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The U.S. Court of Appeals for the Sixth Circuit recently issued a decision, in Encore Industries, Inc. v. Travelers Property Casualty Company of America, reaffirming long‑established Ohio law regarding employer intentional torts and the corresponding intentional‑injury exclusions in many employer liability insurance policies. The Encore Industries ruling does not create new law; instead, it underscores that federal courts will continue to apply intentional‑injury exclusions consistent with plain policy language.
Evolution of Employer Intentional Torts
Ohio workers' compensation law provides that workers' compensation is generally the exclusive remedy for employees injured in the course of their employment. Historically, however, Ohio recognized a common‑law exception: an employee could sue an employer for an intentional tort outside the workers' compensation system. See Blankenship v. Cincinnati Milacron Chemicals, Inc., 433 N.E.2d 572 (Ohio 1982) (allowing employees to pursue tort claims where the employer acted intentionally to injure an employee). The Ohio Supreme Court later recognized two distinct classes of employer intentional torts: (1) acts committed with intent to injure, and (2) acts committed with knowledge that injury was "substantially certain" to occur. See Van Fossen v. Babcock & Wilcox Co., 522 N.E.2d 489, 504 (Ohio 1988).
The legislature, however, changed this framework in 2005 by enacting Ohio R.C. 2745.01, expressly abrogating the common‑law intentional‑tort cause of action. Talik v. Federal Marine Terminals, Inc., 885 N.E.2d 204, 208 (Ohio 2008). The statute now provides the exclusive mechanism by which an employee may assert an intentional-tort claim against an employer, and it requires proof of direct intent to injure. As with the common-law standards, Ohio R.C. 2745.01 provides liability where the employer either acts with intent to injure or a belief that injury is "substantially certain" to occur. Ohio R.C. 2745.01 (A). "Substantial certainty" is defined to mean "that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death." Ohio R.C. 2745.01 (B).
The statutory structure works in tandem with Ohio's workers' compensation preemption statute—Ohio R.C. 4123.74. As the Ohio Supreme Court has made clear, an employer is not liable for an intentional tort absent direct intent to injure the employee. Houdek v. ThyssenKrupp Materials, N.A., Inc., 983 N.E.2d 1253, 1258 (Ohio 2012).
Sixth Circuit's Decision
In Encore Industries, an employee was killed while clearing a jam in a trim‑press machine. His family sued under Ohio R.C. 2745.01, alleging that Encore intentionally caused the injury by removing machine safety guards. The case settled. Encore then sought indemnity under its respective insurance policies. But Encore's insurers denied coverage, relying on policy language excluding coverage for "bodily injury directly intended" by the insured. The district court sided with the insurers, and Encore appealed.
On appeal, the Sixth Circuit affirmed on the following grounds:
- Under Ohio R.C. 2745.01, the standards for "intent to injure" and "substantially certain that injury would occur" are "one and the same." As such, liability under Ohio R.C. 2745.01 exists only where the employer acted with direct intent to injure.1
- The requirement for direct intent is not altered by the reputable presumption contained in Ohio R.C. 2745.01 (C), which applies in instances where an employer deliberately removes a piece of safety equipment.
- Because the underlying employer intentional-tort claim in state court necessarily rested on alleged direct intent, the insurers' policies—covering only accidental injuries and excluding intentional injuries—did not obligate the insurers to indemnify Encore.
Why the Decision Matters
This decision does not expand or alter Ohio law. Instead, it provides a clear reaffirmation of two core principles:
- Ohio's employer intentional tort statute requires proof of direct intent to injure, regardless of the theory of liability (i.e., "substantially certain" or removal of safety equipment under Ohio R.C. 2745.01 (C)).
- Intentional‑tort exclusions in employer liability policies will be enforced according to their plain terms, particularly where the underlying claim legally requires a showing of direct intent—as is the case with Ohio R.C. 2745.01.
The Sixth Circuit's approach reflects continuity, not change. Federal courts applying Ohio law will continue to interpret Ohio R.C. 2745.01 narrowly and will uphold insurers' coverage positions where an underlying employer intentional-tort claim itself requires intent.
Footnote
1 As noted in Encore, the phrases "direct," "deliberate," and "specific" intent are often used "interchangeably." Encore Industries, 2025 WL 3516315, at *4.
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