Court of Appeals of Ohio, Fifth District, Licking
KATHERINE NAPIER, ET AL. Plaintiff-Appellant
TERRY D. ICKES, ET AL. Defendants-Appellees
from the Licking County Court of Common Pleas, Case No. 2013
Plaintiff-Appellant: SCOTT ELLIOT SMITH BRIAN R. NOETHLICH
Defendants-Appellees: WILLIAM SCOTT LAVELLE JOHN A. FIOCCA,
JR. BARRY W. LITTRELL JOHN F. MCLAUGHLIN TODD M. ZIMMERMAN
JUDGES: Hon. William B. Hoffman, P.J. Hon. Patricia A.
Delaney, J. Hon. Earle E. Wise, Jr., J.
Plaintiff-Appellant Frederick Alex Napier appeals various
judgment entries issued by the Licking County Court of Common
Pleas in Case No. 2013 CV 00217. Defendants-Appellees are
Terry Ickes, State Farm Fire and Casualty Company, and Hunter
AND PROCEDURAL HISTORY The Incident
On March 3, 2012, a group of teenagers were gathered at the
home of Defendant-Appellee/Third-Party Plaintiff Terry Ickes.
The group included Plaintiff-Appellant Frederick Napier and
Defendant-Appellee Hunter Gray. Ickes owned shotguns and
shotgun shells. One of the boys, Third-Party Defendant Brady
Watters, removed the metal shot from one of the 12-gauge
shotgun shells so that the shell would fire with only the
plastic wad for a projectile. With the metal shot removed,
all that remained in the shotgun shell casing was the wad,
primer, and gunpowder. The group of boys occasionally removed
the metal shot from shotgun shells for the purpose of
shooting the wads at each other.
Watters gave the altered shotgun shell to Gray and Gray
loaded the shotgun shell into one of Ickes's 12-gauge
shotguns. To avoid being shot, Napier ran from Ickes's
house and locked himself in Ickes's truck. The group of
boys followed Napier outside. Austin Phillips unlocked the
passenger door to the truck. Gray, standing ten to fifteen
yards away, shot Napier in the leg with the altered shotgun
shell. The plastic wad from the altered shotgun shell
embedded in Napier's leg and caused a bleeding wound.
Napier was taken to the emergency room. His injury required
admission to the hospital and two surgeries.
On February 28, 2003, Katherine Napier, individually and as
guardian of Frederick Alex Napier, and Steve Napier filed a
complaint against Terry Ickes, Jerry Ickes (Terry's
father), and Gray in the Licking County Court of Common
On July 23, 2013, Napier filed his First Amended Complaint.
The First Amended Complaint added additional defendants Rose
Ickes (Terry's mother); Elizabeth and Barry Phillips,
individually and as mother and father and legal guardians of
Austin Phillips, a minor; and Suzanne Peters, mother and
legal guardian of Brady Watters.
Napier dismissed Suzanne Peters on November 21, 2013.
On April 4, 2014, Napier dismissed Rose Ickes pursuant to
On April 25, 2014, Napier filed his Second Amended Complaint
naming Frederick Alex Napier as the sole plaintiff and
removed Suzanne Peters as a defendant.
Ickes filed a motion for leave to file a third-party
complaint on April 30, 2014, which the trial court granted.
Ickes named Watters as a third-party defendant.
On May 28, 2014, Napier filed a notice of dismissal without
prejudice dismissing Jerry Ickes.
Farm and Hunter Gray - The Homeowners Insurance
On April 4, 2014, State Farm Fire and Casualty Company filed
a Motion to Intervene. State Farm provided homeowners
insurance to the parents of Hunter Gray. The trial court
granted State Farm's motion to intervene on April 7,
On May 22, 2014, State Farm, as Intervening Plaintiff, filed
an intervening complaint seeking declaratory judgment that,
under the terms of the homeowners insurance policy issued to
the parents of Gray, it owed no duty to defend or indemnify
Gray. Gray answered the intervening complaint on June 3,
State Farm filed its Motion for Summary Judgment on July 20,
2014, arguing there was no genuine issue of material fact
that under the terms of the homeowners insurance policy
issued to the parents of Hunter Gray, State Farm had no duty
to defend or indemnify Gray for the incident. State Farm
contended the policy excluded coverage for "bodily
injury or property damage: (1) which is either expected or
intended by the insured; or (2) which is the result of
willful and malicious acts of the insured." Based on the
deposition testimony of Gray, State Farm argued Gray intended
to injure Napier and his act was therefore excluded under the
expected or intended injury exception found within the
policy. Napier filed his own motion for summary judgment on
July 30, 2014.
By judgment entry issued on October 1, 2014, the trial court
granted State Farm's motion for summary judgment. The
trial court reviewed the relevant case law analyzing the
expected or intended injury exception. It found the Civ.R. 56
evidence demonstrated Gray did not intend Napier to suffer
the exact injury that occurred, but Gray intended to harm
Napier. Gray knew if he shot Napier with the plastic wad, he
would get a rise out of Napier and cause a sting or welt. The
trial court found the expected or intended injury exclusion
applied if the insured intended to do some harm, even if the
harm is different than intended. The trial court found the
harm to Napier was not accidental and was therefore not an
"occurrence" as defined by the policy. The
exclusion for bodily injury that is expected or intended
precluded coverage for Gray under the State Farm policy.
and Gray - The Consent Judgment
On April 3, 2018, Napier and Gray entered into a Consent
Judgment. The agreement constituted the full resolution of
Napier's claims against Gray as a result of the injuries
Napier suffered on March 3, 2012. Gray agreed to pay Napier
$750, 000.00 plus interest.
Napier dismissed his claims against Gray with prejudice.
and Austin Phillips - The Motion to Amend Complaint
On March 6, 2017, Napier filed a Motion for Leave to File a
Third Amended Complaint. He requested the trial court leave
to amend his complaint to remove Elizabeth and Barry Phillips
as defendants because Austin Phillips had reached the age of
majority. He argued pursuant to Civ.R. 15(A) and (C) he
should be permitted to amend his complaint to substitute
The trial court denied Napier's motion for leave to file
a third amended complaint on April 10, 2017. The trial court
found that Napier's reliance on Civ.R. 15(C) for support
of his motion was misplaced. Civ.R. 15(C) states the
plaintiff knew or should have known, but for a mistake
concerning the identity of the proper party, the action would
have been brought against him. In this case, Napier knew the
identity of Austin Phillips and failed to name or serve him
as a defendant in the action.
Elizabeth and Barry Phillips filed a Motion for Clarification
on May 22, 2017, requesting the trial court clarify whether
Austin Phillips was a defendant in the action. On July 5,
2017, the trial court ruled that Austin Phillips was not a
On September 11, 2017, Napier dismissed Elizabeth and Barry
Phillips from the action, without prejudice.
and Ickes - The Jury Trial
Napier went forward with a jury trial against Ickes from
April 3, 2018 to April 6, 2018. The jury awarded a judgment
in favor of Napier and against Ickes in the amount of $1,
250, 000 in noneconomic damages, $1000 in punitive damages,
and reasonable attorney fees. The jury apportioned the
liability: 55% as to Ickes; 35% as to Gray; and 10% as to
Phillips. The trial court memorialized the verdict via
judgment entry on April 10, 2018.
Ickes filed a Motion for New Trial, Motion for Remittitur,
Judgment Notwithstanding the Verdict, and application of R.C.
2315.18(B). An oral hearing was held on the motions. The
trial court granted Ickes's motion to reduce the verdict
pursuant to R.C. 2315.18. It found there was no finding by
the jury that Napier suffered from a permanent or substantial
physical deformity, loss of use of a limb, or loss of a
bodily organ system or permanent physical functional injury
that permanently prevents the injured person from being able
to independently care for self and perform life sustaining
activities. The trial court found the evidence demonstrated
Ickes had recovered from his injury and suffered from
restless leg syndrome and some persistent pain from nerve
damage. The trial court applied the cap on compensatory
damages under R.C. 2315.18 and reduced the verdict or capped
the amount to $250, 000. Because the jury found Ickes 55%
responsible for the cause of Napier's injury, the award
in favor of Napier was $137, 500.
and Ickes - The Mutual Release of Claims
On May 29, 2018, Napier, Ickes, and Nationwide Mutual
Insurance Company entered into a Mutual Release of Claims.
The Mutual Release of Claims stated as follows:
For and in consideration of the payment to me, Frederick Alex
Napier * * * herein, of ($300, 000) three hundred thousand
dollars, plus court costs as outlined in R.C. 2303.21 and
Civ.R. 54(D) that pertain to prosecuting the claim against
Terry Ickes, up to ($10, 000) ten thousand dollars, the
receipt and sufficiency of which is acknowledged in exchange
for the executed release, Frederick Alex Napier * * *, does
hereby release and discharge, Terry Ickes and Nationwide
Mutual Insurance Company, * * *
On June 8, 2018, Napier filed a Motion to Enforce Settlement
between Napier, Ickes, and Nationwide Mutual Insurance
Company. Napier stated Ickes and his insurer failed to pay
him $10, 000 in court costs. As part of the court costs,
Napier demanded $5, 000 in costs for paralegal services
during the jury trial, including video deposition playback at
trial. On August 8, 2018, the trial court considered the
evidence presented as to costs and awarded Napier $5, 043.07.
Included in that award was $600 for paralegal costs. The
trial court issued a judgment entry on August 27, 2018 making
the August 8, 2018 judgment entry a final, appealable
On September 7, 2018, Napier filed an appeal of the October
1, 2014; April 10, 2017; July 5, 2017; May 11, 2018; August
8, 2018; and August 27, 2018 judgment entries.
Napier raises five Assignments of Error:
"I. THE TRIAL COURT ERRED IN FINDING THAT STATE
FARM'S POLICY DID NOT COVER HUNTER GRAY'S ACT OF
SHOOTING NAPIER WITH A SHOTGUN LOADED WITH A BLANK SHELL,
ACCIDENTLY CAUSING SEVERE INJURIES THAT GRAY DID NOT INTEND
"II. THE TRIAL COURT ERRED WHEN IT DETERMINED THAT
AUSTIN PHILLIPS WAS NOT A DEFENDANT IN THE CASE, OR IN THE
ALTERNATIVE, ERRED WHEN IT DENIED NAPIER'S MOTION TO
SUBSTITUTE AUSTIN PHILLIPS AS A DEFENDANT.
"III. THE TRIAL COURT ERRED IN APPLYING R.C.
2315.18(B)'S CAP ON NONECONOMIC DAMAGES TO THE JURY
"IV. EVEN IF APPLICATION OF R.C. 2315.18(B)'S CAP ON
NONECONOMIC DAMAGES WERE PROPER, THE TRIAL COURT ERRED IN
APPLYING THE CAP PRIOR TO APPORTIONING LIABILITY UNDER R.C.
2315.25 IN ACCORDANCE WITH THE JURY'S VERDICT.
"V. THE TRIAL COURT ERRED WHEN IT ARBITRARILY REDUCED
THE AMOUNT OF COSTS ICKES OWED NAPIER UNDER THE PARTIES'
MUTUAL RELEASE OF CLAIMS."
State Farm's Motion for Summary Judgment
Napier argues in his first Assignment of Error that the trial
court erred when it granted State Farm's Motion for
Summary Judgment, finding that pursuant to the terms of the
homeowner's insurance policy, the policy precluded
liability coverage for the incident. We disagree.
We refer to Civ.R. 56(C) in reviewing a motion for summary
judgment which provides, in pertinent part:
Summary judgment shall be rendered forthwith if the pleading,
depositions, answers to interrogatories, written admissions,
affidavits, transcripts of evidence in the pending case and
written stipulations of fact, if any, timely filed in the
action, show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. * * * A summary judgment shall
not be rendered unless it appears from such evidence or
stipulation and only from the evidence or stipulation, that
reasonable minds can come to but one conclusion and that
conclusion is adverse to the party against whom the motion
for summary judgment is made, such party being entitled to
have the evidence or stipulation construed most strongly in
the party's favor.
The moving party bears the initial responsibility of
informing the trial court of the basis for the motion, and
identifying those portions of the record before the trial
court, which demonstrate the absence of a genuine issue of
fact on a material element of the nonmoving party's
claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662
N.E.2d 264 (1996). The nonmoving party then has a reciprocal
burden of specificity and cannot rest on the allegations or
denials in the pleadings, but must set forth "specific
facts" by the means listed in Civ.R. 56(C) showing that
a "triable issue of fact" exists. Mitseff v.
Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801
Pursuant to the above rule, a trial court may not enter
summary judgment if it appears a material fact is genuinely
disputed. Vahila v. Hall, 77 Ohio St.3d 421, 429,
674 N.E.2d 1164 (1997), citing Dresher v. Burt, 75
Ohio St.3d 280, 662 N.E.2d 264 (1996).
As an appellate court reviewing summary judgment motions, we
must stand in the shoes of the trial court and review summary
judgments on the same standard and evidence as the trial
court. Smiddy v. The Wedding Party, Inc., 30 Ohio
St.3d 35, 506 N.E.2d 212 (1987).
Insurance Contract Principles
An insurance policy is a contract between the insurer and the
insured. G & K Mgt. Servs., Inc. v. Owners Ins.
Co., 2014-Ohio-5497, 24 N.E.3d 1230 (5th Dist.), ¶
19 citing Pilkington N. Am., Inc. v. Travelers Cas. &
Sur. Co., 112 Ohio St.3d 482, 2006-Ohio-6551, 861 N.E.2d
121, ¶ 23. Whether a claim is covered under the terms of
the insurance policy, it is a question of law for the court
to decide. Generally, courts interpret insurance policies in
accordance with the same rules applied in interpreting other
types of contracts. Hybud Equip. Corp. v. Sphere Drake
Ins. Co., Ltd., 64 Ohio St.3d 657, 665, 597 N.E.2d 1096
In interpreting the contract, a court is to give effect to
the intent of the parties to the agreement. Steinborn v.
Farmers Ins. of Columbus, Inc., 5th Dist. Stark No.
2018CA00128, 2019-Ohio-1745, 2019 WL 2027216, ¶ 39
citing Erie Ins. Exchange v. Bullock,
2015-Ohio-5406, 55 N.E.3d 460 (5th Dist.), ¶ 24, citing
Chicago Title Ins. Co. v. Huntington Nat'l Bank,
87 Ohio St.3d 270, 719 N.E.2d 955 (1999), citing
Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216,
2003-Ohio-5849, 797 N.E.2d 1256. In doing so, "[w]e
examine the insurance contract as a whole and presume that
the intent of the parties is reflected in the language used
in the policy. We look to the plain and ordinary meaning of
language used in the policy unless another meaning is clearly
apparent from the contents of the policy. When the language
of a written contract is clear, a court may look no further
than the writing itself to find the intent of the
parties." Id. The general rule of liberal
construction cannot be employed to create an ambiguity where
there is none. Progressive Max Ins. Co. v. Grange Mut.
Cas. Co., 8th Dist. Cuyahoga No. 81656, 2003-Ohio-4564,
2003 WL 22019604, ¶ 16. "Only where a contract of
insurance is ambiguous and, therefore, reasonably susceptible
to more than one meaning must the policy language be
construed liberally in favor of the insured who seeks
coverage and strictly against the insurer who drafts the
instrument." Id. at ¶ 17.
Farm's Homeowners Policy Language
The Ohio Supreme Court has held, "[i]t is axiomatic that
an insurance company is under no obligation to its insured,
or to others harmed by the actions of an insured, unless the
conduct alleged of the insured falls within the coverage of
the policy." Allstate Ins. Co. v. Campbell, 128
Ohio St.3d 186, 2010-Ohio-6312, 942 N.E.2d 1090, ¶ 8
quoting Gearing v. Nationwide Ins. Co., 76 Ohio
St.3d 34, 36, 665 N.E.2d 1115 (1996). "Coverage is
provided if the conduct falls within the scope of the
coverage defined in the policy, and not within an exception
State Farm issued a homeowners insurance policy to Julie and
Jimmy Gray, the mother and father of Hunter Gray. The policy
was effective on the date of the incident, March 3, 2012. The
policy covered Hunter Gray because he was a member of his
The State Farm homeowners policy provides liability coverage
"[i]f a claim is made or a suit is brought against any
insured for damages because of bodily injury or property
damage to which this coverage applies, caused by an
occurrence." The State Farm homeowner's insurance
policy contains an "intentional injury exclusion"
and a "willful and malicious acts exclusion." The
Section II - LIABILITY COVERAGES
Section II - EXCLUSIONS
1. Coverage L and Coverage M do not apply to:
a. bodily injury or property
(1) which is either expected or intended by the