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Gibson's Bakery v. Oberlin College - Lexington Ins Co Motion To Intervene
Gibson's Bakery v. Oberlin College - Lexington Ins Co Motion To Intervene
Pursuant to Ohio Civil Rules 24( ) and 24(B), Lexington Insurance Company
("Lexington") respectfully moves this Court for an order allowing it to intervene in this suit for
the limited purpose of submitting Jury Interrogatories and Instructions. Further, and pursuant to
Local Rule 9(III), Lexington respectfully moves this Court for an order shortening time for the
briefing and ruling on its motion to intervene. Lexington's motion and application is supported
MEMORANDUM IN SUPPORT
I. INTRODUCTION
coverage to defendants Oberlin College aka Oberlin College and Conservatory ("Oberlin") and
Meredith Raimondo for certain damages in this action. Lexington seeks intervention in this
action for the limited pupose of submitting intenogatories to the jury in order to determine facts
at issue in this action that would impact coverage under its policy.
The Lexington policy does not provide coverage for "bodily injury" or "property
damage" intentionally caused by defendants. While the Lexington policy potentially provides
coverage in relation to "personal and advertising injury," defined to include defamation andlor
disparagement in ceftain circumstances, the Lexington policy excludes any such coverage if
"personal and advertising injury" is caused "with the knowledge that the act would violate the
rights of another...," or if the insured published material it knew to be false. Further, the
Lexington policy provides coverage for punitive damages insurable by law, but only where the
In this action, plaintiffs Gibson Bros., Inc., Allyn Gibson, and David Gibson allege that
defendants Oberlin and Ms. Raimondo published material that falsely characterized the bakery
potentially implicate "personal and advertising injury," plaintiffs also alleged that the statements
were published with malice, were intended to injure plaintiffs' business reputation, and were part
of a purpofted campaign to harm plaintiffs. If it is established that the defendants knew the
alleged statements were false, or if the defendants knew their alleged acts would violate
plaintiffs' rights, the Lexington policy would exclude coverage for any resultant damage. Thus,
Lexington seeks to intervene in order to submit jury interrogatories to determine the extent of the
Further, the Lexington policy provides coverage for punitive damages only when the
punitive damages are assessed relative to covered compensatory damages. Here, plaintiffs seek
punitive damages for the claims of libel, tortious interference with contract, tortious interference
with business, intentional infliction of emotional distress, and trespass. Only the libel claim is
potentially embraced by the Lexington policy. Thus, Lexington seeks to intervene in order to
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submit jury interrogatories and instructions to determine what punitive damages, if any,
Lexington has a right to intervene under Rule Civ. P. 24(A) because it has an interest in
the subject of the action, as Lexington may ultimately be liable to indemnify, in part, any
resulting judgment in this action, if covered under its policy. Further, Lexington's interests are
not adequately represented by the existing parties because neither plaintiffs nor defendants have
an interest in establishing that there is no coverage for the libel claim. Nor do the parties have
any interest in allocating a potential punitive damage award in relation to covered or uncovered
claims. Lexington's motion is also timely based on Lexington's ongoing communications with
the defendants on submittal of jury interrogatories and instructions, and defendants' recent
failure to reveal their position on the subject with Lexington. Further, the intervention proposed
through this motion is highly limited, and no delay or prejudice will result.
submit jury interrogatories and instructions as proposed through this motion. Lexington also
inquired as to when proposed jury interrogatories and instructions were due, and was informed
on April 27,2019 by defense counsel for Oberlin and Ms. Raimondo that there was currently no
deadline set by the Court and that the deadline would probably be several weeks away.
Lexington advised the defendants that Lexington understood the defendants would adopt
Aprrl 27,2019, the defendants responded that they would inform Lexington of their position on
April 29, 2019. Defendants did not inform Lexington on April 29, 2019 as represented and, as
such, Lexington is acting out of an abundance of caution in the form of this motion, as Lexington
a
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remains unceftain of defendants' position, despite repeated communications and requests by
Lexington.
under Rule Civ. P. 24(B) because the determination of coverage under the Lexington policy
shares common questions of fact with this action, and no undue delay or prejudice to the existing
il. BACKGROUND
Raimondo, Oberlin's Vice President and Director of Students, captioned Gibson, et al. v. Oberlin
College a/k/a Oberlin College and Conservatory, Lorain County Court of Common Pleas, Case
The complaint seeks compensation for defendants' alleged interference with Gibson's
following a claimed attempt by Oberlin students to purchase alcohol with false identification.
buy alcohol at Gibson's with false identification on November 9, 2016. (Compl. n 24. The
incident resulted in a physical altercation with Allyn W. Gibson, which defendants allegedly
maintained was racially motivated. (Id at fl 35). Thereafter, defendants purportedly encouraged
As part of its purported campaign against Gibson's, Oberlin employees and students
allegedly protested outside the bakery and purportedly circulated flyers accusing Gibson's of
being a racist establishment and encouraged the public to "shop elsewhere." (ld.at fl 38). The
complaint alleges that similar posters were displayed in Oberlin's Student Union. (ld. at fl 48).
The complaint fuilher alleges that defendants forced Bon Appetit Management Company ("Bon
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Appetit"), one of the college's food service contractors, to cancel its contract with Gibson's. (1d
at\ 57).
Plaintiffs allege that the Oberlin Police Department explained to Oberlin that out of the
40 adults arrested at the bakery, only six were African-American. (Id. at J[ 51). The complaint
claims Oberlin consciously ignored these facts and acted with "intentional disregard of the truth"
in continuing to publicly maintain that Gibson's is a racist establishment. (Id. at\ 52).
Based on these allegations, among others, plaintiffs seek to recover compensatory and
punitive damages from Oberlin and Ms. Raimondo for the following remaining claims: libel,
tortious interference with business relationships, tortious interference with contract, intentional
After tender of the lawsuit, Lexington informed the defendants that the Lexington policy
did not respond to certain claims in the lawsuit. In particular, based on the claims that remain in
the lawsuit, Lexington advised that the Lexington policy only potentially responds to the libel
claim, but that the Lexington policy is excess to other insurance provided through a commercial
general liability policy issued by College Risk Retention Group, Inc. ("CRRG") and an
Educator's Liability policy issued by United Educators ("UE") in relation to the libel claim.
Lexington further advised that the Lexington policy only embraces punitive damages
when assessed relative to covered compensatory damages that implicate the Lexington layer of
coverage. (Affidavit of Patrick Fredette ("Fredette Aff.'), fl 3). In this regard, Lexington's
coverage, if any, is also excess to the UE policy not simply for any covered liability arising out
t Th" complaint also brought claims for slander and deceptive trade practices, however, the
Court granted Oberlin and Ms. Raimondo summary judgment in their favor relative to these
claims. Further, the claim for negligent hiring does not seek punitive damages.
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of the libel claim, if any, but also any covered punitive damage award, subject to the $1 million
On April 16,2019, Lexington issued a supplemental reservation of rights letter. (ld. at\
4). In addition to again advising defendants that certain claims are not embraced by the
Lexington policy, Lexington requested that defendants submit jury interrogatories to delineate
the basis of any finding of liability with respect to the various claims, including the basis of any
damage award relative to each claim. (Id. atfls). On April 24,2019, Lexington again wrote to
the defendants regarding the need for jury intenogatories relating to the same subject matter.
Lexington also offered in both communications to work with the defendants to prepare jury
interrogatories and instructions. (Id. at fl 6). The defendants did not respond to either letter. (Id.
at\7).
Having received no assurance that the requested jury interrogatories would be submitted,
Lexington wrote to defense counsel on April 27,2019. (Id. at J[ 8). Defense counsel responded
that the Court had not set a date for submitting jury interrogatories and that the date would
probably be at least several weeks away. (!d. atn\. Defense counsel advised that defendants
would provide their position regarding Lexington's request to submit the requested jury
interrogatories and instructions on April 29,2019, but no further correspondence followed. (Id.
at fl 10). Having received no response from the defendants, either through defense counsel or
6
ilI. LAW AND ARGUMENT
Rule 24 of the Ohio Rules of Civil Procedure permits intervention, and provides as
Civ. R. 24 isto be afforded "liberal construction...in favor of intervention." State ex rel. v. Frost,
The burden of showing that the applicant's interests are not adequately represented by the
existing parties is minimal. The burden is met if the applicant shows that representation of its
interests "may" be inadequate. See Michigan State AFL-CIO v. Miller,103 F.3d 1240,1247 (6th
Cir. 1997)2; Bushv. Viterna,740F.2d 350 (5th Cir. 1984); Anguine, Ltd. v. United States Dept.
of Interior,736 F.2d 1416 (10th Cir. 1984). "Civ. R. 24, providing for intervention of right,
protects applicants whose interest may be practically impaired as well as legally impaired...."
Sears, Roebuck & Co. v. J-Z Realty Co.,I9l5 WL 182026, at *2 (Ohio Ct. App. I975); see also
Steinberg v. Shearson Hayden Stone, Inc., 598 F. Supp. 273 (D. Del. 1984) (any "practical
impairment" of the intervenor's ability to protect its interests may give it a right to intervene).
2
Although some cases cited interpret Fed. R. Civ. P. 24, rather than the Ohio rule, the two rules
are almost identical and thus judicial construction of the federal rule is informative . See Olynyk
v. Scoles, 114 Ohio St. 3d 56, 61 (2001) (cases interpreting a federal rule are informative in
relation to a similar Ohio rule).
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Lexington has "an interest relating to the property or transaction which is the subject of
thfis] action," because it may be obligated to indemnify, in part, a verdict against Oberlin and
Ms. Raimondo, its insureds. However, any potential coverage under the Lexington policy turns
on certain specific findings. First, if defendants knew the alleged defamatory statements were
false, or if defendants knew that their alleged actions would violate the rights of plaintiffs, there
is no coverage for the libel claim. Here, the complaint contends the alleged defamatory
statements were "published with malice and were intended to injure Plaintiffs' business
reputation." It is further alleged that defendants consciously ignored the purported fact that the
Oberlin Police Deparlment explained to defendants that out of the 40 adults arrested at the
bakery, only six were African-American. Thus, plaintiffs claim defendants acted with
establishment. To the extent true, then coverage would be excluded under the Lexington policy.
While plaintiffs' allegations suggest coverage may potentially be excluded, the parties to the
lawsuit are unlikely to protect Lexington's interests in making that determination, as doing so
would also establish that there is no coverage for the libel claim.
Fufther, the Lexington policy only responds to punitive damages if assessed relative to
covered compensatory damages that implicate the Lexington layer of coverage. A general
verdict for punitive damages would not delineate which claim or claims the jury believed
warranted punitive damages. The claims for torlious interference, IIED and trespass are not
embraced by the Lexington policy, and thus a punitive damages award based on any of these
insurable by law. A general verdict would likely not delineate whether Oberlin or Ms.
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Raimondo was being assessed punitive damages for their own alleged malicious conduct, or
because Oberlin or Ms. Raimondo "authorized, participated in, or ratified actions or omissions
by" their agents whose acts or omissions "demonstrate actual malice or egregious fraud." Est. of
Beavers v. Knapp,889 N.E.2d l8l,194 (Ohio Ct. App. 2008). Unlike a punitive damage award
based on the latter, which is potentially covered under the UE policy, The Corinthian v. Hartford
Fire Ins. Co.,758 N.E.2d 218,223 (Ohio App. 8th 2001), punitive damages assessed based on
alleged malicious conduct is not insurable under Ohio law. See O.R.C. $ 3937.182(B); Stephens
v. Grange Mut. Ins. Co.,2012-Ohio-4980,n28 (Ohio Ct. App. 2012) ("Punitive damages are not
insurable, and the use of insurance proceeds to satisfy an award of punitive damages is against
public policy"). The parties are unlikely to determine whether any punitive damage award - if
any - is the result of any defendants' own alleged malicious conduct or that of its purported
agents. However, the issue is germane to Lexington and UE, as it would relate to determining
Ohio courts have held that similar interests asserted by insurers warrant intervention to
ascertain whether various claims and potential damages would be covered under the insurer's
policy. See, e.g., Alhamid v. Great Am. Ins. Co.,2003-Ohio-4740, fl17 (Ohio Ct. App. 2003)
("ltlhe most reasonable opportunity to determine the extent of coverage issue...is during this
trial through the simple submission of jury intenogatories"); Nationwide Ins. Co. v. Phelps,
In Schmidlin,lhe insurer, Great Midwest Insurance Co. ("Great Midwest"), sought intervention
*2.
for the limited purpose of submitting jury intenogatories under similar circumstances. Id. aL
The trial court denied Great Midwest's motion, but the Court of Appeals reversed the trial
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court's decision. The Court of Appeals rejected the argument that the purpose of Great
Midwest's intervention was not limited because the insurer reserved the right to seek a
declaratory judgment with respect to the applicable limit of liability: "Reserving the ability to
request appropriate declaratory relief after the trial was over is not inconsistent with the limited
The court further concluded, "The extent of Great Midwest's financial exposure, if any,
would depend on the legal basis upon which Schmidlin obtained a verdict against the D & V
defendants." Id. The court then stated,"That question could be answered only by this jury.
Under analogous circumstances, the court in Peterman v. Pataskata (1997), 122 Ohio App.3d
758, found intervention appropriate 'due to the fact that appellants have no other method,
available to them, to protect their interests. Such circumstances favor intervention."' Id. at *5.
(Emphasis added).
St. 3d 365,361-68 (1989), the Supreme Courl of Ohio considered the necessity of an insurer
intervening to preclude relitigation of issues, such as a tortfeasor's mental state. The Howell
court noted:
Id. at 367-68. See also Grange Mut. Cas. Co. v. Uhrin,49 Ohio St.3d 162 (1990).
10
culpable mental state, collateral estoppel precludes relitigation of the determination in a
For these same practical reasons, Lexington is entitled to intervene in this suit. Allowing
well as gain clarity regarding the source and basis of any potential punitive damage award. See
Tomcany v. Range Const.,2004-Ohio-5374, fl 34 (Ohio Ct. App. 2004) ("If appellant would be
permitted to intervene, appellant could submit jury instructions enabling it to ascertain whether
any potential damages would be covered under the relevant insurance policy, and appellant's
intervention would thus add an element to the proceeding which would not exist absent its
intervention").
Lexington has discharged its duty under Ohio law regarding notification to the insured to
allocate covered verses non-covered exposure. Under Ohio law, "an insured has the burden to
prove entitlement to coverage, inclnding the burden of allocating a prior general award into
covered and noncovered claims, but that where an insurer has a duty to defend the insured and
fails to seek an allocated verdict or advise the insured of the needfor one,theburden shifts to the
insurer." World Harvest Church v. Grange MuL Cas. Co.,2073-Ohio-5707 (Ohio Ct. App.
Lexington has properly and fully complied with World Harvest. In particular, Lexington
has - on at least three separate occasions - specifically advised the defendants regarding the
significant need for jury intenogatories to help define covered exposure and the potential
ramifications if no allocation is sought. (Fredette Aff., flfl 8-10). See id. ("If Grange truly
believed that intervening in the case to submit special interrogatories would have compromised
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WHC and its employee's ability to advance their agreed upon joint defense, Grange or its
provided counsel could have still discharged any duty by precisely advising WHC of the need for
an allocation of the damages and the consequences of not obtaining one") (emphasis added).
Not only has Lexington specifically advised defendants of coverage limitations with
regard to a general verdict and requested that defendants submit jury interrogatories, Lexington
was under the belief that the defendants would comply with Lexington's request, as Lexington
was never advised otherwise. Lexington was eventually advised by defense counsel that a
response to Lexington's numerous requests would arrive on April 29, 2019, however, only
silence followed. Thus, Lexington has been forced to undertake the instant motion.
circumstances of the case. The following factors are considered in determining timeliness: (1) the
point to which the suit had progressed; (2) the purpose for which intervention is sought; (3) the
length of time preceding the application during which the proposed intervenor knew or
reasonably should have known of his interest in the case; (4) the prejudice to the original parties
due to the proposed intervenor's failure after he knew or reasonably should have known of his
interest in the case to apply promptly for intervention; and (5) the existence of unusual
circumstances militating against or in favor of intervention." State ex rel. First New Shiloh
Baptist Church v. Meagher, 82 Ohio St.3d, 501 503 (1998) (citations and punctuation omitted).
While the lawsuit has proceeded to trial, intervention is sought for the limited purpose of
indicates Lexington's motion is timely. In Schmidlin, Great American filed its motion two
weeks before the trial was to begin. While the trial court found the motion untimely, the court of
appeals reversed, finding "there is no indication that Great Midwest's limited participation would
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have caused any substantive prejudice to the parlies." See also Tomcany, supra, atn 44 ("There
is no reason to think that this matter could not have proceeded to trial as scheduled, with
appellant's parlicipation limited to that which it requested, or that appellant's participation would
No prejudice to the parties will result from the intervention here because Lexington seeks
intervention only to submit interrogatories to the jury in relation to facts the parties have
developed, or will develop, aL trial. Indeed, defense counsel indicated the deadline for jury
interrogatories has not been set and thus has not passed. In short, no delay will result. Tomcany,
supra, at n 46 ("fp]ermitting narrow intervention in the instant matter was the only practical
means to allow these legal claims to be decided efficiently and consistently and without extreme
requests for the submittal ofjury interrogatories and instructions. Because Lexington's motion is
timely in the context of this action, and based on Lexington's efforts and belief the defendants -
as insureds - would act as requested by Lexington - no prejudice to the parties will result, and
Lexington is entitled to intervene under Rule Civ. P.24(A).
In addition to allowing for intervention as of right, Rule 24 of the Ohio Rules of Civil
Procedure states:
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As discussed above, there are common questions of fact that underpin both the lawsuit
and a determination of coverage under the Lexington policy. In particular, plaintiffs allege
plaintiffs seek punitive damages for uncovered claims as well as for Oberlin's purported
malicious acts. Damages assessed against Oberlin on either basis are not covered by the
Lexington policy. Fufiher, because Lexington seeks intervention for the limited purpose of
submitting jury intenogatories, there will be no undue delay or prejudice to the adjudication of
the rights of the original parties. Schmidlin,2000 WL 709039 at *5 ("its intervention would not
cause any delay or disruption of the existing trial proceedings, its participation at trial would be
limited to submitting jury interrogatories and/or jury instructions, and no apparent prejudice
would result from granting such limited intervention"). Thus, Lexington should be allowed to
C. Good Cause Exists to Shorten the Time for Briefing and Ruling on the
Motion to Intervene
Pursuant to Local Rule 9(II), an opposition brief, if any, is due within fourteen days of
the motion. (See L.R. 9(II)). Thereafter, the motion is submitted for ruling. (Id ). However, the
jury trial in this matter began on May 1,2019. Thus, the Court may not have occasion to rule on
Pursuant to Local Rule 9(III), the Court may modify time periods set forth by the Local
Rules "for good cause shown, upon written application by either party or upon the Court's own
motion." (Id). Lexington respectfully submits good cause exists to modify the fourteen day
briefing schedule based on the reasons explained above. In particular, Lexington has been
diligent in its efforts to request defendants submit jury interrogatories on these subjects and acted
as quickly as possible when it became apparent defendants might not cooperate with Lexington's
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request. (Fredette Aff. flfl 8-10). Further, the deadline for submitting jury intenog.atories has not
yet passed. See, e.g., Roberts v. State of Ohio, 1976WL 190113, at *2 (Ohio Ct. App. 1976).
("'Good cause' is a very flexible, equitable term. In large measure, what constitutes 'good cause'
ry. CONCLUSION
For the foregoing reasons, Lexington respectfully moves the Court to allow Lexington to
intervene for the limited pu{pose of submitting interrogatories to the jury in this action.
Lexington further respectfully requests that the Court shorten time for the briefing and ruling on
the motion so that Lexington can be permitted to timely submit jury interrogatories.
Respectfull
Patrick (0080s23
Jennifer P 4)
Christopher Ryan (0084607)
McCormick Barstow LLP
312 Walnut Street, Suite 1050
Cincinnati, Ohio 45202
Telephone: (513) 7 62-7 520
Fax: (513)762-7521
patrick. fredette@mccormickbarstow. com
j ennifer.paonessa@mccormickbarstow. com
chri stopher .ry an@mccormickbarstow. com
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CERTIFICA OF'SERVICE
The undersigned counsel for Lexington Insurance Company, hereby certifies that a copy
of the foregoing was served U.S. Mail on this 1st day of May, 2019, to the following:
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IN THE COURT OF COMMON PLEAS
LORAIN COUNTY, OHIO
v AFFIDAVIT OF PATRICK
FREDETTE IN SUPPORT OF
OBERLIN COLLEGE, et al., LEXINGTON INSURANCE
COMPANY'S MOTION TO
Defendants INTERVENE
NOW COMES Affiant, Patrick Fredette, and having been duly sworn, states as follows:
1. I am an adult who is competent to make this affidavit and I have first-hand knowledge
2. I am an attorney at the law firm of McCormick Barstow LLP, coverage counsel for
Lexington Insurance Company ("Lexington") with respect to the action, Gibson et al. v. Oberlin
College a/k/a Oberlin College and Conservatory, Lorain County Court of Common Pleas, Case No.
17 CY 19376 1 ("lawsuit").
including to advise of certain coverage limitations. In this regard, Lexington advised that the
Lexington policy only embraces punitive damages when assessed relative to covered compensatory
damages. Lexington further advised that its coverage, if any, is also excess to the UE policy not
simply for any covered liability arising out of the libel claim, if any, but also any covered punitive
damage award, subject to the $1 million limit in the UE policy for such damages.
1
5. In addition to again advising defendants that certain claims are not covered by the
Lexington policy, the April 16,2019letter advised the defendants of the importance of submitting
jury intenogatories to delineate the basis of any finding of liability with respect to the various
claims, including the basis of any damage award relative to each claim. The April 16,2019 letter
also informed defendants that Lexington would work with the defendants to prepare jury
6. On April 24,20I9,I sent another letter on behalf of Lexingtonto Mr. Bick regarding
the need for jury interrogatories relating to the claims and damages, as well as coverage limitations,
and explained again the importance of them for purposes of the defendants and their potential claims
for coverage under the Lexington policy, as well as the policies of other involved insurers. The
April24,20l9letter againinformed the defendants that Lexington would work with the defendants
8. On April 27,2019, I wrote to defense counsel for Oberlin, Ron Holman, regarding
the need for Oberlin and Ms. Raimondo to submit jury interogatories in the lawsuit relative to the
claims and damages, as well as coverage limitations. My April 27 ,2019 email also informed Mr.
Holman that Lexington understood that the defendants would adopt Lexington's various requests on
the subject, as the defendants never objected or otherwise responded to Lexington's various requests.
9. Mr. Holman advised me on April 27 , 2019, that the Court had not set a date for
submitting jury interrogatories but that the date would probably be at least several weeks away.
1 0. Mr. Holman further advised me on April 27 , 2079 , that the defendants appreciated
Lexington's communications, and represented that the defendants would advise of their position
2
regarding Lexington's request to submit jury interrogatories on Monday, April 29,2019, but no
1 1. Because the defendants did not further respond to Lexington's repeated requests, on
May 1, 2019,I informed counsel for Oberlin and Ms. Raimondo that Lexington would be filing the
12. Upon receiving the consent of Oberlin and Ms. Raimondo, Lexington will make
available to the Courl the communications referenced above in each of the separate paragraphs.
TRICK
STATE OF OHI O )
) SS:
COLINTY OF [IA,v\I t^{orrl )
Sworn to and subscribed before me this lst day of May, 20I9by the foregoing Affiant, who
did swear or affirm it was her true act and deed.
a
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CERTIFICATE OF SERVICE
The undersigned counsel for Lexington Insurance Company, hereby certifies that a copy of
the foregoing was served U.S. Mail on this 1st day of May, 2019, to the following:
4
IN THE COURT OF COMMON PLEAS
LORAIN COUNTY, OHrO
Plaintiff in Intervention,
V
MEREDITH RAIMONDO,
256 Shipherd Cir.
Oberlin, OH 44014,
Defendants in
Intervention.
THE PARTIES
the State of Delaware, with its principal place of business in Boston, Massachusetts. Lexington
is authorized to and is conducting business in the State of Ohio.
2. Upon information and belief, Oberlin College, aka Oberlin College and
3. Upon information and belief, Meredith Raimondo is an Ohio resident and is the
general jurisdiction.
5. This Court has personal jurisdiction over Oberlin because Oberlin is a citizen of
6. This Court has personal jurisdiction over Ms. Raimondo because Ms. Raimondo
7. Venue is appropriate pursuant to Ohio Rule Civ. P. 3(B) because the claims in this
complaint arose out of incidents and transactions that occurred in Lorain County, Ohio.
BACKGROUND
A. The Lawsuit
Raimondo, Oberlin's Vice President and Director of Students, captioned Gibson et al. v. Oberlin
College a/Ha Oberlin College and Conservatory, Lorain County Court of Common Pleas, Case
2
10. More specifically, plaintiffs allege through the lawsuit that three African-
American Oberlin students attempted to buy alcohol at Gibson's with false identification on
November 9,2016. The claimed incident resulted in a purported physical altercation with Allyn
11. As part of its purported campaign against Gibson's, Oberlin employees and
students allegedly protested outside the bakery where they purportedly circulated flyers accusing
Gibson's of being a racist establishment and encouraged the public "shop elsewhere."
12. The complaint in the lawsuit further alleges that similar posters were displayed in
13. The complaint in the lawsuit further alleges defendants forced Bon Appetit
Management Company ("Bon Appetit"), one of the college's food service contractors, to cancel
14. Plaintiffs in the lawsuit allege that the Oberlin Police Department explained to
Oberlin that out of the 40 adults arrested at the bakery, only six were African-American. The
complaint fuither alleges that Oberlin consciously ignored these purported facts and allegedly
acted with "intentional disregarded of the truth" in purporledly continuing to publicly maintain
15. Based on these allegations, among others, plaintiffs seek to recover compensatory
and punitive damages from Oberlin and Ms. Raimondo for the following claims: libel, tortious
interference with business relationships, tortious interference with contract,l intentional infliction
of emotional distress ("IIED"), and trespass. In addition, Plaintiffs seek compensatory damages
t The claims for tortious interference with business relationships and tortious interference with
contract are collectively be referred to as the "tortious interference claims."
a
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from Oberlin for a claim of negligent hiring.
Purchasing Group, Inc., under number 013136482 for the period of September 1 , 2016 to
September I, 2017. Oberlin is a named insured under the Lexington policy by endorsement.
The Lexington policy provides in relevant part:
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1 Caused by or at the direction of the "Insured" with the knowledge that the act
would violate the rights of another and would inflict "personal and advertising
injury".
2 Arising out of oral or written publication of material, if done by or at the direction
of the "Insured" with knowledge of its falsity.
SECTION V - DEFINITIONS
P "Occurrence" means;
1. As respects "bodily injury" or "property damage", an accident, including
continuous or repeated exposure to substantially the same general harmful
conditions. All such exposure to substantially the same general harmful
conditions will be deemed to arise out of one "occuffence".
2. As respects "personal and advertising injury", &n offense arising out of your
business that causes "personal and advertising injury". All damages that arise of
from the sarne, related or repeated injurious material or act will be deemed to
arise out of one "occunence", regardless of the frequency or repetition thereof,
the number and kind of media used and the number of claimants.
a. "Other insurance" means a valid and collectible policy of insurance providing coverage
for damages covered in whole or in part by this policy.
* * *
5
applicable law, subject to all other terms, conditions, definitions and exclusions of this policy
(including, but not limited to Exclusion W.).
The law of the jurisdiction most favorable to the insurability of punitive or exemplary damages
shall govern the interpretation of coverage for such damages under this policy, provided that
such jurisdiction either:
With respect to punitive or exemplary damages that would not have been insurable under this
policy without the Law Governing Insurability of Punitive or Exemplary Damages Endorsement,
the "Self-Insured Retention" is amended to mean the amount of the applicable limits of all
policies shown in the "scheduled underlying insurance" that would have applied to such damages
if they were not deemed to be uninsurable under such policies shown in the "scheduled
underlying insurance."
rF :1. *
18. A commercial general liability policy issued by College Risk Retention Group,
Inc. ("CRRG") under number GL090116 represents "Scheduled Underlying Insurance." The
19. The Lexington policy defines "Other Insurance" as "a valid and collectible policy
of insurance providing coverage for damages covered in whole or in part by this policy."
Oberlin under number ELS201600026000 for the period June 1, 2016 to June 1, 2017 provides
coverage for the libel claim and thus constitutes "Other Insurance" as defined by the Lexington
6
policy. The UE policy has a limit of $25,000,000 per claim and in the aggregate. Further, the
UE policy provides $ 1,000,000 in coverage for punitive damages where insurable by law.
2L The Lexington policy does not provide coverage for the tortious interference
claims because such claims are for economic losses that are not embraced by the terms of the
policy. Thus, to the extent the jury in this action awards damages based on the tortious
interference claims, Lexington would have no duty to indemnify such damages, whether
compensatory or punitive.
22. The Lexington policy does not provide coverage for the IIED claim because the
claim is inherently non-accidental in nature and thus does not implicate an "occunence" under
the Lexington policy. Thus, to the extent the jury in this action awards damages based on IIED,
Lexington would have no duty to indemnify such damages, whether compensatory or punitive.
23. The Lexington policy does not provide coverage for the trespass claim because
the claim is inherently non-accidental in nature and thus does not implicate an "occurrence"
under the Lexington policy. Further, plaintiffs do not allege the purported trespass was
"committed by or on behalf of the owner, landlord or lessor" as required under the terms of the
Lexington policy to constitute "personal and advertising injury." Thus, to the extent the jury in
this action awards damages based on the trespass claim, Lexington would have no duty to
24. The Lexington policy may potentially provide coverage in relation to the libel
claim, subject to proper satisfaction of the "Retained Amount," as defined in the Lexington
policy, but exclusions may apply to preclude coverage. In particular, the Lexington policy
excludes coverage for "personal and advertising injury" that is "fc]aused by or at the direction of
the 'Insured' with the knowledge that the act would violate the rights of another and would
7
inflict 'personal and advertising injury."' Further, coverage for "personal and advertising injury"
is excluded under the Lexington policy to the extent liability arises "out of oral or written
publication of material, if done by or at the direction of the 'Insured' with knowledge of its
falsity."
25. To the extent that the jury in this action finds that the defendants are liable to
plaintiffs for the libel claim, but that the defendants knew (a) that the acts giving rise to such
liability would violate the rights of another and inflict injury, or (b) that the statement(s) giving
rise to the claim were false, Lexington would have no duty to indemnify damages awarded for
26. The UE policy potentially provides coverage for punitive damages, but only in
certain circumstances. If the jury in this action were to award punitive damages based on the
defendants' own allegedly malicious conduct, coverage for such punitive damages appear to be
precluded under Ohio law, and thus also under the UE policy. But, if the jury in this action were
to award punitive damages based on the defendants' authorization, participation in, or ratification
of an agent's malicious acts. coverage for punitive damages may be implicated under the UE
policy.
27. If the UE policy provides any coverage for any damages awarded in relation to
the libel claim, the Lexington policy would not respond to any such damages unless and until the
UE policy properly exhausts. Further, if the jury awards punitive damages covered under the UE
policy, the Lexington policy would not potentially respond to any such award unless and until
28. Lexington submits this Complaint in Intervention for the limited purpose of
intervening in order to submit intenogatories and instructions to the jury to determine the
8
allocation of any damages awarded and the factual bases for any such damages, as Oberlin and
action; and,
B. Grant Lexington any and all further relief that this Court may deem equitable and
just.
Patrick
Jennifer (00 83 14
Christopher Ryan
McCormick Barstow LLP
312 Walnut Street, Suite 1050
Cincinnati, Ohio 45202
Telephone: (513) 7 62-1 520
Fax: (513) 762-7521
patrick. fredette@mccormickbarstow. com
j ennifer.paonessa@mccormickbarstow. com
9
CBRTIFICATE OF SERVICE
The undersigned counsel for Lexington Insurance Company, hereby certifies thatacopy of
the foregoing was served U.S. Mail on this 1st day of May, 2019, to the following:
4
IN THE COURT OF COMMON PLEAS
LORAIN COUNTY, OHIO
Defendants
Below you have been given written questions called interrogatories. You must answer them
in writing, starting with the first question and proceed as instructed. A question is answered when at
least six (6) of the jurors agree. All who agree with the designated answer must sign. If six (6)
iurors cannot agree on an answer. please report this to the Court. This instruction applies to
ALL intenogatories.
I
INTERROGATORY NO. 1
A. Did you award plaintiffs compensatory damages against the defendant Oberlin
College aka Oberlin College and Conservatory ("Oberlin")?
YES NO
If you answered o'Yes," proceed to the following question. If you answered "Noooo skip to
the first question of "Interrogatory No. 5" on page 9.
B Please state the amount of compensatory damages awarded against Oberlin with
respect to each cause ofaction:
Libel
Trespass
2
INTERROGATORY NO. 2
A. Did you find that Oberlin is liable to the Plaintiffs for libel?
YES NO
If you answered "Yes," proceed to the following question. If you answered "No," skip to the
first question of oolnterrogatory No. 3'o on page 5.
B Did Oberlin make or direct to be made any false or misleading statement of fact with
knowledge that the statement was false or misleading?
YES NO
a
-t
B Did Oberlin act or direct anyone to act in a way that Oberlin knew would violate the
Plaintiffs' rights?
YES NO
C. If you answered ooYes," to the preceding question, did Oberlin act or direct anyone to
act in away that Oberlin knew would cause damage to the Plaintiffs?
YES NO
4
INTERROGATORY NO. 3
YES NO
If you answered ooYesoo' proceed to the following question. If you answered o'Noo'o skip to
the first question of "Interrogatory No. 5" on page 8.
B Please state the amount ofpunitive damages awarded against Oberlin withrespectto
each cause ofaction:
Libel
Trespass
5
INTERROGATORY NO. 4
A. Did you award plaintiffs punitive damages against Oberlin for the libel claim?
YES NO
If you answered "Yes," proceed to the following question. If you answered o'No," skip to the
first question of 'olnterrogatory No. 5oo on page 8.
B Did you award the punitive damages because Oberlin's actions demonstrated actual
malice?
YES NO
6
B Did you award the punitive damages because Oberlin's actions demonstrated
aggravated or egregious fraud?
YES NO
C Did you award the punitive damages because Oberlin knowingly authorized,
participated in, and/or ratified the malicious actions or omissions of Oberlin's agent?
YES NO
7
INTERROGATORY NO.s
YES NO
If you answered proceed to the following question. If you answered t'No," you have
ooYesr'o
completed the Interrogatories and do not need to answer any further questions.
B Please state the amount of compensatory damages awarded against Ms. Raimondo
with respect to each cause of action:
Libel:
Trespass:
8
C With respect to each cause of action for which damages were awarded, please state
whether Ms. Raimondo was acting with respect to her duties as the Vice President
and Dean of Students of Oberlin:
Libel: YES NO
Trespass: YES NO
9
INTERROGATORY NO. 6
A. Did you find that Ms. Raimondo is liable to the Plaintiffs for libel?
YES NO
If you answered ooYesr'o proceed to the following question. If you answered "Noo" skip to the
first question of "fnterrogatory No. 7" on page 12.
B Did Ms. Raimondo make or direct to be made any false or misleading statement of
fact with knowledge that the statement was false or misleading?
YES NO
10
C. Did Ms. Raimondo act or direct anyone to act in a way that Ms. Raimondo knew
would violate the rights of Plaintiffs?
YES NO
D. If you answered "Yes," to the preceding question, did Ms. Raimondo act or direct
anyone to act in a way that Ms. Raimondo knew would cause damage to the
Plaintiffs?
YES NO
11
INTERROGATORY NO. 7
YES NO
If you answered ttYesrtt proceed to the following question. If you answered otNortt you have
completed the Interrogatories and do not need to answer any further questions.
B. Please state the amount of punitive damages awarded against Ms. Raimondo with
respect to each cause ofaction:
Libel
Trespass:
t2
INTERROGATORY NO. 8
A. Did you award plaintiffs punitive damages against Ms. Raimondo for the libel claim?
YES NO
If youanswered ooYesrt' proceed to the following question. If you answered ttNoooo you have
completed the Interrogatories and do not need to answer any further questions.
B Did you award the punitive damages because Ms. Raimondo's actions demonstrated
actual malice?
YES NO
t3
B Did you award the punitive damages because Ms. Raimondo's actions demonstrated
aggravated or egregious fraud?
YES NO
C Did you award the punitive damages because Ms. Raimondo knowingly authorized,
participated in, andlor ratified the malicious actions or omissions ofMs. Raimondo's
agerrt?
YES NO
You have completed the Interrogatories and do not need to answer any further questions.
14
IN THE COURT OF COMMON PLEAS
LORAIN COUNTY, OHIO
Defendants
Knowledge
1. DEFINITION.
A person has knowledge of circumstances when the person is aware that such circumstances
probably exist. A person has knowledge of the existence of a particular factif a person subjectively
believes that there is a high probability of its existence and fails to make inquiry or acts with a
conscious purpose to avoid learning the fact.
Authorities:
Ohio Rev. Code Ann. 5 2901.22
PROPOSED JURY INSTRUCTION NO. 2
Actual Malice
1. DEF'INITION
"Actual malice" necessary for an award ofpunitive damages is (1) a state of mind characterizedby
hatred, ill will, or a spirit of revenge; or (2) a conscious disregard for the rights and safety of another
Authorities:
Prestonv. Murty,32 Ohio St.3d 334 (1987); Moskovitz, Exr., v. Mt Sinai Med. Ctr.,69 Ohio St.3d
638 (tee4)
&
PROPOSED JURY INSTRUCTION NO. 3
Aggravated or Egregious Fraud
1. DEF'INITION
Fraud is "aggravated" if it is accompanied by the existence of malice or ill will. Fraud is
"egregious" if the fraudulent wrongdoing is particularly gross or malicious.
Authorities:
Charles R. Combs Trucking, Inc. v. Internatl. Harvester Co.,12 Ohio St.3d 241 (1984); Logsdonv
Graham Ford Co.,54 Ohio St.2d 336 (1978).
6014010. I