Opinion
Case No. 3:19-cv-01732-JGC
01-04-2021
Matthew ROGERS, Plaintiff, v. SURE CONVEYORS, INC. et al., Defendants.
For the Plaintiff: Frank L. Gallucci, III, Plevin & Gallucci, Cleveland Ohio, John A. Smalley, Dyer, Garofalo, Mann & Schultz, Dayton, Ohio, Louis E. Grube, Law Office of Paul W. Flowers, Cleveland, Ohio, Paul W. Flowers, Paul W. Flowers Co., L.P.A., Cleveland, Ohio, David R. Grant, Plevin & Gallucci, Cleveland, Ohio. For Sure Conveyors, Inc.: Dane A. Lupo, Jr., Kenneth L. Lupo, Ryan M. Dempsey, Lupo & Koczkur, Grosse Pointe, Michigan. For A1 AG Services, LLC and A1 AG Service Poultry and Equine, LLC: D. Casey Talbott, M. Charles Collins, Eastman & Smith, Toledo, Ohio, Merle D. Evans, III, Milligan Pusateri, Canton, Ohio. For Bender Electrical Contracting, LTD: Andrew J. Ayers, Rohrbachers Cron Manahan Trimble Zimmerman, Toledo, Ohio. For BGNR Poultry, LLC; Howe's Hens, LLC; Todd Showner; and Jeffrey M. Howe: Paul E. Howell, Howell, Gast-Schlater & Company, St. Henry, Ohio, James J. Imbrigiotta, Glowacki, Imbrigiotta & Doucette, Thompson Hine, Middleburg Heights, Ohio. For Cooper Farms, Inc.: Craig G. Pelini, Pelini, Campbell & Williams - North Canton, North Canton, Ohio. For United Ohio Insurance Co.: Matthew R. Planey, Crabbe, Brown & James, Columbus, Ohio.
For the Plaintiff: Frank L. Gallucci, III, Plevin & Gallucci, Cleveland Ohio, John A. Smalley, Dyer, Garofalo, Mann & Schultz, Dayton, Ohio, Louis E. Grube, Law Office of Paul W. Flowers, Cleveland, Ohio, Paul W. Flowers, Paul W. Flowers Co., L.P.A., Cleveland, Ohio, David R. Grant, Plevin & Gallucci, Cleveland, Ohio.
For Sure Conveyors, Inc.: Dane A. Lupo, Jr., Kenneth L. Lupo, Ryan M. Dempsey, Lupo & Koczkur, Grosse Pointe, Michigan.
For A1 AG Services, LLC and A1 AG Service Poultry and Equine, LLC: D. Casey Talbott, M. Charles Collins, Eastman & Smith, Toledo, Ohio, Merle D. Evans, III, Milligan Pusateri, Canton, Ohio.
For Bender Electrical Contracting, LTD: Andrew J. Ayers, Rohrbachers Cron Manahan Trimble Zimmerman, Toledo, Ohio.
For BGNR Poultry, LLC; Howe's Hens, LLC; Todd Showner; and Jeffrey M. Howe: Paul E. Howell, Howell, Gast-Schlater & Company, St. Henry, Ohio, James J. Imbrigiotta, Glowacki, Imbrigiotta & Doucette, Thompson Hine, Middleburg Heights, Ohio.
For Cooper Farms, Inc.: Craig G. Pelini, Pelini, Campbell & Williams - North Canton, North Canton, Ohio.
For United Ohio Insurance Co.: Matthew R. Planey, Crabbe, Brown & James, Columbus, Ohio.
ORDER
James G. Carr, Sr. U.S. District Judge This case arises out of an incident that occurred at a barn that defendant Howe's Hens, LLC uses in its egg production facility. A Howe's Hens employee, plaintiff Matthew Rogers, was cleaning a conveyor belt when his arm was pulled into the belt's end roller causing serious and permanent injuries. Rogers filed this action to recover for his resulting damages.
Intervenor United Ohio Insurance Company ("United Ohio"), issued a Farmowners Policy (Doc. 102-2) and a Farm Excess/Catastrophe Liability Policy (Doc. 102-3) to defendant Jeffrey M. Howe. Those policies included defendant's Howe's Hens and BGNR Poultry, LLC ("BGNR") as additional insureds. (Doc 102-2, pgID 1018-19); (Doc. 102-3, pgID 1084-85, 1088 ¶ 10(a)). Howe is the sole member of Howe's Hens and BGNR.
United Ohio intervened in this case, seeking a declaration that it has no obligation to defend or indemnify its insureds for Rogers’ claims.
Pending are United Ohio's motion seeking summary judgment against Howe and Howe's Hens, (Doc. 102), and defendants Howe, Howe's Hens and BGNR's (collectively, the "insureds") counter-motion for summary judgment on United Ohio's duty to defend and indemnify them for Rogers’ claims. (Doc. 103-1). For the following reasons, I grant United Ohio's motion and deny in part the insureds’ motion. I defer ruling on whether coverage exists for BGNR's potential liability.
Discussion
1. Coverage for an Employer's Intentional Tort
Rogers’ complaint alleges that insureds left the conveyor belt pinch point unguarded without the necessary safety equipment to prevent a person's arm from being pulled into the end roller. (Doc 1. pgID 25). He alleges that the insureds are liable for an employer intentional tort pursuant to O.R.C. § 2745.01. He also alleges that Howe is liable for a coemployee intentional tort pursuant to Blankenship v. Cincinnati Milacron Chemicals, Inc. , 69 Ohio St. 2d 608, 433 N.E.2d 572 (1982) and Fyffe v. Jeno's, Inc., 59 Ohio St.3d 115, 118, 570 N.E.2d 1108 (1991).
United Ohio argues that each policy's exclusion for intentional torts precludes any insurance coverage for Rogers’ claims against Howe and Howe's Hens. The Farmowners policy exclusion provides:
United Ohio does not seek summary judgment as to BGNR. The claims against it do not allege an employer intentional tort.
This insurance does not apply to:
2a. Intentional Injury
Bodily injury by accident or bodily injury by disease intentionally caused or aggravated by you, or bodily injury by accident or bodily injury by disease resulting from an act which is determined to have been committed by you if it was reasonable to believe that an injury is substantially certain to occur.
(Doc. 102-2, pgID 1014).
The Excess/Catastrophe policy exclusions provide:
4. Coverage under Insuring Agreement II [excess policy] does not apply:
...
k. for liability of an employee for:
(1) bodily injury to you or another employee.
...
bb. to any obligation for which the insured or any carrier as his insurer may be held liable under any workers’ or workman's’ compensation ... or similar law;
(Doc. 102-3, pgID 1095).
Ohio's public policy precludes insurance coverage for employer intentional torts. Gearing v. Nationwide Ins. Co. , 76 Ohio St. 3d 34, 38, 1996-Ohio-113, 665 N.E.2d 1115. In passing Ohio's statute, O.R.C. § 2745.01, governing employers’ liability for intentional torts, "the General Assembly intended to limit claims for employer intentional torts to situations in which an employer acts with the ‘specific intent’ to cause an injury to another." Houdek v. ThyssenKrupp Materials N.A., Inc. , 134 Ohio St. 3d 491, 497, 2012-Ohio-5685, 983 N.E.2d 1253 ¶¶ 24-25.
Section 2745.01 provides:
(A) In an action brought against an employer by an employee, or by the dependent survivors of a deceased employee, for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be liable unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.
(B) As used in this section, "substantially certain" means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.
(C) Deliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance creates a rebuttable presumption that the removal or misrepresentation was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result.
....
Ohio courts have recognized that, because the statute defines "substantially certain" as requiring the employer to have acted with the deliberate intent to cause an employee's injury, there is no meaningful legal distinction between claims that an employer intended to injure an employee and claims that it acted with "the belief that the injury was substantially certain to occur." Hoyle v. DTJ Ents., Inc. , 143 Ohio St. 3d 197, 2015-Ohio-843, 36 N.E.3d 122, 127, ¶ 10. Thus, "[a]bsent a deliberate intent to injure another, an employer is not liable for a claim alleging an employer intentional tort and the injured employee's exclusive remedy is within the worker's compensation system." Id. ¶ 11 ; Houdek, supra , ¶ 25.
The United Ohio Farmowners policy's intentional tort exclusion tracks the language of § 2745.01. It excludes coverage for employer intentional torts whether the employer had the specific intent to injure the employee or acted with the belief that the injury was substantially certain to occur. (Doc. 102-2, pgID 1014).
United Ohio argues that because employees’ tort claims are subject to the worker's compensation system, employers can be liable for such claims if, and only if, they committed the tort intentionally. Because its policies explicitly exclude coverage for employer intentional torts, United Ohio contends, there can be no coverage for Rogers’ claims against his employer, Howe's Hens. I agree.
Under Ohio law, employer torts either are unintentional, and therefore covered by worker's compensation, or they are intentional. See Ulrick v. Kunz , 349 F. App'x 99, 101 (6th Cir. 2009). While Ohio law regarding insurance coverage for alleged intentional torts may have been unclear at some time, the Ohio Supreme Court established in Hoyle, supra , ¶ 34, and again in H.P. Mfg. Co., Inc. v. Westfield Ins. Co. , 2018-Ohio-2849, 117 N.E.3d 146, 149, ¶¶ 12-16, that an insurance policy exclusion for an insured's act committed with the intent to injure an employee precludes coverage for employer intentional torts, whether the plaintiff proves intent subjectively or through the statutory rebuttable presumption in § 2745.01(C).
Hoyle, supra , ¶ 23, and H.P. Mfg., supra , ¶¶ 12-16, held that intentional employer torts are uninsurable whether the insured acted with the personal, subjective desire to cause injury or if the intent is rebuttably presumed pursuant to § 2745.01 because the employer removed or disabled a safety device. The insured's reliance on cases decided before those cases that held the employer must have acted with the direct subjective intent to cause injury to be denied coverage carries no weight.
Rogers’ claim against Howe's Hens is solely for committing an intentional act that was substantially likely to cause his injury, which, under current Ohio law, is an intentional tort within the United Ohio policies’ exclusions. Therefore, "[t]here is no set of facts under which [Howe's Hens] could be legally liable to [its employee] that falls within the policy's coverage." Hoyle, supra , ¶ 27.
Howe's Hens argues that I should not apply these settled rules of Ohio law because to do so would render the Farm Employer's Liability Coverage endorsement to the Farmowners policy illusory. The argument lacks merit.
"An insurance provision is illusory when it appears to grant a benefit to the insured, although in reality it does not." Beaverdam Contracting [v. Erie Ins. Co. ], 2008-Ohio-4953 at ¶ 49. However, where the insurance contract contains some coverage for the insured, it is not illusory. See Ward v. United Foundries, Inc., 129 Ohio St.3d 292, 951 N.E.2d 770, 2011-Ohio-3176, ¶ 24. So long as an exclusion does not eliminate all coverage under a policy, it will not render the policy illusory."
Cincinnati Specialty Underwriters Ins. Co. v. Larschied , 2014-Ohio-4137, ¶ 33, 2014 WL 4672392, at *8.
In rejecting the same "illusory coverage" argument that Howe's Hens makes here regarding a policy containing the same exclusion for employer intentional torts, the court in Ward v. United Foundries, Inc. , 2011-Ohio-3176, 129 Ohio St. 3d 292, 951 N.E.2d 770, ¶ 24, explained its decision as follows:
Although the stop-gap endorsement may not have added the coverage that United intended, it did add coverage for "employer's liability hazards" that were expressly excluded in the CGL policy: coverage for consequential bodily injury (claims by relatives of an employee for their injuries resulting as a consequence of the employee's injury), claims alleging liability under the dual-capacity doctrine (liability both as employer and in another capacity), and contribution or indemnification claims of third parties resulting from workplace injuries. When there is some benefit to the insured from the face of the endorsement, it is not an illusory contract.
Howe's Hens argues, nonetheless, without citation, that I should find the Farm Employer's Liability coverage illusory because the coverage that it does provide is not "meaningful." (Doc. 111, pgID 1221).
As set out above, however, determining how meaningful the coverage may be is not Ohio's standard for illusory insurance. Ohio law holds the applicable standard is whether the exclusion "eliminates all coverage under a policy." Cincinnati Specialty Underwriters, supra , ¶ 33, 2014 WL 4672392, at 8 ; accord Ward, supra , 129 Ohio St.3d 292, 951 N.E.2d 770, ¶ 24. It also holds that I "should neither create coverage from whole cloth nor imagine ambiguity where none exists." Still v. Fox , 67 Ohio Misc. 2d 67, 71, 644 N.E.2d 1133, 1136 (Mun. 1994), aff'd , No. C-940954, 1995 WL 596062 (Ohio Ct. App. Oct. 11, 1995) (citing Fuerstenberg v. Mowell (1978), 63 Ohio App.2d 120, 17 O.O.3d 306, 409 N.E.2d 1035.)
This is not to say that there might not be some point at which a policy provides coverage that is of such minimal benefit that it could be held illusory. That issue is not before me because the Ohio courts cited above hold that the remaining coverages other than that for intentional torts are not illusory.
Moreover, if the coverage provided is not that which the insureds believed they were purchasing, their "remedy, if any, would more appropriately be determined in an action for rescission of the insurance contract ...." Royal Paper Stock Co. v. Meridian Ins. Co. , 94 Ohio App. 3d 327, 333, 640 N.E.2d 886, 890, dismissed, 70 Ohio St. 3d 1440, 638 N.E.2d 1043 (1994).
Thus, Howe's Hens’ illusory coverage argument fails, and United Ohio's motion for summary judgement as to coverage for Howe's Hens is granted.
2. Coverage for Howe's Potential Liability for a Coemployee Intentional Tort
A. The Farmowners Policy
The only claim Rogers has asserted against Howe, personally, is for a coemployee intentional tort. (Doc. 1, pgID 24-26). The parties’ coverage dispute relates to the following two exclusions in the Farmowners policy:
Howe's argument that the intentional tort claim pled against him somehow can be read to allege a negligence claim is meritless. In addition to being contrary to the language of the complaint, that argument ignores the black-letter law that worker's compensation law precludes claims of employer negligence. See, e.g. , Northland Ins. Co. v. Stewart Title Guar. Co. , 327 F.3d 448, 456 (6th Cir. 2003) ("Regardless of the language in the contract, "[t]here is no duty to defend or provide coverage where a complaint is merely an attempt to trigger insurance coverage by characterizing allegations of tortious conduct as ‘negligent’ activity.") (citing Tobin v. Aetna Cas. & Sur. Co. , 174 Mich.App. 516, 436 N.W.2d 402, 403 (1988) ).
First,
The insurance coverage "does not apply to ... bodily injury to a farm employee of an insured if it occurs in the course of employment ...."
...
This exclusion applies whether the insured is liable either as an employer or in any other capacity and to any obligation of an insured ...."
and
Second, The exclusion for intentional torts.
(Doc 102-2, pgID 999-1000).
Howe contends that these exclusions do not apply to him because Rogers was Howe's Hens’ employee, not his, and because the term "farm employee of an insured" only applies to Howe's Hens. He argues that term should apply only to "the particular insured who is invoking the coverage for the claim against him, ..." (Doc. 111, pgID 1217).
Howe's argument is contrary to Ohio law. Ohio courts have held that similar language "clearly and unambiguously indicates that parties to an insurance contract intend to broadly preclude coverage for all insured individuals if the conduct by any one insured invokes a preclusion to coverage." United Ohio Ins. Co. v. Metzger , No. 12-98-1, 1999 WL 84201, at *4 (Ohio Ct. App.) (emphasis in original) (collecting cases); Allstate Ins. Co. v. Lobracco , No. 92AP-649, 1992 WL 356270, at *3 (Ohio Ct. App.) ("As previously quoted, Allstate's policy promises to pay damages which an insured person becomes legally obligated to pay because of bodily injury arising from an accident. The term "an insured" means all insureds under the policy.") (emphasis in original).
Thus, contrary to Howe's position, the exclusion of "bodily injury to a farm employee of an insured" excludes coverage for an injury to any of the insureds’ employees.
Howe is a named insured under the Farmowners policy. (Doc. 102-2, pgID 944). Howe's Hens is an additional insured under that policy. (Id. , pgID 949). Therefore, the fact Rogers was not Howe's personal employee has no bearing on Howe's coverage; the exclusion applies nevertheless.
In addition, Rogers’ claim also is excluded by the intentional tort exclusion. The complaint alleges that Howe is liable for a coemployee intentional tort. To impose liability on Howe as a coemployee, Rogers must show:
(1) knowledge by the co-employee of the existence of a dangerous process, procedure, instrumentality, or condition within its business operation; (2) knowledge by the co-employee that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality, or condition, then harm to the employee will be a substantial certainty; and (3) that the co-employee, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task.... This test is conjunctive so that the failure to establish any one of the elements is grounds for summary judgment.
Estate of Mennett v. Stauffer Site Servs., LLC , 2020-Ohio-4355, 2020 WL 5361195, ¶ 24 (quoting Head v. Reilly Painting & Contracting, Inc. , 8th Dist. Cuyahoga, 2015-Ohio-688, 28 N.E.3d 126, ¶ 16 ).
This test requires the employee to act with the same knowledge that injury to the coemployee "will be a substantial certainty" that applies to employer's intentional tort. Thus, Howe can only be liable if he acted intentionally, and his coverage, too, excludes intentional conduct.
The Farmowners policy also excludes any bodily injury to a farm employee covered by worker's compensation law. (Doc. 102-2, pgID 1000). Thus, if the employee claims that his coemployee has been negligent, his or her claim would be limited to workmen's compensation benefits.
Just as for employer intentional torts, a coemployee cannot be liable for an intentional tort unless the coemployee either: 1) actually intended to cause the resulting injury; or 2) believed harm was substantially certain to occur. Head, supra , ¶ 15 ("liability requires knowledge by the co-employee that ... harm to the employee will be a substantial certainty). Tablack v. Bd. of Mahoning Cty. Commr's. , 2008-Ohio-4804, ¶ 53, 2008 WL 4307872 ("In order to establish an intentional tort, [plaintiff] must prove that the act was "committed with the intent to injure another, or committed with the belief that such injury is substantially certain to occur.").
If, as is the case here, the employee alleges a coemployee intentional tort, the Farmowners policy excludes the claim. Thus, as with Howe's Hens, there is no set of facts on which Howe would be entitled to coverage.
B. The Excess/Catastrophe Coverage
The Excess/Catastrophe policy contains separate provisions for excess coverage and for catastrophe coverage. (Doc. 102-3, pgID 1086).
The term, "follow the form coverage," generally refers to excess coverage. It expressly makes excess coverage apply, "in accordance with the applicable Insuring Agreements of the underlying insurance and as fully and completely as though the underlying insurance had been issued to include such limits of liability." (Id. ). Thus, the excess coverage does not apply for the same reasons, discussed above, that the underlying Farmowners policy does not apply.
C. The Catastrophe Coverage
The catastrophe coverage does not contain the same provision incorporating the underlying policy's terms. See (Id. ). It does, however, exclude coverage for accidents that are "expected or intended by an insured." (Id. , pgID 1096). "[I]t is well-established under Ohio law that there is no coverage for substantial certainty intentional torts where an insurance policy excludes coverage for bodily injury ‘expected or intended’ from the standpoint of the insured" Gen. Mills Inc. v. Liberty Ins. Underwriters Inc. , 498 F. Supp. 2d 1088, 1094 (S.D. Ohio 2007) (citing Penn Traffic Co. v. AIU Ins. Co. , 99 Ohio St. 3d 227, 790 N.E.2d 1199, ¶ 31 (Ohio 2003) ); accord Simpson v. Intermet Corp. , 213 F. App'x 390, 395 (6th Cir. 2007) ("there is no coverage for substantial-certainty employer intentional torts where an insurance policy excludes coverage for bodily injury ‘expected or intended’ from the standpoint of the insured." (quoting McGuffin v. Zaremba Contracting , 166 Ohio App. 3d 142, 146–47, 2006-Ohio-1734, 849 N.E.2d 315, ¶ 17 )).
Because only coemployee intentional torts escape the limits of worker's compensation, and the United Ohio policy excludes coverage for intentional torts, there is no set of facts on which Howe can escape the exclusion for liability for torts that he expected or intended.
Rogers alleges that the defendants removed the safety guards on the conveyor belt that injured him. The insureds rely on affidavits of Howe and two witnesses that state Rogers’ accident was not expected or intended. (Doc. 103-1, pgID 1143). "Those affidavits [ ] deny any intent to injure [Rogers]. However, self-congratulatory affidavits, where the defendants deny any intent to injure, standing alone are not sufficient to rebut the presumption in R.C. 2745.01(C)" that a person who disabled machines’ safety guards has committed an intentional tort. Thompson v. Oberlander's Tree & Landscape Ltd. , 2016-Ohio-1147, 62 N.E.3d 630, 638–39, ¶ 43 (internal quotation marks omitted).
--------
3. The Duty to Defend
A. Howe and Howe's Hens
Both Howe and Howe's Hens seek summary judgment that United Ohio has a duty to defend Rogers’ claims. United Ohio seeks summary judgment to the contrary.
The Ohio Supreme Court, in Ward v. United Foundries, Inc. , 2011-Ohio-3176, 129 Ohio St. 3d 292, 951 N.E.2d 770, ¶ 19, summarized the relevant Ohio law on the duty to defend as follows:
We have held that the duty to defend is broader than and distinct from the duty to indemnify.... The duty to defend is determined by the scope of the allegations in the complaint.... If the allegations state a claim that potentially or arguably falls within the liability insurance coverage, then the insurer must defend the insured in the action.... But if all the claims are clearly and indisputably outside the contracted coverage, the insurer need not defend the insured.
Id. (citations omitted).
Because I have determined that the United Ohio policies indisputably exclude the only claims Rogers has asserted against Howe and Howe's Hens, United Ohio owes no duty to defend them in this case.
Howe and Howe's Hens argue that Rogers does not claim that they intended to injure him. The policies, however, tie the duty to defend to the complaint's allegations. That the insureds deny intent to harm Rogers is of no moment. Howe and Howe's Hens argue that Rogers’ claim they committed intentional torts is meritless because they had no such intent. If Rogers ultimately establishes that they lacked intent to cause injury-either actual or implied pursuant to O.R.C. § 2745.01(C) -the policy excludes coverage, and Rogers will be limited to worker's compensation benefits. If a jury finds that they had the requisite intent-either actual or implied-then the "expected or intended" policy exclusion will bar coverage.
Moreover, the Farm Employer Liability coverage provides that United Ohio "will have no duty to defend the insured against any suit seeking damages for bodily injury, personal injury, or property damage to which this insurance does not apply." (Doc. 102-2, pgID 1013). That provision also is incorporated by reference into the excess coverage in the Excess/Catastrophe policy. (Doc. 102-3, pgID 1086).
Here, as in Preferred Risk Ins. Co. v. Gill , 30 Ohio St. 3d 108, 115, 507 N.E.2d 1118, 1124 (1987), since United Ohio "did not agree in the insurance contract to defend [Howe and Howe's Hens] against any claim alleging facts within coverage, even if groundless, false or fraudulent, but only against claims ‘to which this coverage applies,’ [United Ohio] has no duty to defend [them] in the underlying ... claim."
B. BGNR
Rogers’ complaint asserts two claims against BGNR: negligence and premises liability. BGNR seek summary judgment that United Ohio owes it both defense and indemnity for Rogers’ claims.
As to the duty to defend, United Ohio concedes that it has a duty to defend BGNR. (Doc. 112, pgID 1230-31). Thus, there is no dispute for me to resolve.
As to the duty to indemnify BGNR, it would be premature to attempt to resolve whether United Ohio would have a duty to indemnify BGNR for any adverse judgement on Rogers’ claims. "[O]nce a duty to defend is recognized, speculation about the insurer's ultimate obligation to indemnify is premature until facts excluding coverage are revealed during the defense of the litigation." Erie Ins. Exch. v. Colony Dev. Corp. , 136 Ohio App. 3d 406, 413, 736 N.E.2d 941, 946 (1999) ; accord Transamerica Ins. Co. v. S.A.I. Marketing Corp. , 8th Dist. Cuyahoga No. 49256, 1985 WL 6860, *5 (Ohio App.) ; Yatsko v. Graziolli , No. 1:18 CV 1675, 2019 WL 2497794, at *2 (N.D. Ohio) (Polster, J.).
"The duty to indemnify is based upon the facts found by the trier of fact." Acuity v. Reed & Assocs. of TN, LLC , 124 F. Supp. 3d 787, 790 (W.D. Tenn. 2015). United Ohio "only has a potential duty to indemnify at this time, and "[f]ederal courts may not ... give opinions advising what the law would be upon a hypothetical state of facts." Yatsko, supra , 2019 WL 2497794, at *2 (quoting Chafin v. Chafin , 568 U.S. 165, 172, 133 S.Ct. 1017, 185 L.Ed.2d 1 (2013) ).
Accordingly, I defer a decision whether United Ohio is liable to BGNR for indemnification for Rogers’ claims until the nature and scope of BGNR's potential liability is established.
Conclusion
The only claims in this action against Howe and Howe's Hens are for intentional torts. Both the terms of the insurance policies and Ohio law preclude coverage for intentional torts. Therefore, United Ohio does not owe them either a defense or indemnification for Roger's claims.
There is no dispute that United Ohio owes BGNR a defense; I defer ruling as to any potential indemnification. It is therefore
ORDERED THAT:
1. United Ohio's motion for summary judgment against Howe and Howe's Hens (Doc. 101) be, and the same hereby is, granted;
2. Howe, Howe's Hens, and BGNR's motion for summary judgment (Doc. 103) be, and the same hereby is, denied as to Howe and Howe's Hens.
3. As to BGNR, that motion (Doc. 103) be, and the same hereby is, dismissed as moot as to the duty to defend, and, as to the duty to indemnify, be, and hereby is, held in abeyance pending further proceedings.
4. The Clerk shall schedule a status conference in this case forthwith.
So ordered.