
The court concluded that the liability insurance carrier did have a duty to defend.
Jury Verdict Cannot Be Disturbed Absent Unanimous Vote
Of The Court Of Appeals
Bryan-Wollman v. Domonko, (2007) 115 Ohio St. 3d 291
A trial had resulted in a jury entering a defense verdict in a situation wherein the defendant had admitted her negligence. Counsel for the plaintiff had filed a motion for a new trial and/or motion for judgment notwithstanding the verdict and the lower court denied that request. In the ensuing appeal, the Eighth District Court of Appeals reversed the lower court’s decision stating that it was error not to grant the plaintiff’s motion for judgment notwithstanding the verdict or new trial.
The Ohio Supreme Court accepted the case on a discretionary appeal. It is critical to note that only two of the three judges had agreed to reverse the lower court.
The Ohio Supreme Court reversed the Eighth District Court of Appeals and stated, in its opinion, the following at paragraph 2:
“Section 3(B)(3), Article IV of the Ohio Constitution states, ‘No judgment resulting from a trial by jury shall be reversed on the weight of the evidence except by the concurrence of all three judges hearing the cause.’ Though this constitutional language is admirably straight forward, in State v. Thompkins (1997), 78 Ohio St.3d. 380, 678 N.E.2d 541, paragraph four of the syllabus, we removed all opportunity to misconstrue Section 3(B)(3), Article IV by stating, ‘To reverse a judgment of a trial court on the weight of the evidence, when the judgment results from a trial by jury, a unanimous concurrence of all three judges on the court of appeals panel reviewing the case is required.’ The vote of the court of appeals panel in the case before us was two to one; therefore, if the decision to reverse the judgment of the jury was based on the weight of the evidence, the court of appeals decision must be reversed.”
The Ohio Supreme Court concluded that, in fact, the lower court had reversed the trial court’s decision based upon a weight of the evidence analysis and articulated the underpinnings of its judgment in paragraph 4 of its opinion wherein it stated the following:
“It is clear to us that the court of appeals was applying a manifest-weight-of-the-evidence standard. First, the court of appeals referred to that standard. Second, the court of appeals stated part of the standard as enunciated in Wilson. Third, in its opinion the court of appeals acknowledged that there was evidence presented on both sides of the damages issue. And finally, the court of appeals did not state that it was applying the sufficiency-of-the-evidence standard. We conclude that the court of appeals reversed a jury verdict based on the manifest weight of the evidence and that it did so other than unanimously.”
Based upon the foregoing, the court of appeals’ decision was reversed and the jury verdict upheld.
Toxic Substance; Expert Testimony Necessary To Establish Proximate Cause
Terry v. Caputo (2007) 115 Ohio St.3d 351
The Ohio Supreme Court handled a case of first impression wherein several employees of Ottawa Board of MRDD developed symptoms allegedly from exposure to mold. In a lawsuit filed against the county, the claimants presented the testimony of Dr. Jonathan Bernstein who, although he never examined them individually, did examine their medical records and opine that there was a “connection” between the conditions of the claimants and the presence of the mold. In paragraph 12 – 15, the court stated the following:
“This court has not previously addressed this specific issue. We recognize, however, that the federal courts have frequently considered it (citations omitted).
These courts have established ‘a two-step process in examining the admissibility of causation evidence in toxic tort cases.’ (citation omitted.) The first step requires a claimant to offer evidence establishing general causation – that is, ‘whether a substance is capable of causing a particular injury or condition in the general population.’ (citation omitted).
The second step, which applies only after a court finds competent evidence establishing general causation, requires a claimant to offer specific causation evidence. This evidence relates to ‘whether a substance caused a particular individual’s injury.’ (citation omitted.)
We find this two-step analysis to be reasonable and therefore adopt it in Ohio. To present a prima facie case involving an injury caused by exposure to mold or other toxic substance, a claimant must establish (1) that the toxin is capable of causing the medical condition or ailment (general causation), and (2) that the toxic substance in fact caused the claimant’s medical condition (specific causation).”
The Ohio Supreme Court reinstated the judgment of the trial court granting summary judgment in favor of the defendant.
Although the case does involve the arena of toxic tort, it is instructive and useful to the defense community inasmuch as it reaffirms the Ohio Supreme Court’s adherence to the need for medical testimony to establish injury. Outside the toxic tort arena, plaintiffs attempt to introduce a host of injuries sometimes predicated upon the testimony of only the plaintiff as to causation. Alternatively, a non-treating doctor may review medical records and opine that a specific injury was caused by some type of trauma. Inferentially, this decision can be read for the proposition that such an approach will not sustain judicial scrutiny and hence, is included in the Newsletter for utilization in maintaining strict conformity with the requirements of establishment of proximate cause.
Curtin & Associates will continue to electronically transmit cases of interest to the insurance industry. Please visit our website at www.curtinlawfirm.com. For your convenience, we will post these cases on our website in the “Newsletter” link.
The information contained in this Newsletter is not a legal opinion and is for informational purposes only. Specific questions should be directed to an attorney for a legal opinion.