On October 18, 1989, Paul Kollstedt shot and killed Robert Hatmaker, and was arrested and charged with murder. Two days later, a clinical psychologist, Dr. Roger Fisher, examined Kollstedt and reported that the latter suffered from a severely psychotic illness which rendered him incapable of participating in his own defense. He concluded that "with proper care and medication" Kollstedt could be able within a year to do so. He was placed in the Dayton Mental Health Center.

In May 1990, a psychiatrist reported that no form of treatment could restore the patient to mental competency. The patient died in 1990 and left no written or recorded evidence regarding the shooting.

When the shooting occurred, Kollstedt had a homeowners policy issued by Nationwide.

Nationwide filed this action for declaratory judgment that it was not obliged to defend or indemnify anyone under its policy. Nationwide relied upon its exclusion of bodily injury or property damage, since the injuries were not "expected or intended" by the insured.

The trial court found that Nationwide was obligated under its policy to defend and indemnify the administrators of decedents' estates.

The Supreme Court of Ohio held that the policy exclusion of expected or intended injuries did not apply in this case where the insured, due to dementia of Alzheimer type, lacked mental capacity to commit intentional murder.

It said further that, when disputed, the determination as to mental capacity to commit an intentional act is a matter to be decided, in the first instance, by the trial court, and such determination should be made by that court on the basis of the evidence. Such a determination will not be disturbed in the absence of abuse of discretion.

The judgment entered in the trial court against the company was affirmed.

Nationwide Insurance Company, Appellant, v. Estate of Kollstedt et al--No. 93-942--Supreme Court of Ohio--March 29, 1995--646 North Eastern Reporter 2d 816.