Allstate Ins. v. Cole, 717 N.E.2d 816 (Ohio Ct. App. 1998). · Go Syfert
Allstate Ins. v. Cole, 717 N.E.2d 816 (Ohio Ct. App. 1998). Cases Citing This Book View Copy Cite
16 citation events (15 in the last 25 years) across 1 distinct court.
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discussed Cited as authority (rule) Tvergyak v. Rak
Ohio Ct. App. · 2025 · confidence medium
Co. v. Cole, 129 Ohio App.3d 334, 336 (9th Dist. 1998). {¶15} “The ‘submission of a guilty plea to a criminal charge, for a crime of which intent is an essential element, is strong enough proof so as to eliminate all doubt as to whether an insured’s conduct would be deemed intentional for purposes of an intentional act exclusion.’” Id. at ¶ 16, quoting Motorists Mut.
discussed Cited "see" State Farm Fire & Casualty Co. v. Condon (2×)
Ohio Ct. App. · 2005 · signal: see · confidence high
See Allstate Ins. v. Cole (1998), 129 Ohio App.3d 334, 336 , 717 N.E.2d 816 ("a criminal conviction, in and of itself, may conclusively establish intent for purposes of applying an intentional acts exclusion,” and "a conviction involving the element of recklessness is sufficient to trigger an intentional acts exclusion, regardless of the underlying facts”).
Retrieving the full opinion text from the archive…
ALLSTATE INSURANCE COMPANY, Appellee,
v.
COLE Et Al.; Robinson, Appellant
No. 18733..
Ohio Court of Appeals.
Aug 12, 1998.
717 N.E.2d 816
Frank G. Mazgaj and Robert L. Tucker, for appellee Allstate Insurance Company. David A. Forrest and Ronald P. Tomallo, Jr., for appellant Lundy Robinson, Jr.
Slaby, Dickinson, Mahoney, Ninth.
Cited by 12 opinions  |  Published
Edward J. Mahoney, Judge.

Defendant-appellant Lundy Robinson, Jr. appeals a grant of summary judgment in favor of plaintiff-appellee Allstate Insurance Company (“Allstate”). We affirm in part and reverse in part.

I

On October 16, 1993, co-defendant Jeffrey Cole took a handgun from a cabinet in his parents’ house. Jeffrey fired the handgun into the air two or three times behind his parents’ house before joining a friend on the street. Jeffrey walked up the street with the friend and fired the gun twice more into the air. Jeffrey then showed the gun to some friends on a corner. Robinson’s son was one of these friends. While Jeffrey was playing with the gun and showing it to his friends, it discharged, killing Robinson’s son. Although Jeffrey claimed that the shooting was an accident, he was eventually convicted of involuntary manslaughter based on a violation of R.C. 2903.13(B).

[*336] On October 16,1995, Robinson filed a wrongful death claim against Jeffrey and his parents, James and Edna, on behalf of his deceased son. At that time, the Coles had a homeowner’s insurance policy with Allstate. No one disputes that Jeffrey was an insured under this policy.

On December 19, 1995, Allstate filed a declaratory judgment action against the Coles, seeking a declaration that it had no duty to defend or indemnify the Coles. Robinson joined the declaratory judgment action.

On April 19, 1996, Allstate moved for summary judgment, relying on an intentional-acts exclusion contained in the Coles’ policy, which excluded from coverage “any bodily injury or property damage intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, any insured person.” (Emphasis sic.) On July 31, 1997, the trial court granted Allstate summary judgment based on the intentional-acts exclusion. Referring to the criminal conviction, the trial court found that “it has been conclusively determined that [Jeffrey] Cole perversely disregarded a known risk that his conduct was likely to cause a certain result, * * * in so acting, he should have reasonably expected injury to result.” Robinson appeals.

II

Robinson’s sole assignment of error states:

“The trial court committed prejudicial error when it granted plaintiff-appellee’s motion for summary judgment by finding that a criminal conviction of involuntary manslaughter conclusively determined, in and of itself, that an insured disregarded a known risk that his conduct was likely to cause a certain result and thereby triggered an exclusion clause contained in a homeowners’ policy of insurance.”

Insofar as it concerns Jeffrey Cole, this assignment of error is not well taken. First, this court has repeatedly held that a criminal conviction, in and of itself, may conclusively establish intent for purposes of applying an intentional-acts exclusion. Allstate Ins. Co. v. Hevitan (Jan. 24, 1996), Medina App. No. 2443-M, unreported, 1996 WL 27927; Nationwide Mut. Fire Ins. Co. v. Carreras (Nov. 15, 1995), Lorain App. No. 95CA006031, unreported, 1995 WL 678556; Gunter v. Meacham (Sept. 20, 1995), Summit App. No. 17125, unreported, 1995 WL 553190. See, also, W. Res. Mut. Ins. Co. v. Campbell (1996), 111 Ohio App.3d 537, 542, 545, 676 N.E.2d 919, 922-923, 924-925 (Quillin, P.J., concurring). Second, a conviction involving the element of recklessness is sufficient to trigger an intentional-acts exclusion, regardless of the underlying facts. Steinke v. Allstate Ins. Co. (1993), 86 Ohio App.3d 798, 803-804, 621 N.E.2d 1275, 1278-1279 (convicted of disorderly conduct in violation of R.C. 2917.11); Hevitan, supra (convicted of assault in violation of R.C. 2903.13[B]).

[*337] In this case, Jeffrey was convicted of involuntary manslaughter based on a violation of R.C. 2903.13(B). Recklessness is an element of R.C. 2903.13(B). Therefore, the applicability of the intentional-acts exclusion has been conclusively established by Jeffrey’s conviction of a reckless act, regardless of the underlying facts. Hevitan, supra.

However, Jeffrey’s conviction cannot be given conclusive effect against his parents, James and Edna.

Count III of Robinson’s complaint is against James and Edna Cole, as the parents of Jeffrey, for negligently permitting Jeffrey to have access to the gun and for failing to supervise or instruct him in its use and safety. While collateral estoppel may apply to Jeffrey in this situation, it cannot be applied to James and Edna. Collateral estoppel requires some mutuality of parties to be applicable. See Phillips v. Rayburn (1996), 113 Ohio App.3d 374, 379-381, 680 N.E.2d 1279, 1282-1284. Neither James and Edna, nor Allstate Insurance, was a party to the underlying criminal action. Therefore, there is no mutuality of parties, and James and Edna Cole cannot be estopped from relitigating the issue of intent.

Concededly, a trier of fact may decide the case in favor of James and Edna upon the issues of negligence and/or proximate cause. However, that does not mean they should be denied a defense. Allstate can probably take its reservation of rights and may never pay any verdict, but it should provide the Coles with a defense. See Preferred Mut. Ins. Co. v. Thompson (1986), 23 Ohio St.3d 78, 82, 23 OBR 208, 211-212, 491 N.E.2d 688, 691-692.

The judgment is affirmed in relation to Jeffrey, but is reversed as to James and Edna.

Judgment affirmed in part, reversed in part and cause remanded.

Slaby, P.J., and Dickinson, J., concur. Edward J. Mahoney, J., retired, of the Ninth Appellate District, sitting by assignment.