Havel v. Chapek — (OHIO COURT OF APPEALS)

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 CASE NO. 2004-G-2609



Intervening Plaintiff-Appellee, – vs – DAVID CHAPEK, et al., Defendants-Appellees.

 Civil Appeal from the Court of Common Pleas, Case No. 03 P 001073.

Judgment: Affirmed in part, reversed in part and remanded.

 {¶1} Appellant, Karen Havel (“Karen”), acting in her individual capacity and as co-administrator of the estate of Jessica Havel, appeals the judgment of the Geauga County Court of Common Pleas granting summary judgment in favor of appellees, David and Linda Chapek, (“Chapeks”), and in favor of intervening appellee, Grange Mutual Casualty Company (“Grange”). For the following reasons, we affirm in part, reverse in part and remand the matter.

{¶2} This case arises out of the murder of Karen’s daughter, Jessica Havel, by Jeremy Chapek, David and Linda Chapek’s son. Jeremy murdered Jessica at her apartment in Mt. Lebanon, Pennsylvania, on the morning of May 16, 2002. Jeremy returned to Ohio where he committed suicide. On November 4, 2003, Karen and Mark Havel filed suit against the Chapeks asserting claims of negligence, survivorship, and wrongful death. An amended complaint was subsequently filed in which Mark Havel withdrew as a party and added a claim for punitive damages.

{¶3} On April 7, 2004, Grange Mutual Casualty Company filed an intervenor’s complaint against the Chapeks, seeking a declaration that Karen Havel’s claims are not covered under the Grange homeowners insurance policy issued to the Chapeks and that Grange does not have a duty to defend the Chapeks under the terms of that policy.

{¶4} On October 1, 2004, the Chapeks moved for summary judgment. The Chapeks argued that they had no duty to supervise or control the conduct of their adult son, who was twenty-two at the time of the murder, and that Jessica’s murder was not a reasonable foreseeable event giving rise to a duty to warn Jessica or the police about Jeremy’s intentions.

{¶5} On October 15, 2004, Grange moved for summary judgment against the Chapeks. Grange argued that Karen’s negligence claims are derivative of Jeremy’s intentional act of murdering Jessica. Therefore, these claims do not constitute an “occurrence” or “accident” under the policy. Alternatively, Grange argued that Karen’s claims are barred by policy exclusions for damage that was “expected or intended *** by an insured” and for damage “arising out of *** physical or mental abuse.”

{¶6} The following facts were set forth by Karen in response to Grange and the Chapeks’ motions for summary judgment.

{¶7} Jeremy was described by several witnesses as “unusual,” “bizarre,” “weird,” and “strange.” Jeremy was described as having an interest in witchcraft and Satanism. The walls of his room at home were decorated with a swastika, the numbers “666,” the words “Lucifer is God,” and other “satanic symbols.” Jeremy owned a satanic bible and books about witchcraft. Jeremy had tattoos of a pentagram, a skull, and Marilyn Manson.  Jeremy also owned weapons including knives, a set of brass knuckles, a 12 gauge shot gun, and a 9 millimeter handgun.

{¶8} Evelyn Crombie, one of Jeremy’s high school teachers, testified that Jeremy used to dress in black, and on several occasions she heard Jeremy make “expressions of violence.” On one occasion, Jeremy wrote an essay that was “extremely violent.” Crombie reported this essay to the high school principal and to Jeremy’s mother. Crombie testified that his mother’s reply was that Jeremy was expressing his artistic side and that his teachers did not understand his creativity.

{¶9} In 1998, Jeremy began seeing a therapist. At this time, Jeremy was self-mutilating, i.e., cutting his arms. Jeremy was diagnosed with obsessive compulsive disorder and depression. Jeremy received regular counseling until his death and was taking Luvox, an antidepressant and antiobsessional drug. Jeremy ceased self-mutilating in 1999. Evidence indicated that in the months prior to Jeremy’s death, the obsessive compulsive disorder was under control but the depression was “somewhat worse” due to stress. Jeremy was also suffering from recurrent nosebleeds and migraines before his death.

{¶10} In high school, Jeremy was diagnosed with a reading comprehension disability. Jeremy was tutored at home for part of his senior year but was able to graduate with his class in 1998.

{¶11} Jeremy and Jessica began dating when they were about fifteen years old while attending Ledgemont High School, in Thompson, Ohio. After her eighteenth birthday, Jessica moved into the Chapeks’ home. In October 1999, Jeremy and Jessica moved into an apartment in Mt. Lebanon, Pennsylvania. Both Jeremy and Jessica worked in Pennsylvania and Jeremy attended the Art Institute of Pittsburgh. At one point, Jeremy and Jessica were engaged.

{¶12} Acquaintances described Jeremy as very controlling and jealous of Jessica. Jeremy is said to have threatened to kill Jessica if she cheated on him. Linda was described as constantly meddling in Jeremy and Jessica’s relationship, encouraging them to stay together and acting on Jeremy’s behalf by calling Jessica directly when there were problems. When Jessica broke up with Jeremy, Linda is said to have “wished the worst” on Jessica.

  1. In her appellate brief, Karen states that, “due to Jeremy’s bizarre and violent behavior, he had to be home schooled.” This statement is not supported by the record. Crombie’s affidavit states, “Jeremy was removed from school and placed on home tutoring. Mrs. Malobinski [the principal] indicated to me that this was the result of a violent incident that occurred at home.” A violent incident that occurred at home does not equate to “bizarre and violent behavior” at school. Moreover, anything Mrs. Malobinski “indicated” to Crombie is inadmissible hearsay.

{¶13} In January 2002, Jessica decided to end their relationship and told Jeremy to leave the apartment. Jeremy contacted Linda and had her bring him back to Ohio, since Jeremy did not have a car. Thereafter, Jeremy lived at Linda and David’s house. Karen had contact with Jeremy and Linda after the breakup with Jessica. Karen complained to Linda about Jeremy continuing to harass Jessica by calling her at work in Pennsylvania.

{¶14} At about 5:30 a.m., on the morning of May 16, 2002, as David was leaving for work, he discovered that Jeremy had taken Linda’s vehicle and had left a book bag in the driveway. David moved the book bag to the garage. During the day, Linda noticed that the 12 gauge shot gun was missing from Jeremy’s room. That afternoon, after police had contacted the Chapeks, the book bag was opened and found to contain shot gun shells, bullets, a dagger, wrist restraints and a ball gag.

{¶15} On this morning, Jeremy had taken Linda’s vehicle and driven to Mt. Lebanon, where he murdered Jessica by a combination of beating, stabbing, and strangulation. The attack on Jessica occurred at about 8:00 a.m. Thereafter, Jeremy returned to Ohio where he killed himself with a shot gun at Hell Hallow Wilderness area.

{¶16} In separate judgment entries, journalized on November 18, 2004, the trial court granted summary judgment in favor of Grange and the Chapeks. This appeal timely follows…