Court of Appeals of Ohio, Eighth District, Cuyahoga
H.P. MANUFACTURING COMPANY, INC. PLAINTIFF-APPELLANT
WESTFIELD INSURANCE COMPANY, ET AL. DEFENDANTS-APPELLEES
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEYS FOR APPELLANT Joseph W. Diemert Brinton J. Resto
Diemert & Associates Co., L.P.A.
ATTORNEYS FOR APPELLEES Cari Fusco Evans Fischer, Evans &
Robbins, Ltd. Richard T. Lobas George S. Coakley Coakley
Lammert Co., L.P.A
BEFORE: Keough, J., Stewart, P.J., and Celebrezze, J.
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, JUDGE.
Plaintiff-appellant, H.P. Manufacturing Company, Inc.
("HP"), appeals from the trial court's decision
granting summary judgment to Westfield Insurance Company
("Westfield") and Insurance Partners Agency, Inc.
("IPA"). For the reasons that follow, we affirm.
This case arises from an underlying lawsuit in which HP was
sued by its employee, Xavier Lunsford, for a workplace
intentional tort. Lunsford v. The H.P. Mfg. Co.,
Cuyahoga C.P. No. CV-14-828457. HP gave notice of the lawsuit
to its insurer, Westfield, which provided a defense subject
to a reservation of rights.
In order for an employee to succeed against his employer on
an intentional tort claim, the employee must demonstrate that
the employer committed the tort "with the intent to
injure another, or with the belief that the injury was
substantially certain to occur." R.C. 2745.01(A). Under
R.C. 2745.01(C) an employee may prove an employer's
intent to injure without direct evidence and by the operation
of a rebuttable presumption that arises when the employer
deliberately removes a safety guard:
(C) Deliberate removal by an employer of an equipment safety
guard * * * creates a rebuttable presumption that the removal
* * * was committed with intent to injure another if an
injury or an occupational disease or condition occurs as a
R.C. 2745.01(C) "is not a separate tort, it merely
provides a legally cognizable example of intent to
injure." Irondale Indus. Contrs. v. Virginia Sur.
Co., 754 F.Supp.2d 927, 933 (N.D.Ohio 2010).
In his case against HP, Lunsford alleged that HP had the
requisite intent to injure him by operation of R.C.
2745.01(C) because HP "knowingly and/or deliberately
removed * * * one or more equipment safety guards, which * *
* caused [his] injuries * * *."
As set forth in the jury's answers to interrogatories,
the jury returned a verdict in favor of Lunsford and against
HP, finding that HP had failed to rebut the presumption that
HP intended to injure Lundsford when it removed an equipment
(A) Did the defendant, H.P. Manufacturing Company, Inc.,
deliberately remove an equipment safety guard from the router
on which the plaintiff, Xavier Lunsford, was working?
(B) Did the removal of the equipment safety guard directly
cause an injury to the plaintiff, Xavier Lunsford?
(C) Did the defendant, H.P. Manufacturing Company, Inc.,
rebut the presumption of intent to injure the ...