Hydrotech, Inc. had secured a business liability policy from American Employers (AEIC) which provided coverage for bodily injuries allegedly caused by negligence. The evidence showed that Clair Jones and Louis Wetherill, who were officers of the corporation, had taken two other employees and Jack Droder to dinner and drinks at the Kenwood Country Club in order to become better acquainted with Droder, a new employee. As the group left the club, Jones and Wetherill started fighting. They were separated by their employees and a waiter, John Smith, who allegedly was injured when he assisted in breaking up the fight.
Smith sued Jones and Wetherill, and they filed this action for declaratory judgment to determine whether AEIC provided coverage for bodily injuries allegedly caused by their "negligence" in fighting at the club. AEIC filed a third-party action against American States and Cincinnati Insurance Company (which had issued homeowner's policies to Jones and Wetherill) to determine which company was required to defend Wetherill and Jones. The trial court granted summary judgment in favor of Jones, American States, Wetherill and Cincinnati, and denied summary judgment to AEIC. This appeal followed.
AEIC contended that the fighting was not related to the duties of Jones and Wetherill as officers of the insured corporation; the officers argued that they were covered since there was a relation between their actions; that the fight was related to the business dinner; and AEIC was obligated to defend them. They stated that AEIC did not prove that the fight stemmed from personal comments rather than comments about the business.
On appeal, the court noted that, in general, courts have ruled that fights between employees are presumed to be outside the scope of employment, and that the party, or parties, claiming otherwise have the burden of proof. The court found that Jones and Wetherill had failed to prove that the fight was within the scope of employment.
The action brought by the waiter had been settled, prior to oral argument before the higher court, for $27,500, so the only remaining issue before the court was which insurance company, if any, was liable. The trial court's summary judgment against AEIC was reversed, and the action was remanded with instructions to enter judgment in favor of AEIC.
Jones et al. v. American Employers Insurance Company, Appellant--No.
C-940939--Court of Appeals of Ohio, First District, Hamilton County--September
29, 1995--666 North Eastern Reporter 2d 1152.