In a case of first impression, the Ohio Supreme Court ruled that an assault and battery exclusion in the CGL policy was valid in precluding coverage in a situation where a resident of the insured’s care facility assaulted the plaintiff. The resident was acting under a mental infirmity and, therefore, could not have been convicted of criminal assault.
In Krewina v. United Specialty Ins. Co., 2023 Ohio 2343, 2023 221 N.E.3d 819, (Ohio, July 12, 2023), a resident in a care facility picked up a knife and stabbed the claimant. Claimant brought suit alleging assault and battery, notwithstanding the fact that the resident lacked the requisite mental capacity to be convicted of a crime. In enforcing the assault and battery exclusion, the Court noted that the exclusion was not dependent upon the insured’s state of mind, and that it broadly excluded coverage for any suit arising out of an assault. The Court distinguished a prior ruling which had found that a “expected or intended” exclusion was different because the mental infirmity prevented the assailant from forming an “intent” or “expectation” to inflict harm.