A homeowners policy that had been issued to the parents of Eric Gordon by Nationwide contained the usual exclusion of bodily injuries which were intended or expected by the insured. There seemed to be no question but that Eric Gordon was covered under the policy issued to his parents.

The evidence showed that Gordon struck Aaron Dawson on his head with a metal "club-like" object which was shown to be used as an anti-theft device to lock a steering wheel. Gordon said that he did not intend or expect Dawson's death. However, he testified that he "knew someone was behind" him when he swung his body around with the metal club in his hands. Only one blow landed on Dawson's head, but it proved to be fatal.

Nationwide denied liability on the "intentional injury" provision in its policy, alleging that Gordon's conduct was such that the injury was intended--or reasonably certain to occur. The company argued that Gordon's statements denying intent to cause Dawson's death were not sufficient to overcome the fact that, based on Gordon's actions, injury to Dawson was intended or substantially certain to occur.

The jury in the trial court found in favor of the administrator of Dawson's estate, and Nationwide appealed. The jury specifically found that Gordon did not intend or expect to cause the injury or Dawson's death. In the criminal action against him, Gordon had pled guilty to negligent homicide.

The higher court decided that an insurance company does not need to prove the crime of murder in order for the intentional act exclusion to apply. Therefore, the trial court erred in its ruling that Nationwide had to demonstrate that Gordon intended to cause Dawson's death. It believed that reasonable minds would conclude that both the act and the injury were intended. "Hitting a person's head with enough force to cause the victim's brains to flow out certainly tends to show an intent to do physical harm." Gordon's statements that he did not intend or expect Dawson's death did not rebut this.

In another assignment of error, Nationwide claimed the trial court erroneously instructed the jury on the meaning of "expected" as used in the exclusion. However, there was no transcript or record of the instruction, and the higher court said it had to presume the correctness of the proceedings.

The judgment entered in the trial court in favor of the administrator of Dawson's estate was reversed and the action remanded for further proceedings consistent with this opinion.

Horvath, Admr. v. Nationwide Mutual Fire Insurance Company, Appellant--No. 95APE06-96-795--Court of Appeals of Ohio, Tenth District, Franklin County, January 25, 1996 (Discretionary appeal to the Supreme Court of Ohio was not allowed)--671 North Eastern Reporter 2d 638.