COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 73230 AND 73242 AETNA CASUALTY & SURETY CO., : ET AL. : : JOURNAL ENTRY PLAINTIFFS-APPELLANTS : v. : AND : DENNIS CIGANY, A MINOR, : OPINION ET AL. : : DEFENDANTS/THIRD-PARTY : PLAINTIFFS-APPELLANTS : : v. : : METROPOLITAN PROPERTY AND : CASUALTY COMPANY : THIRD-PARTY : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 24, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-303208. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Aetna Casualty and D. John Travis, Esq. Surety Co.; Parma Board Gary L. Nicholson, Esq. of Education; and Gallagher, Sharp, Fulton & Norman Metropolitan Property & 7th Floor, Bulkley Building Casualty Insurance Company: 1501 Euclid Avenue Cleveland, OH 44115 -2- Gary S. Greenlee, Esq. David L. Lester, Esq. Jay W. Pearlman, Esq. Richard D. Sweebe, Esq. Ulmer & Berne, L.L.P. 900 Bond Court Building 1300 East Ninth Street Cleveland, OH 44114-1583 For Dennis Cigany: Jaye M. Schlachet, Esq. Jerome Emoff, Esq. 620 Terminal Tower 50 Public Square Cleveland, OH 44113 -3- TIMOTHY E. McMONAGLE, J.: In this consolidated appeal, defendant/third-party plaintiff- appellant, Dennis Cigany ( Cigany ), and plaintiffs-appellants, Parma City School District ( School District ) and its property insurer, Aetna Casualty & Surety Company ( Aetna ), appeal the decision of the Cuyahoga County Common Pleas Court that granted summary judgment in favor of third-party defendant-appellee, Metropolitan Property & Casualty Company ( Metropolitan ). For the reasons that follow, we affirm. The record reflects that, on February 17, 1994, Cigany and two of his friends were walking through the first floor hallway of Normandy High School where they were students. Cigany had a cigarette lighter in his possession, which he found in the school earlier that day. Cigany used the lighter to set fire to a stuffed teddy bear located in a storage area at the school. As a result of burning the teddy bear, the fire spread and caused in excess of $500,000 in property damage to the school. The School District, along with Aetna, instituted suit against Cigany, and his parents, Dennis C. and Patricia A. Cigany, seeking recovery for property damage caused by the fire. The complaint alleged, inter alia, that the property damage sustained by the School District was due to Cigany's negligence. Cigany and his parents brought a third-party complaint against Metropolitan, their insurer, contending that it had a duty to defend and indemnify Cigany. -4- In the competing motions for summary judgment that followed, Metrop Cigany because there was no occurrence, as that term is defined p the respective policies were applicable. Cigany and paolitan argued that it had no duty to defend or indemnifyin the insuran constituted an accident and, therefore, an occurrence because Cigany intended only to set fire to the bear and not the school. The trial court ultimately granted Metropolitan's motion.1 The School District and Aetna appeal and assign the following errors for our review: I. THE TRIAL COURT ERRED IN OVERRULING DEFENDANTS-THIRD PARTY PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT. II. THE TRIAL COURT ERRED IN GRANTING THIRD PARTY AND INTERVENING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Cigany asserts the following assignments of error: I. THE TRIAL COURT ERRED IN GRANTING METROPOLITAN SUMMARY JUDGMENT AND THEREBY 1Shortly thereafter, Cigany and his parents, along with the School District and Aetna, entered into a settlement agreement therein agreeing that the negligence of Cigany caused property damage totaling $529,736.95. The claims against Cigany's parents were settled and dismissed with prejudice in exchange for their payment of $6,000 and with the understanding that Cigany and his parents were to perfect, and with due diligence pursue and exhaust, all rights of appeal as to the granting of Metropolitan's motion for summary judgment. Appellants now attempt to assert in their brief that this judgment in some way supports that Cigany's actions were negligent rather than intentional. The record reflects that Metropolitan did not sign this agreement. The consent judgment merely embodies the settlement agreement entered into between appellants solely for their own benefit. As such, its existence is not a relevant factor in determining whether the damage caused was intentional or negligent. -5- DETERMINING THAT METROPOLITAN HAD NO DUTY TO DEFEND NOR INDEMNIFY WHERE THE RESULTANT PROPERTY DAMAGE WAS NOT EXPECTED NOR INTENDED, AND ACCORDINGLY, CIGANY WAS ENTITLED TO HIS OWN SUMMARY JUDGMENT AND METROPOLITAN SHOULD HAVE BEEN HELD RESPONSIBLE UNDER THE INSURANCE POLICIES TO DEFEND AND INDEMNIFY. II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO METROPOLITAN WHERE THERE WERE GENUINE ISSUES AS TO MATERIAL FACT AND METROPOLITAN DID NOT SHOW THAT IT WAS ENTITLED TO JUDGMENT AS A MATER OF LAW. Appellants' assignments of error are all related and challenge the propriety of the trial court's grant of summary judgment to Metropolitan. As such, they will be discussed together. Succinctly, appellants contend that Cigany's actions constituted an occurrence because Cigany, while intending to burn the teddy bear, did not intend to cause the damage that resulted to the school. Metropolitan, on the other hand, maintains that Cigany's lack of intent to cause the extent of harm is immaterial because he intended to cause some harm and, therefore, there was no occurrence sufficient to trigger coverage. Alternatively, Metropolitan contends that even if we were to find that Cigany's actions constituted an occurrence, the exclusions in both policies do not afford coverage. In reviewing a motion for summary judgment, an appellate court conducts a denovo review of the trial court's decision. A court reviewing the granting of a summary judgment must follow the standards set forth in Civ.R. 56(C) *** . Aglinsky v. Cleveland Builders Supply Co. (1990), 68 Ohio App.3d 810, 814. Civ.R. 56(C) -6- provides that before summary judgment may be granted, it must be determined that: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from such evidence that reasonable minds can come to but one conclusion and, reviewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to the party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. It is axiomatic that an insurance company is under no obligation to its insured, or to others harmed by the actions of an insured, unless the conduct alleged of the insured falls within the coverage of the policy. Coverage is provided if the conduct falls within the scope of coverage defined in the policy. Gearing v. Nationwide Ins. Co. (1996), 76 Ohio St.3d 34, 36. The homeowner's policy issued by Metropolitan to Cigany's parents provides coverage for property damage due to an occurrence. The policy defines an occurrence as an accident *** resulting in *** property damage during the term of the policy. 2 The excess liability policy provides coverage for all sums in excess of the retained limit for damages to others caused by an occurrence for which the 2This policy, however, excludes coverage for property damage reasonably expected or intended by the insured or that which is the result of the insured's intentional and criminal acts. -7- law holds an insured responsible and to which this policy applies. 3 Metropolitan urges this court to find that there was no occurrence within the meaning of the policies because Cigany's actions were not accidental. Although not specifically defined in the policy, courts in such cases have construed accidental to mean an unexpected happening without intention or design. Munchick v. Fidelity & Cas. Co. (1965), 2 Ohio St.2d 303, 306; Rothman v. Metro Cas. Ins. Co. (1938), 184 Ohio St. 241, 247. Metropolitan maintains that Cigany's intent to cause property damage to the bear is sufficient to demonstrate that he intended to cause harm and therefore that his actions were not accidental. Appellants, on the other hand, relying on Physicians Ins. Co. of Ohio v. Swanson (1991), 58 Ohio St.3d 189, argue that Cigany must not only have intended to set fire to the bear, but that he intended or expected to cause harm to the school. They argue that since Cigany had no intention to cause damage to the school, his actions were accidental for which the Metropolitan policy affords coverage. We disagree. The Swansoncourt did not state that the insured had to intend the extentof injury, only that the insured had to intend or expect to cause an injury. In this case, Metropolitan appended to its 3The relevant exclusion under this policy excludes coverage for any property damage resulting from any intentional act by an insured ***. Thus, even if we were decide this case on the applicability of the respective policy exclusions, there would be no coverage under the excess policy because, by the policy's very terms, coverage is not available for intentional acts. -8- motion for summary judgment Cigany's deposition testimony wherein he testified that he had intended to set fire to the bear and that he thought the foot [of the bear] would probably catch on fire and the bear and that's all. Thus, the record supports that Cigany intended to cause some harm. That he did not intend to cause the extent of the harm is not relevant nor is such a conclusion warranted under Swanson in order to trigger coverage. See Grandjean v. James (July 26, 1996), Montgomery App. No. 15708, unreported at 4. Having satisfied its burden of demonstrating that Cigany intended to cause harm and, therefore, that his actions were not accidental, there was no occurrence as defined in the policy sufficient to trigger coverage. We are mindful that the Swanson court premised its decision on an express exclusion contained in the policies at issue in that case rather than whether coverage was indicated in the first instance, as we have in the case sub judice. Nonetheless, the Swanson court chose to proceed in that manner after acknowledging that the effect would be the same whether analyzed by way of policy definition or an express exclusion. Swanson, 58 Ohio St.3d at 191; see, also, Willis v. Campbell (Feb. 6, 1998), Clark App. No. 97-CA-57, unreported at 9. Thus, we find the reasoning set forth in Swanson to be applicable in deciding the instant case. Consequently,no genuine issues of material fact remain to be decided and, therefore, the trial court did not err in granting Metropolitan judgment in its favor as a matter of law. -9- Accordingly, appellants' assignments of error are not well taken and are hereby overruled. Judgment affirmed. It is ordered that appellee recover of appellants 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. TIMOTHY E. McMONAGLE JUDGE O'DONNELL, J., CONCURS; and NAHRA, P.J., DISSENTS (WITH SEPARATE DISSENTING OPINION). 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 73230 & 73242 AETNA CASUALTY & SURETY CO., : -1- ET AL., : : Plaintiffs-Appellants : : vs. : : DENNIS CIGANY, A MINOR, : ET AL., : : D I S S E N T I N G Defendants/Third-Party : Plaintiffs-Appellants : O P I N I O N : vs. : : METROPOLITAN PROPERTY AND : CASUALTY COMPANY, : : Third-Party : Defendant-Appellee : DATE: SEPTEMBER 24, 1998 NAHRA, P.J., DISSENTING: I respectfully dissent from the majority in this case because summary judgment in favor of Metropolitan was improperly granted when the syllabus of Physicians Ins. Co. v. Swanson (1991), 58 Ohio St.3d 189, is applied to the facts of this case. In Swanson, supra, the insured was not excluded from coverage where he shot a BB gun at another person and the victim lost his right eye. The Supreme Court determined that although an intentional act was committed, in order to exclude coverage the insurer was required to show that the insured intended or expected to cause injury. Id.at 189, syllabus. In this case, the majority opinion states at page 8 that The Swanson court did not state that the insured had to intend the extent of injury, only that the insured had to intend or expect to cause an injury. (Emphasis sic.) The Swanson syllabus reads: -2- In order to avoid coverage on the basis of an exclusion for expected or intentional injuries, the insurer must demonstrate that the injury itself was expected or intended. (Emphasis added.) Clearly, the Swanson court mandated that in order to exclude coverage for expected or intentional injuries, the insurer must show that the injury itself caused by the insured was intended, not merely an injury. In determining why an insurer must demonstrate that the injury itself was intended by the insured in order to exclude such from coverage, the court in Swanson explained its holding in Preferred Risk Ins. Co. v. Gill (1987), 30 Ohio St.3d 108. 58 Ohio St.3d at 191. In Gill, the Ohio Supreme Court held that an insured's murder of an eleven-year-old girl was an intentional act excluded from insurance coverage. In explaining the import of Gill, the Supreme Court stated: [O]ur decision was based on a finding that the insured intended to cause an injury, i.e., the death of an eleven-year old girl. While Gill used language regarding the intentional act or conduct of the insured, Gill actually stands for the proposition that it is the resultant injurywhich must be intended for the exclusion to apply to deny coverage. 58 Ohio St. 3d at 191. (Emphasis added.) The specific holding in Swanson reads: In the case at bar, the trial court found that while the insured intentionallyfired a BB gun in the direction of the injured person, the injury itself was neither intended nor substantially certain to occur. Rather, the finder of fact conclusively found that the injury was accidental. Based on our interpretation of Gill, and the persuasive reasoning of the courts in other jurisdictions, we find the court of appeals erred by -3- requiring that only the act of the insured need be shown to have been intentional. Therefore, we hold that in order to avoid coverage on the basis of an exclusion for expected or intentional injuries, the insurer must demonstrate that the injury itself was expected or intended. It is not sufficient to show merely that the act was intentional. 58 Ohio St.3d at 193. (Emphasis added.) The necessity of demonstrating the specific intent to cause the actual injury is also evidenced by reliance in Swanson on cases from other jurisdictions. In review of this persuasive authority, the Ohio Supreme Court noted: In holding that an intentional injury exclusion did not preclude coverage, the court stated that [t]he preponderance of the evidence in this case indicates that while the discharge of the firearm was intentional the fatal wounding *** was not intentional but accidental. [Quoting State Farm Mut. Auto. Ins. Co. v. Worthington (C.A.8, 1968), 405 F.2d 683.] *** While interpreting an exclusion for property damage caused intentionally by or at the direction of the insured, the Supreme Court of Pennsylvania stated that the vast majority of courts which have considered such a provision have reached the conclusion that before the insurer may disclaim liability, it must be shown that the insured intended by his act to produce the damage which did in fact occur. Annot., 2 A.L.R. 3d 1238 (1965). We subscribe to such a view. There is a very real distinction between intending an act and intending a result and the policy exclusion addresses itself quite clearly to the latter. Eisenman v. Hornberger (1970), 438 Pa. 46, 49, 264 A.2d 673,674. *** More recently, a federal court of appeals interpreting Florida law has stated that *** we believe the standard enunciated by the lower courts of Florida adheres to the majority rule with respect to `intentional' injury. Under the majority rule the exclusion applies if the insured intended to do the particular act, and intended to do some harm ***. *** On -4- the other hand, an `intentional injury' exclusion will not apply if the insured intentionally does an act, but has no intent to commit harm, even if the act involves the foreseeable consequences of great harm or even amounts to gross or culpable negligence. Allstate Ins. Co. v. Steinemer (C.A. 11, 1984), 723 F.2d 873, 875. Swanson, 58 Ohio St.3d at 192. (Emphasis added.) Although the scenarios in the cases surveyed in Swanson concerned the discharge of weapons, the principle is clear: in order to deny coverage under an intentional or expected act exclusion, an insurer must demonstrate that the actual harm or injury caused was intended by the insured. In this case, Metropolitan presented evidence only that Cigany set fire to a stuffed animal, not that he intended to set fire to the building. Unlike the majority, I believe this distinction is critical to determining whether Cigany was insured. Cf. Swanson, supra(Intent between assault and battery distinguished by finding that physical injury was accidental). A distinction in intent, even where damage is caused by a spreading fire, has been recognized by other jurisdictions. See, e.g., Prosser v. Lueck (1995), 196 Wis.2d 780, 539 N.W.2d 466; Miller v. Fidelity-Phoenix Ins. Co. (1977), 268 S.C. 72, 231 S.E.2d 701. Because there is a distinction in the injury Cigany intended in this case, Metropolitan must demonstrate that Cigany had an intent to cause damage to the school building in order to exclude Cigany's actions from coverage. For the foregoing reasons, I would reverse the grant of .