COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73165 ANNETTE NEGRON : : ACCELERATED DOCKET Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION ODEON CONCERT CLUB, INC., et al: : PER CURIAM Defendants-appellants: : : DATE OF ANNOUNCEMENT OF DECISION : MAY 7, 1998 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 297,939 JUDGMENT : REVERSED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: MURRAY RICHELSON Attorney at Law David A. Katz Co., L.P.A. 842 Terminal Tower Cleveland, Ohio 44113 For defendant-appellant CLIFFORD C. MASCH Alliance Insurance Attorney at Law Group : Reminger & Reminger 113 St. Clair Building Cleveland, Ohio 44114 PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the -2- Cuyahoga County Court of Common Pleas, the briefs and the oral arguments of counsel. In this subrogation action, new-party defendant-appellant Alliance Insurance Group appeals from the trial court order that both denied appellant's motion for summary judgment and granted plaintiff-appellee Annette Negron's motion for summary judgment. Appellant argues its contract of insurance with defendant Odeon Concert Club, Inc. ( Odeon ) excluded coverage for the injuries appellee sustained while she was a patron at Odeon. This court finds appellant's argument persuasive and therefore reverses the trial court's decision. According to the undisputed facts, appellee attended a New Year's Eve party at Odeon. The establishment was so crowded appellee was unable to move away when a fight began near her. As a result of her proximity to the brawlers, appellee was violently thrown to the ground and trampled. Appellee thereafter instituted a negligence action against Odeon alleging her injuries were caused by overcrowding and failure to have proper security. Odeon failed to defend in the action; thus, appellee obtained a default judgment against Odeon in the amount of $30,000.00. Subsequently, appellee filed a supplemental petition against appellant, the liability insurer for Odeon, pursuant to R.C. 3929.06. See, generally, Bennett v. Swift & Co. (1959), 170 Ohio St. 168. Appellant answered the petition with a denial of liability on appellee's claim, stating the damages sought to be imposed by -3- appellee were excluded from coverage pursuant to its insurance policy with Odeon. The parties filed cross-motions for summary judgment. Appellee argued the relevant policy exclusions both were ambiguous and precluded coverage for negligent acts. Appellant argued the policy exclusion applied to appellee's claim against it. Ultimately, the trial court issued an order granting appel- lee's motion for summary judgment and denying appellant's motion for summary judgment. The trial court found that coverage exists because [Odeon] negligently allowed the premises to be overcrowded which prevented [appellee] from removing herself from the area of potential harm. The trial court later awarded appellee $30,000 in damages. Appellant argues in its assignment of error that the policy's assault and battery exclusion clearly negated coverage for appellee's claims against Odeon; thus, the trial court erred in denying its motion for summary judgment. This court agrees. The Commercial General Liability Coverage Part of appel- lant's insurance policy issued to Odeon originally stated in pertinent part as follows: SECTION I-COVERAGES COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY * * * 1. Insuring Agreement. a. We will pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury or prop- -4- erty damage , caused by an occurrence , to which this insurance applies. *** * * * 2. Exclusions. This insurance does not apply to: a. Bodily injury or property damage expected or intended from the standpoint of the insured. This exclusion does not apply to bodily injury resulting from the use of reasonable force to protect persons or prop- erty. (Emphasis added.) However, that portion of the policy specifically was amended by the following endorsement, added to the policy on September 1, 1991: ASSAULT & BATTERY EXCLUSION This endorsement forms a part of the policy to which it is attached, effective on the incep- tion date of the policy unless otherwise stated herein. This endorsement amends and forms a part of the following specific cover- age: In consideration of the premium charged for this insurance, the policy to which this endorsement is attached is amended and modi- fied as follows: 1. Claimsor suits to recover damages for bodily injury or property damage arising from actual or alleged assault and/or battery , as herein defined, are excluded from coverage, and the Company is under no duty to defend or indemnify an insured regardless of the degree of culpability or intent and without regard to: a. Whether the acts are alleged to be by or at the instruction or at the direction of the insured, his offi- cers, employees, agents or servants; -5- or by any other person lawfully or otherwise on, at or near premises owned or occupied by the insured or by any other person; b. The alleged failure of the insured, or his officers, employees, agents or servants, in the hiring, supervi- sion, retention or control of any person, whether or not an officer, employee, agent or servant of the insured; c. The alleged failure of the insured or his officers, employees, agents or servants to attempt to prevent, bar or halt any such conduct. * * * 3. The following definitions apply: a. Assault means the apprehension of harmful or offensive contact between or among two or more persons by threats through words or deeds. b. Battery means the harmful or offensive contact between or among two or more persons. (Emphasis added.) A review of the foregoing language reveals it neither is ambiguous nor permits coverage for the insured's negligent acts. Tomlinson v. Skolnick (1989), 44 Ohio St.3d 11 at 12; Sphere Drake Ins. Co. v. Ross (1992), 80 Ohio App.3d 506; The Rathskellar v. Utica First Ins. Co. (Feb. 9, 1996), Montgomery App. No. 15407, unreported; cf., Physicians Ins. Co. of Ohio v. Swanson (1991), 58 Ohio St.3d 189; Erie Ins. Co. v. Stalder (1997), 114 Ohio App.3d 1. In Physician's Ins. Co. Of Ohio v. Swanson, supra, which was decided on April 3, 1991, the supreme court held that despite an exclusion for intentional injuries, insurance companies could not -6- escape responsibility for the acts of their insureds unless the insurer demonstrated that the particular injury which occurred itselfwas expected or intended. This holding was premised upon policy language similar to that which was originally set forth in the general liability portion of appellee's policy with Odeon. Clearly, the supreme court found such language to be sufficiently ambiguous to justify construing it against the insurers. In order to clarify the limits of the exclusion, therefore, and in response to the supreme court's opinion, appellant issued its endorsement to the policy, effective on September 1, 1991. The plain language of the endorsement to the policy excludes coverage for injuries such as those sustained by appellee because the actor's intent is irrelevant; what was excluded was the type of injuryitself. In this manner, appellee removed the ambiguity and shielded itself from the obligation to defend which had been found by the supreme court in Swanson. Appellee alleged in her complaint against the insured that she had been thrown to the ground and trampled ; this injury was specifically covered by the assault and battery exclusion because appellee suffered a harmful and offensive contact. Thus, appellee could not prevail on her claim against appellant. Century Surety Co. v. The Bucket Shop (Sep. 25, 1996), Summit App. No. 17784, unreported; cf., Physicians Ins. Co. of Ohio v. Swanson, supra. Therefore, the trial court erred in denying appellant's motion for summary judgment. Dick v. The Stein & Pitcher (May 16, 1997), -7- Lucas App. No. L-96-303, unreported; Vasquez v. Campos (Oct. 25, 1996), Lucas App. No. L-96-064, unreported; cf., Lock v. Oney's Pub (Nov. 8, 1996), Montgomery App. No. 15577, unreported. Appellant's assignment of error is, accordingly, sustained. The judgment of the trial court is reversed and judgment is rendered for appellant on appellee's claim against it. -8- This cause is reversed. It is ordered that appellant recover of appellee its 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 Cuyahoga County 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. __________________________________ ANN DYKE, PRESIDING JUDGE __________________________________ TERRENCE O'DONNELL, JUDGE __________________________________ KENNETH A. ROCCO, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .