Haimbaugh v. Grange Mut. Cas. Co.

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

David and Sally Haimbaugh,

Haimbaugh Farms, Inc.,

Plaintiffs-Appellants,

No. 07AP-676

(C.P.C. No. 05CVC07-7634)

(REGULAR CALENDAR)

Grange Mutual Casualty Company,

Defendant-Appellee.

O P I N I O N

Rendered on August 7, 2008

Brigid E. Heid

, for appellants.

Gallagher, Gams, Pryor, Tallan & Littrell L.L.P.,

and

Timothy J. Ryan

, for appellee.

APPEAL from the Franklin County Court of Common Pleas.

FRENCH, J.

{¶1}

Plaintiffs-appellants, David and Sally Haimbaugh (the "Haimbaughs") and

Haimbaugh Farms, Inc., appeal the judgment of the Franklin County Court of Common

Pleas, which denied appellants' summary judgment motion and granted a summary

judgment motion from defendant-appellee, Grange Mutual Casualty Company.

{¶2}

The Haimbaughs hired Rick Seymour for a variety of tasks related to their

home and business. In particular, the Haimbaughs hired Rick Seymour to remodel their

No. 07AP-676

home. Seymour sent his crew to remodel the home, and the workers stole items from

the home. In addition, Seymour's employees damaged a bathroom that was not

supposed to have been part of the remodeling project.

{¶3}

The Haimbaughs gave Seymour a check for the remodeling work.

Seymour told the Haimbaughs that he could not cash the check, and the Haimbaughs

gave Seymour another check. Thereafter, Seymour cashed both checks. Seymour

then gave the Haimbaughs a check to cover the overpayment, but Seymour later

cancelled the check before the Haimbaughs cashed it.

{¶4}

The Haimbaughs also hired Seymour to assist with their tree farm, which

consists of approximately 40 to 55 acres of conifer trees. The trees are groomed for

landscape use and take three or four years to mature. The Haimbaughs hired Seymour

to trim trees. The Haimbaughs have consistently refused to allow anyone to cut down

the trees because the trees are sold live for landscaping.

{¶5}

In February 2002, Seymour and his crew cut down at least 760 trees on

the farm. The cut trees ranged from 15 to 20 feet tall. Seymour did not have

permission to be on the tree farm without the Haimbaughs or their assistant, Jason

McCoy, being present. However, Seymour and his crew cut the trees while the

Haimbaughs were on vacation and without McCoy being present.

{¶6}

In April 2002, appellee, Seymour's insurance company, refused to cover

the loss from the tree cutting incident. The Haimbaughs thereafter sued Seymour for

breach of their agreements to remodel their home and to trim trees on their farm. The

Haimbaughs also sued Seymour for "fraudulent misrepresentation, bounced check,

No. 07AP-676

removal of materials and items, and trespass and destruction of trees under R.C.

901.51." The Haimbaughs also sought punitive damages.

{¶7}

The case was set for trial before a magistrate in June 2004, but Seymour

failed to appear. The magistrate accepted evidence from the Haimbaughs and, on

July 1, 2004, rendered a decision upholding their claims. The magistrate stated:

The evidence is undisputed that Seymour and his

employees failed to properly perform the renovation of [the

Haimbaughs' home] but instead stole materials and items

from the premises.

Seymour * * * then allowed his

employees to cut the trees on the * * * tree farm. Whether

his actions were malicious may never be known, but they

were fraudulent, reckless, and wanton and warrant

imposition of punitive damages in addition to compensatory

damages.

Subsequently, the trial court adopted the magistrate's decision.

{¶8}

Appellants then sought a declaratory judgment against appellee stating

that the damage Seymour caused to their tree farm is covered by Seymour's Grange

insurance policy. Appellants attached to the complaint for declaratory judgment a copy

of Seymour's insurance policy, which states that the insurance covers property damage

caused by an "occurrence," which the policy defines as "an accident." Both parties

sought summary judgment. In doing so, the parties submitted supporting affidavits and

deposition testimony.

{¶9}

According to David Haimbaugh's deposition testimony, Seymour explained

that he and his crew cut down the trees to clear space for trimming equipment.

However, Seymour testified during deposition as follows:

[Appellee's Attorney:] And we know that there was work

done to cut down trees [on the tree farm]. What, from your

perspective, led up to you believing that that was the work –

No. 07AP-676

that was work that the Haimbaughs were, in fact, asking you

to do * * *?

[Seymour:] We had had, myself and David, had discussion

about trimming trees and thinning some trees out on the

farm to get the nursery into a better, manageable situation.

And that was the gist of the conversation, to go ahead and

do that.

[Appellee's Attorney:] Okay. And so was there – how did it

come about that you understood that you should go ahead

and do it? Were you initially talking about it generally

speaking or did that first conversation result in him saying,

go ahead and do it?

[Seymour:] It resulted in him telling me to do it.

* * *

[Appellee's Attorney:] * * * [D]id you understand that [David

Haimbaugh] was, in essence, saying, Rick, use your

judgment, I'm authorizing you to use your judgment in how to

trim and how many to thin?

[Seymour:] That was my understanding.

* * *

[Appellee's Attorney:] Did you think when you walked the

farm after the fact, did you think then that the Haimbaughs

felt that the entire project was a disaster?

* * *

[Seymour:] I honestly think that [David Haimbaugh] thought

none of them should have been cut. But it was my opinion

to get the farm where it was supposed to be, that we had to

cut some of them.

(Seymour Depo. 44-45, 47, 49-50.)

{¶10}

Charles West, senior litigation counsel for appellee, testified as follows

during deposition. Appellee did not intervene in the Haimbaughs' lawsuit against

Seymour. The file pertaining to the insurance claim regarding the tree farm incident

No. 07AP-676

contains no copy of the complaint from that lawsuit. Had appellee received the

complaint, appellee would have intervened.

In May 2004, appellee received a

subpoena for an individual once employed with appellee to testify in that case. The

individual no longer worked with appellee, and the subpoena issuer told appellee to

disregard the subpoena. Thus, no one on behalf of appellee appeared in court in the

case.

In October 2004, the Haimbaughs' attorney notified appellee that the

Haimbaughs had obtained a judgment against Seymour in July 2004. Upon receiving

the letter, West believed it was too late for appellee to intervene and file a motion to

vacate the judgment.

{¶11}

Eric Owens, a former claims representative for appellee who handled the

insurance claim for the tree farm incident, testified during deposition that, if he would

have known about the Haimbaughs' lawsuit against Seymour, he would have requested

a copy of the complaint. However, James Ervin stated in an affidavit that he and his

former law firm represented Seymour in that action. Ervin also stated that he spoke

with Eric Owens and told Owens he was representing Seymour in a lawsuit filed by the

Haimbaughs for damage to their tree farm. In particular, he stated that he "explored

with Mr. Owens whether [appellee] would provide coverage for the claim despite its

original denial." Because he had no record of sending a copy of the complaint to

Owens, Ervin concluded that he "was never asked to provide the complaint."

{¶12}

Ultimately, the trial court granted appellee's summary judgment motion,

and the trial court denied appellants' summary judgment motion. The trial court

concluded, in agreement with appellee's arguments, that Seymour's insurance policy

did not cover Seymour's February 2002 tree cutting incident because the incident did

No. 07AP-676

not constitute an "occurrence," i.e., "accident," under the policy. The trial court defined

"accident" as:

1 a: an unforeseen and unplanned event or circumstance b:

lack of intention or necessity 2 a: an unfortunate event

resulting esp. from carelessness or ignorance b: an

unexpected happening causing loss or injury which is not

due to any fault or misconduct on the part of the person

injured but for which legal relief may be sought.

{¶13}

The trial court found that it was undisputed that Seymour and his crew

"intentionally acted and achieved their intended results, i.e. they intended to and did cut

down almost 760 trees. This result was not unplanned or unforeseen. Being

intentional, neither the act nor the result was an accident."

{¶14}

The trial court recognized Seymour's claim that he cut the trees to improve

the tree farm. The trial court explained, "[r]egardless of his subjective intent as to a

possible benefit to the farm, the loss of over 700 mature trees (i.e. products, to the

business) clearly would damage the farm as these destroyed trees could not be sold.

* * * Clearly, cutting over 700 trees in the 15-20 foot range from a tree farm is

substantially certain to cause damage, regardless of Mr. Seymour's subjective intent."

{¶15}

Appellants appeal, raising one assignment of error:

The trial court erred as a matter of law in granting summary

judgment in favor of Defendant-Appellee Grange Mutual

Casualty Company and in denying summary judgment for

Plaintiffs-Appellants David Haimbaugh, Sally Haimbaugh

and Haimbaugh Farms, Inc.

{¶16}

In their single assignment of error, appellants argue that the trial court

erred in granting appellee's summary judgment motion and in denying appellants'

summary judgment motion. We disagree.

No. 07AP-676

{¶17}

We review a summary judgment de novo.

Koos v. Cent. Ohio Cellular,

Inc.

(1994), 94 Ohio App.3d 579, 588, citing

Brown v. Scioto Cty. Bd. of Commrs.

(1993), 87 Ohio App.3d 704, 711. When an appellate court reviews a trial court's

disposition of a summary judgment motion, it applies the same standard as the trial

court and conducts an independent review, without deference to the trial court's

determination.

Maust v. Bank One Columbus, N.A.

(1992), 83 Ohio App.3d 103, 107;

Brown

at 711. We must affirm the trial court's judgment if any grounds the movant

raised in the trial court support it.

Coventry Twp. v. Ecker

(1995), 101 Ohio App.3d 38,

41-42.

{¶18}

Pursuant to Civ.R. 56(C), summary judgment "shall be rendered forthwith

if the pleadings, depositions, answers to interrogatories, written admissions, affidavits,

transcripts of evidence, 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." Accordingly, summary judgment is appropriate

only under the following circumstances: (1) no genuine issue of material fact remains to

be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3)

viewing the evidence most strongly in favor of the non-moving party, reasonable minds

can come to but one conclusion, that conclusion being adverse to the non-moving party.

Harless v. Willis Day Warehousing Co.

(1978), 54 Ohio St.2d 64, 66.

{¶19}

"[T]he 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,

No. 07AP-676

1996-Ohio-107. Once the moving party meets its initial burden, the non-movant must

set forth specific facts demonstrating a genuine issue for trial. Id. at 293. Because

summary judgment is a procedural device to terminate litigation, courts should award it

cautiously after resolving all doubts in favor of the non-moving party.

Murphy v.

Reynoldsburg

, 65 Ohio St.3d 356, 358-359, 1992-Ohio-95, quoting

Norris v. Ohio Std.

Oil Co.

(1982), 70 Ohio St.2d 1, 2.

{¶20}

Here, appellants first assert the application of collateral estoppel against

appellee. Collateral estoppel prevents the relitigation in a subsequent case the facts

and issues that were fully litigated in a previous case.

State ex rel. Stacy v. Batavia

Local School Dist. Bd. of Edn.

, 97 Ohio St.3d 269, 2002-Ohio-6322, ¶16. "[A] fact or a

point that was actually and directly at issue in a previous action, and was passed upon

and determined by a court of competent jurisdiction, may not be drawn into question in

a subsequent action between the same parties or their privies, whether the cause of

action in the two actions be identical or different."

Fort Frye Teacher Assn., OEA/NEA

v. State Emp. Relations Bd.

, 81 Ohio St.3d 392, 395, 1998-Ohio-435. Collateral

estoppel "does not apply merely to those who were parties to the proceeding. It applies

likewise to those in privity with the litigants and to those who could have entered the

proceeding but did not avail themselves of the opportunity."

Howell v. Richardson

(1989), 45 Ohio St.3d 365, 367.

{¶21}

Appellee is in privity with Seymour, a party in the first litigation. See

Corydon Palmer Dental Soc. v. Johnson, Johnson & Assocs., Inc.

(Feb. 16, 1988),

Mahoning App. No. 87 C.A. 121 (stating that an insurer is in privity with the insured).

Likewise, in accordance with

Howell

, appellee had the opportunity to intervene in that

No. 07AP-676

lawsuit, given that appellee had notice through conversations with Seymour's attorney

and through receipt of a subpoena pertaining to the lawsuit. We turn, then, to the

application of collateral estoppel under these circumstances.

{¶22}

Appellants base their collateral estoppel argument on the assertion that, in

the first lawsuit, the magistrate concluded that Seymour recklessly cut trees on the

Haimbaughs' farm. In support, appellants rely on

Western Reserve Cas. v. Glagola

Stark App. No. 2005CA00225, 2006-Ohio-6013. In

Glagola

, a decedent's estate filed a

claim with the homeowner's insurance of Glagola, the decedent's killer, because

Glagola fatally shot the decedent in Glagola's home. Id. at ¶7. Glagola was convicted

of reckless homicide for the shooting, and Glagola's insurance company filed a

declaratory action asserting that Glagola's actions were intentional and not covered

under the insurance policy, which precluded coverage for expected or intended injuries.

Id. at ¶7-8, 11-13. The trial court found that Glagola's conviction for reckless homicide

barred recovery under the policy. Id. at ¶9. The appellate court disagreed and held the

following: (1) recklessness does not equate with intentional conduct; and (2) a

conviction for an offense containing the element of recklessness does not, as a matter

of law, fall under language in an insurance policy that precludes coverage for intentional

injuries. Id. at ¶40, 44.

{¶23}

Here, relying on

Glagola

, appellants contend that, because the magistrate

in the first lawsuit deemed Seymour's actions reckless, the trial court should have

applied collateral estoppel to preclude appellee from subsequently litigating whether

Seymour's insurance policy covered Seymour's actions, which appellee characterizes

as intentional.

No. 07AP-676

{¶24}

To support their collateral estoppel argument, appellants note that, in the

first lawsuit, the trial court upheld the Haimbaughs' claim under R.C. 901.51, which

states:

No person, without privilege to do so, shall recklessly cut

down, destroy, girdle, or otherwise injure a vine, bush, shrub,

sapling, tree, or crop standing or growing on the land of

another or upon public land.

{¶25}

We emphasize, however, that Seymour's liability under R.C. 901.51 does

not itself conclusively deem Seymour's conduct reckless, and consideration of the

underlying facts of the R.C. 901.51 claim is relevant. In

Nationwide Mut. Ins. Co. v.

Irish

, 167 Ohio App.3d 762, 2006-Ohio-3227, the Eleventh District Court of Appeals

concluded that an insured's guilty plea and conviction for aggravated assault under R.C.

2903.08(A)(2)(b), which contains a mental state of recklessness, did not conclusively

establish whether the policy covered the insured's conduct.

Irish

at ¶28, 37-42. Rather,

the appellate court noted that the consideration of the underlying facts of the conviction

was relevant to whether the policy covered the conduct. Id.

{¶26}

Consideration of the underlying facts of the R.C. 901.51 liability is relevant

because recklessness is not the only mental state that may apply to the statute. R.C.

2901.22(E) states that, when a section defining an offense provides that "recklessness

suffices to establish an element of an offense, then knowledge or purpose is also

sufficient culpability for such element." See, also,

Vanderbeck v. CSX R.R.

(Feb. 7,

1992), Huron App. No. H-90-45 (affirming R.C. 901.51 liability where party knowingly

removed trees). Here, in the first action, the trial court did not specify whether Seymour

acted recklessly or, for example, knowingly.

No. 07AP-676

{¶27}

To be sure, the July 2004 magistrate's decision in the first action stated:

"Whether [Seymour's] actions were malicious may never be known, but they were

fraudulent, reckless, and wanton and warrant imposition of punitive damages in addition

to compensatory damages." However, as appellants acknowledge in their reply brief,

the magistrate did not link these descriptions of Seymour's behavior to particular

conduct at issue in that first lawsuit. Rather, the magistrate essentially made the

statement as a general depiction supporting an award of punitive damages. In this

regard, the magistrate's determinations did not deem Seymour's conduct in the tree

cutting incident reckless, as opposed to intentional. The magistrate in the first action did

not conclusively determine the issue of Seymour's mental intent in the tree cutting

incident. Instead, the magistrate simply held Seymour liable under R.C. 901.51.

{¶28}

Thus, we conclude that the trial court in the Haimbaughs' action against

Seymour did not determine whether Seymour intentionally harmed appellants in the tree

cutting incident. Accordingly, we conclude that collateral estoppel did not preclude

appellee from subsequently litigating in appellants' declaratory action whether

Seymour's insurance policy with appellee covered Seymour's actions in the tree cutting

incident. Thus, the trial court did not err by not applying collateral estoppel against

appellee.

{¶29}

Next, appellants argue that the court erred by concluding that Seymour's

actions did not constitute an "accident" under the policy. The policy states that appellee

"will pay those sums that the insured becomes legally obligated to pay as damages

because of 'bodily injury' or 'property damage' to which this insurance applies." The

policy specifies that coverage will apply only if the injury or damage "is caused by an

No. 07AP-676

'occurrence' that takes place in the 'coverage territory' " and occurs during the policy

period.

{¶30}

The policy defines an "occurrence" as "an accident," but does not define

"accident." When a policy does not define a term, we must give the term its ordinary

meaning.

Morner v. Giuliano

, 167 Ohio App.3d 785, 2006-Ohio-2943, ¶25. "The

ordinary meaning of the term 'accident' in an insurance policy refers to 'unintended' or

'unexpected' happenings." Id. As an example, the Supreme Court of Ohio has stated

that "inherent in a policy's definition of 'occurrence' is the concept of an incident of an

accidental, as opposed to an intentional, nature." (Emphasis omitted.)

Gearing v.

Nationwide Ins. Co.

, 76 Ohio St.3d 34, 38, 1996-Ohio-113. The Supreme Court also

has stated that the word "occurrence" when defined as "accident" is "intended to mean

just that—an unexpected, unforeseeable event."

Randolf v. Grange Mut. Cas. Co.

(1979), 57 Ohio St.2d 25, 29.

{¶31}

The trial court found that Seymour's actions did not constitute an accident,

and therefore an occurrence, under the policy for two reasons. First, the court

concluded that Seymour's actions were intentional, that is, he intended to cut down the

trees. Second, the court also concluded that, even if there were no direct intent to harm

appellants' farm, the harm was substantially certain to occur and, therefore, not

accidental.

{¶32}

The Supreme Court of Ohio has recognized these two levels of intent as

they might relate to intentional acts in these circumstances. "The first level, * * * 'direct

intent,' is where the actor does something which brings about the exact result desired.

In the second, the actor does something which he believes is substantially certain to

No. 07AP-676

cause a particular result, even if the actor does not desire that result."

Harasyn v.

Normandy Metals, Inc.

(1990), 49 Ohio St.3d 173, 175. In certain circumstances, the

court has found that a court may infer intent to injure and deprive coverage where a

substantial certainty of harm existed. See, e.g.,

Gearing

, supra.

{¶33}

Buckeye Union Ins. Co. v. New England Ins. Co.

, 87 Ohio St.3d 280,

283, 1999-Ohio-67, however, the court referred to those circumstances under which it

had inferred intent to injure as "very limited instances." Thus, according to

Buckeye

Union

, the "normal standard" for determining insurability is to make a factual

determination as to whether the actor intended the actual harm that resulted. Id

at 284.

In other words, "an intent to injure, not merely an intentional act, is a necessary element

to uninsurability. Whether the insured had the necessary intent to cause injury is a

question of fact." Id. at 283, citing

Physicians Ins. Co. v. Swanson

(1991), 58 Ohio

St.3d 189, 193. In a concurring opinion, Justice Cook recognized the court's holding as

a departure from

Gearing

and the substantial certainty method for precluding

insurability. See id., at 288 (Cook, J., concurring).

{¶34}

Doe v. Shaffer

, 90 Ohio St.3d 388, fn. 5, 2000-Ohio-186, the court

acknowledged "that there is debate within this court concerning the current state of the

law on whether 'substantial-certainty' torts fall within the public policy exclusion for

insurance coverage." And, in

Penn Traffic Co. v. AIU Ins. Co.

, 99 Ohio St.3d 227, 2003-

Ohio-3373, the court returned briefly to a substantial certainty standard, at least in the

context of employer-intentional torts, thus adding even more uncertainty about whether

current law allows substantial-certainty torts to preclude insurability. Recent appellate

opinions reflect this uncertainty. See, e.g.,

Talbert v. Continental Cas. Co.

, 157 Ohio

No. 07AP-676

App.3d 469, 2004-Ohio-2608 (distinguishing Supreme Court precedent because

exclusion of substantial-certainty tort from coverage would render policy at issue

illusory);

State Farm Mut. Auto. Ins. Co. v. Hayhurst

(May 31, 2000), Pickaway App. No.

99 CA 25, fn. 1 (declining to follow the court's plurality opinion in

Buckeye Union

);

Altvater v. Ohio Cas. Ins. Co.

, Franklin App. No. 02AP-422, 2003-Ohio-4758 (applying

Penn Traffic

and substantial-certainty analysis in the context of an employer intentional

tort claim).

{¶35}

We conclude that, in this case, we need not consider whether Seymour's

actions were substantially certain to produce harm or whether such an analysis is

consistent with Supreme Court precedent. Instead, we limit our analysis to the specific

language of the policy before us and find that Seymour's intentional acts deprive him of

coverage.

{¶36}

As we noted, the policy provides coverage for "bodily injury" and "property

damage" under certain circumstances. The policy defines "property damage" in two

ways. Property damage means "[p]hysical injury to tangible property, including all

resulting loss of use of that property * * *; or [l]oss of use of tangible property that is not

physically injured."

{¶37}

Appellants assert that Seymour did not intend to cause any harm to them.

In support, they cite his expectation of payment for his services and his statements that

he thought thinning the trees would benefit the farm. It is undisputed, however, that

Seymour intended to cut down the trees and to deprive appellants of the use of the

trees for sale. Thus, he intended to cause "property damage" as that term is defined

under the policy.

No. 07AP-676

{¶38}

Seymour's intent to cause property damage, as defined in the policy,

distinguishes this case from those cases in which the court inferred intent and allowed

preclusion of coverage where the actor did not intend the injury, but the injury from the

actor's intentional act was substantially certain to occur. In

Gearing

, for example, the

actor intended to molest children, but testified that he did not intend to harm them

physically. In

Wight v. Michalko

, Portage App. No. 2004-P-0038, 2005-Ohio-2076, the

actor intended to throw a rock through a window, but not to hit anyone inside. And in

Westfield Ins. Co. v. Blamer

(Sept. 2, 1999), Franklin App. No. 98AP-1576, the actor

intended to set fire to a couch, but not to the house.

{¶39}

In all of those cases, the courts had to engage, as the lower court here

engaged, in an analysis of substantial certainty. Given the undisputed facts before us,

however, we conclude that substantial certainty analysis is unnecessary. Instead, as

we noted, the undisputed evidence shows that Seymour acted with a direct intent to cut

down the trees and to deprive appellants of the use of those trees, thus intending

physical damage as it is defined in the policy.

{¶40}

For these reasons, based on the specific language of the policy before us

and on the undisputed evidence, we conclude that the policy does not provide

coverage. Seymour not only acted with the direct intent to cut down the trees, he

achieved the very result he intended—depriving appellants of the use of those trees for

sale. His actions do not constitute an "accident" or an "occurrence" under the policy,

and the court did not err in so concluding. Given this conclusion, we need not discuss

appellants' alternative argument regarding the inapplicability of the policy exclusion for

property damage arising out of operations on real property. App.R. 12(A)(1)(c).

No. 07AP-676

{¶41}

Accordingly, we conclude that the trial court did not err by granting

appellee's summary judgment motion or by denying appellants' summary judgment

motion. Having overruled appellants' single assignment of error, we affirm the judgment

of the Franklin County Court of Common Pleas.

Judgment affirmed.

McGRATH, P.J., concurs.

BROWN, J., concurs in part and dissents in part.

BROWN, J., concurring in part and dissenting in part.

{¶42}

Being unable to concur with the majority opinion in the analysis regarding

intent, I respectfully dissent as to this issue alone. Included in the opinion is a

discussion of whether a substantial certainty analysis is relevant to determining

insurance coverage. The majority then concludes that such an analysis is not necessary

in this case. In

Penn Traffic Co. v. AIU Ins. Co

., 99 Ohio St.3d 227, 2003-Ohio-3373, the

Ohio Supreme Court did apply a substantial certainty standard; however, it was in the

context of an employer intentional tort and not in the context of interpretation of the

language of an insurance contract.

{¶43}

The focus of the majority opinion, with which I agree, is on the language of

the policy and the actions of Seymour. However, I disagree with the conclusion that

Seymour's intentional act of cutting down the trees deprived him of coverage.

{¶44}

The policy provides coverage for "property damage" which means

"[p]hysical injury to tangible property, including all resulting loss of use of that property

* * * or [l]oss of use of tangible property that is not physically injured."

{¶45}

Buckeye Union Ins. Co. v. New England Ins. Co

. (1999), 87 Ohio St.3d

280, 283, citing

Physicians Ins. Co. of Ohio v. Swanson

(1991), 58 Ohio St.3d 189, 193,

No. 07AP-676

the court stated "an intent to injure, not merely an intentional act, is a necessary

element to uninsurability. Whether the insured had the necessary intent to cause injury

is a question of fact."

{¶46}

The majority concludes that Seymour intended to cut down the trees and

to deprive appellants of the use of those trees for sale. While it is undisputed Seymour

intended to cut down the trees, there is conflicting evidence regarding the instructions

given to him by the owner of the property about thinning the trees, whether he had

authority to exercise his judgment, what his intentions were in thinning the trees and

whether he made a mistake. Whether there was an intent to injure is a question of fact

to be determined by a jury and I would remand this case to the trial court.

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