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H.P. Manufacturing Co., Inc. v. Westfield Insurance Co.

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 19, 2018

H.P. MANUFACTURING COMPANY, INC. PLAINTIFF-APPELLANT
v.
WESTFIELD INSURANCE COMPANY, ET AL. DEFENDANTS-APPELLEES

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-865197

          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.

         {¶1} 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.

         I. Background

         {¶2} 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.

         {¶3} 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 direct result.

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).

         {¶4} 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 * * *."

         {¶5} 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 safety guard:

(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?
Response: Yes.
(B) Did the removal of the equipment safety guard directly cause an injury to the plaintiff, Xavier Lunsford?
Response: Yes.
(C) Did the defendant, H.P. Manufacturing Company, Inc., rebut the presumption of intent to injure the ...

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