Insurer Has Duty To Defend Wrongful Death Suit Because Of Discrepancy Between Exclusions

The United States District Court for the Northern District of Ohio, applying Ohio law, has held that a D&O insurer had a duty to defend a wrongful death lawsuit against its insured because of a ‘discrepancy’ between the policy’s exclusion for employment-related wrongful acts and an exception to the policy’s bodily injury exclusion. Roadway Servs., Inc. v. Travelers Cas. & Sur. Co. of Am., 2022 WL 55556, at *1 (N.D. Ohio Jan. 6, 2022).

The insured road construction company’s employee was killed by a driver while placing orange reflectorized barrels by the side of the road as part of a paving project.

His wife filed a wrongful death lawsuit against the company asserting that the company created a dangerous work environment and failed to institute adequate safety controls.

The company sought coverage under its D&O insurance policy.

The insurer denied coverage based on a bodily injury exclusion and an exclusion for employment-related wrongful acts. Coverage litigation ensued, and the parties cross-moved for summary judgment.