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DECISIONS INSURANCE LAW a commercial general liability (CGL) insurance policy that excludes bodily injury to an employee arising out of, or in the course of, employment does not provide coverage for an employer’s liability to an employee for a substantially certain intentional tort, the Ohio Supreme Court held on July 16. Penn Traffic Co. v. AIU Ins. Co., nos. 2001-1891, 2002-0262. A jury had returned a verdict against Big Bear grocery chain owner Penn Traffic, on an intentional tort claim brought by an employee who was hurt after falling from a store loading dock. The jury found that the store’s failure to install a guardrail on the dock made the employee’s injuries “substantially certain.” When the employer’s carrier refused to indemnify it, the employer filed for a declaratory judgment. But the trial court ruled in favor of the carrier because the policy excluded coverage for bodily injury to “[a]n employee of the insured arising out of and in the course of employment by the insured.” An intermediate appeals court upheld the ruling, holding that the employee was performing her job when she was injured and that her injuries, occurring as they did “in the course of employment,” were expressly excluded under the CGL policy. Affirming, the state’s top court said that although employer intentional torts are considered to be outside the employment relationship for purposes of a cause of action for intentional tort, the injury itself still arises out of, or in the course of, employment. A “CGL insurance policy that contains an exclusion from coverage for bodily injury to an employee arising out of or in the course of employment does not provide coverage for an employer’s liability for substantial-certainty intentional torts,” the court stated.

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