Does Policy Exclusion Require Insurer to Provide Defense Until Court Finds Injury Was 'Substantially Certain'

David Ward et al. v. United Foundries, Inc., et al. v. Gulf Underwriters Insurance Company, Case nos. 2010-1049 and 2010-1275

5th District Court of Appeals (Stark County)

ISSUE: Does an insurance policy exclusion of coverage for "bodily injury resulting from an act ... which is determined to have been committed by you [sic] with the belief that an injury is substantially certain to occur," require the insurer to provide a legal defense to the policyholder until such time as a judge or jury makes a determination that the policyholder knew that the conduct that caused injury was substantially certain to do so?

BACKGROUND: David Ward was injured in a workplace accident in the course of his employment with United Foundries Inc. (United). Ward filed an "intentional tort" lawsuit against United, alleging that the workplace condition that resulted in his injuries was known to the company and was so dangerous that it created a "substantial certainty" of injury.