COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60510 IVAN SAWCHYN : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION BUCKEYE UNION INSURANCE : COMPANY, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT : OF DECISION : MAY 14, 1992 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CP 183,715 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendants-appellees: IVAN SAWCHYN, PRO SE FORREST NORMAN, ESQ. 14410 Uhlin Drive GALLAGHER, SHARP, FULTON & NORMAN Cleveland, Ohio 44130 Bulkley Building, Seventh Floor 1501 Euclid Avenue Also listed: Cleveland, Ohio 44115 HUNTER S. HAVENS, ESQ. ROBERT C. SEIBEL, ESQ. QUANDT, GIFFELS, BUCK JANIS L. SMALL, ESQ. & RODGERS CO. JACOBSON, MAYNARD, TUSHMAN & KALUR 800 Leader Building 1001 Lakeside Avenue, Suite 1600 Cleveland, Ohio 44114 Cleveland, Ohio 44114-1192 - 2 - J.F. CORRIGAN, P.J., Plaintiff Ivan Sawchyn appeals from the order of the trial court which granted summary judgment to defendants Buckeye Union Ins. Co., Underwriter's Adjusting Co., William R. Ford, Wendell A. Babson, Jerome Kalur, Jacobson, Maynard, Tuschman & Kalur Co., L.P.A., Robert C. Buck, Quandt, Giffels, Buck & Rodgers Co., L.P.A. For the reasons set forth below, we affirm. I. In a previous action, minor Deneta Ruffin by and through her guardian, Charles S. Butler filed case no. 94589, against plaintiff and several others for injuries she sustained from ingesting lead paint at a building located at North Taylor Road, in Cleveland. Defendant Buckeye Union Ins. Co., insurer of the premises, subsequently agreed to provide a defense, and it retained defendant Kalur, of Jacobson, Maynard, Tuschman & Kalur Co., L.P.A. (hereafter referred to as J,M,T & K) to represent plaintiff. Buckeye Union advised plaintiff, however, as follows: "a Complaint has been filed alleging that willfully, wanton intentional acts caused injury thereby creating a question of coverage by virtue of Exclusion Part 4 sec. 1: 'Liability Coverages' 'Bodily Injury - Property Damage [sic] We will pay any amounts up to your Limit of Coverage for which you or anyone else covered under your Liability Coverages becomes liable as a result of bodily injury or property damage that is caused by an accident. Continuous or repeated exposure to the same conditions is considered a single accident. We will not cover bodily injury or property damage that is expected or intended by you or anyone else covered under your Liability Coverages except - 3 - for bodily injury that results from the reasonable use of force to protect people or property,' of said Business Owners Policy BOX1254209. "Therefore, please take notice that the Buckeye Union Insurance Company, as an accommodation to Ivan Sawchyn, and not because of any duty or obligation on its part, will proceed to further investigate said accident, defend, discuss settlement or take any other action at its own expense without waiving its defense of non-liability because of the existence of a question of coverage as cited above." In addition, Buckeye Union retained defendant Robert Buck of Quandt, Giffels, Buck and Rodgers Co., L.P.A., (hereafter referred to a Q,G,B & R) to represent Leon Walker, a co-defendant in the Ruffin action. Defendants Ford and Babson handled the claim administratively on behalf of defendant Underwriters Adjusting Co. Underwriters Adjusting ultimately declined to settle the matter, however, as its independent examination determined that plaintiff was not liable, and Butler's lowest demand on behalf of Ruffin was $750,000.00. Ruffin's action against plaintiff and the others subsequently proceeded to jury trial, and on February 26, 1988, the following judgment was entered: "The jury in this action having, on the 25th day of February, 1988, rendered a verdict in favor of *** Deneta Ruffin, by Charles S. Butler, Guardian, in the sum of $30,000.00 against Ivan Sawchyn, Ivan Sawchyn, Inc., Leon Walker, Pauline Walker, Murray Davis, and Taylor Road Associates, Ltd. for compensatory damages, and having - 4 - also rendered a verdict in the sum of $288,000.00 as punitive damages against Ivan Sawchyn, Inc. and Ivan Sawchyn in the amount of 75% of aid $288,000.00 [i.e., $216,000.00] ****." Defendant Kalur, acting in behalf of J,M,T & K filed a notice of appeal from this judgment. The parties subsequently agreed to settle the matter, however, and this appeal was dismissed. See Ruffin v. Sawchyn (July 13, 1989), Cuyahoga App. Nos. 55322, 55406, 55445, unreported. Thereafter, on January 31, 1990, plaintiff filed this action against Buckeye Union Underwriters Adjusting, Ford, Babson, Kalur, J,M,T & K, Robert Buck, and Q,G,B & R. In his pro se complaint, plaintiff alleged that defendants' actions had caused him to endure an "emotional ordeal," and that defendants: "acted in Bad Faith, Breached a contract with the Plaintiff, denied the plaintiff Due Process of Law, breached and violated opportunities to settle prior to trial, during trial, and after trial, and numerous other shortcomings of their obligation to the plaintiff which will be divulged during the trial, as result of above." Each defendant subsequently moved for summary judgment and, concomitantly, submitted supporting evidentiary material to the court. In response, plaintiff filed a brief in opposition which lacked supporting evidentiary materials, and also filed a motion for summary judgment. Defendants in turn filed briefs in opposition, and on August 3, 1990, plaintiff filed a reply brief, supported by an affidavit in which he averred that Buckeye Union - 5 - refused to settle the Ruffin action prior to trial, that $21,000.00 had been garnished from his bank accounts following the verdict, and that Kalur failed to cross-examineLeon Walker in the Ruffin action. The trial court entered judgment for defendant, and plaintiff now appeals, assigning eight errors for our review. II. Plaintiff's first assignment of error states: "The court erred in concluding Sawchyn's insurance policy did not cover punitive damages. The defendants resorted to an ambiguous paragraph in Part 4 of their policy, copy of which is attached as appellant's exhibit A as their reason for immunizing themselves for liability in punitive damages. Defendants themselves were aware of the lack of legal merit in the allegations in this paragraph which defendant Wendall Babson quoted at the commencement of this case as insurance csrrier's [sic] immunity from responsibility for punitive damages out when the case was concluded hastily Quoted [sic] Eighth Appellate Court case 52399 (Casey v. Calhoun) which opinion was only released 4 months prior to the jury verdict finding Sawchyn liable. (See appellant's affidavit." In a case in which punitive damages are sought, the following must occur: "[It must first be determined] that the defendant has acted with malice before determining the amount of punitive damages due to the plaintiff. Smithhisler v. Dutter (1952), 157 Ohio St. 454, 47 O.O. 334, 105 N.E. 2d 868, paragraph one of the syllabus; Pickle v. Swinehart (1960), 170 Ohio St. 441, 11 O.O. 2d 199, 166 N.E. 2d 227, paragraph two of the syllabus; Detling, supra, at 137, 24 O.O. 3d at 241, 436 N.E. 2d at 210. The - 6 - necessary element of malice may be based upon evidence showing actual malice or malice by implication, i.e., legal malice. This court has recognized that '[o]ne who has committed an act would scarcely admit that he was malicious about it, and so, necessarily, malice can be inferred from conduct.' Davis v. Tunison (1959), 168 Ohio St. 471, 475, 7 O.O. 2d 296, 298, 155 N.E. 2d 904, 907. Our prior cases have identified two general categories of conduct by which malice may be shown, either actual or by inference. As set forth in the syllabus of Preston [v. Murty (1983), 32 Ohio St. 3d 334], punitive damages may be awarded upon proof of conduct '(1) *** characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm.'" Digital & Analog Design Corp. v. North Supply Co. (1989), 44 Ohio St. 3d 36, 43-44. (Emphasis deleted.) Thus, a positive element of conscious wrongdoing is always required. Preston v. Murty (1987), 32 Ohio St. 3d 334, 335. This element has been termed conscious, deliberate or intentional. Id. It requires the party to possess knowledge of the harm that might be caused by his behavior. Id. A second principle inherent in the award of punitive damages is that something more than negligence is always required. Id. In this case, the Buckeye Union insurance policy does not provide indemnification for "'bodily injury' or 'property damage' that is expected or intended by you or anyone else covered under your Liability Coverages ****" (Emphasis added.) Accordingly, it clearly does not provide indemnification for punitive damages. See Wedge Products, Inc. v. Hartford Equity Sales Co. (1987), 31 - 7 - Ohio St. 3d 65, 67. Moreover, public policy prohibits insuring against intentional torts. Id. Plaintiff's first assignment of error lacks merit. III. Plaintiff's second assignment of error states: "The court making reference to the non existence of a written contract between the appellant and defendants Robert Buck and his law firm is a non argument and moot. Appellant's insurance policy which is a contract (see appellant's affidavit) obligated the insurance carrier to provide a defense for appellant and defendant Leon Walker. As such their obligation to present an unbiased defense is self evident." Within this assignment of error, plaintiff seeks a determination that defendants Buck and Q,G,B, & R owed him a duty of care in connection with the conduct of professional duties, and, more specifically, to suppress alleged perjury. This assignment of error lacks support in the record as the unrefuted evidence establishes that these defendants were retained by Buckeye Union to defend Leon Walker in the Ruffin action, and are therefore not liable to plaintiff. Stall v. Kennedy (1987), 38 Ohio App. 3d 102, 104 (assuming that an attorney fraudulently and maliciously allowed his client to give false testimony, plaintiff, who was represented by different counsel, could assert no civil remedy against the attorney, and plaintiff's allegations to this effect therefore do not state a legally cognizable claim). Plaintiff's second assignment of error is overruled. - 8 - IV. Plaintiff's third assignment of error states: "The court again resorted to a non issue as some sort of rationalization by inferring that Sawchyn's previous Common Pleas Case 160927 against co defendant Leon Walker has thru [sic] some sort of mysterious means have some relevance in this matter. It clearly doesn't because no damages are being sought against Leon Walker and even further Walker perpetrated his actions which have rise to Sawchyn's case against him during the trial and not during the time frame of this instant case. THERE IS ABSOLUTELY NO LEGAL KIND OF REASON TO RATIONALIZE THAT THE WALKER CASE HAS ANYTHING WHATEVER TO DO HERE. NO DAMAGES ARE BEING SOUGHT AGAINST WALKER." Within this assignment of error, plaintiff challenges the trial court's determination that because plaintiff allegedly sued Leon Walker for perjury following the Ruffin trial, and Walker prevailed, defendant Buck and Q,G,B & R were entitled to summary judgment here by application of the doctrine of res judicata. We note that no evidence concerning this action was ever presented to the trial court. In light of our disposition of the preceding assignment of error, however, any error in connection with this ruling is not prejudicial. V. Plaintiff's fourth assignment of error states: "In Assignment of error 4 the appellant argument and explanation in assignment 3 will indicate the absurdity of defendants Buck & Quandt, Giffels, et al being absolved from liability in the instanter [sic] as the appellant's compaint [sic] against them is an obvious conspiracy or pre determined deal with defendant Kalur that any kind of - 9 - allegation to make Walker loook [sic] good even at appellant's expense which is exactly what was done here. Defendant Kalur is liable for malpractice for violation of the ABA Disciplinary Rule 7-101 which reads in part 'A LAWYER SHALL REPRESENT A CLIENT ZEALOUSLY' and ABA Disciplinary Rule 7-102(6) says in part 'A LAWYER SHALL NOT PARTICIPATE IN THE CREATION OR PRESERVATION OF EVIDENCE WHEN HE KNOWS OR IT IS OBVIOUS THAT THE EVIDENCE IS FALSE.' "Adherence of attorneys to the ABA Disciplinary rules is MANDATORY and NOT JUST ASPIRATIONAL." Plaintiff next argues that defendant Kalur is liable to him for malpractice because he did not cross-examine Walker regarding Walker's allegedly perjurious statement that defendant, not Walker, owned the North Taylor Building at the time Ruffin sustained her injury. In support of his motion for summary judgment, defendant Kalur submitted evidentiary material which indicted that Walker's trial testimony as to this matter was correct and not perjurious. Plaintiff presented no evidence to the contrary and therefore failed to demonstrate the existence of a genuine issue of material fact. Civ. R. 56(C). Plaintiff's fourth assignment of error lacks merit. VI. Plaintiff's fifth assignment of error states: "The court erred in even considering ORC 2309.01(B)(2) which defendants Buckeye, Un Adj. [sic] Ford & Babson's counsel used as an argument. This ORC has been repealed." - 10 - To date, R.C. 2309.01 has not been repealed. This claim therefore lacks merit and is overruled. VII. Plaintiff's sixth assignment of error states: "The court erred in ignoring the appellant's revelation that the original contract and policy tendered to him has significantly different wording from what counsel for Buckeye, Un Adj, [sic] Ford & Babson introduced. The difference in this wording was very releavant [sic] and the court's ignorning [sic] the appellant's revelation of such leaves the appellant quite perplexed as it seems that the court is being less than impartial." In support of its motion for summary judgment defendant Buckeye Union submitted its contract of insurance with plaintiff. Plaintiff, however, at no time submitted any evidence of any other contract, and no evidence to indicate that this contract was not the true contract in effect between the parties. Accordingly, from the present state of the record, this claim lacks merit and is overruled. VIII. Plaintiff's seventh assignment of error states: "The court's again ignoring a very relevant disclosure by the appellant that the defendants made a literal admission that their policy DID NOT IMMUNIZE THEM FROM ACCEPTING LIABILITY FOR PUNITIVE DAMAGES when after the conclusion of the trial they hastily resorted to making reference to a case decided by the Eighth Appellate Court on Oct. 29, 1987 which was less than 4 months from the end of the trial to absolve themselves from liability for punitive damages and the court seriously erred in - 11 - ignorning [sic] Appellant's introducing an unreported case by the Fifth Appellate Court known as No. CA 6453, Empire Fire & Marine vs Parkview Manor whereby when punitive damages liability is not expressly provided for elimination of liability by an insurance carrier, said carrier shall be liable. Appellant attaches the Fifth Appellant's [sic] Court opinion in full and also see his affidavit. It is also further evident that defendant Kalur knew that the carrier was liable for punitive damages but not only concealed that from the appellant but went on to support the defendant insurance carrier and it's workers Ford & Babson." As was fully set forth in our discussion concerning plaintiff's first assignment of error, the Buckeye Union insurance policy does not provide indemnification for punitive damages, and indeed such indemnification would contravene public policy. This holding is unaffected by the fact that Buckeye Union ultimately reached a settlement in the Ruffin action. In addition, because our holding is based upon Supreme Court precedent, it is unaffected by the fact that a lower court reached a contrary decision. Plaintiff's seventh assignment of error is overruled. IX. Plaintiff's eighth assignment of error states: "The plaintiff in his complaint demanded a trial by jury as was his right and the court circumvented that right by issuing this summary judgement [sic]. This claim lacks merit pursuant to the Supreme Court's pronouncements in Houk v. Ross (1973), 34 Ohio St. 2d 77, 83-84. Judgment affirmed. - 12 - It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, J., and *JOHN V. CORRIGAN, CONCUR. JOHN F. CORRIGAN PRESIDING JUDGE (*Judge John V. Corrigan, Retired, Eighth District Court of Appeals, Sitting by Assignment.) N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .