American States Ins. Co. v. Alverda Guillermin, 96-LW-0045

Decision Date17 January 1996
Docket NumberC.A. 15259,96-LW-0045
PartiesAMERICAN STATES INS. CO., Plaintiff-Appellee v. ALVERDA GUILLERMIN, et al., Defendants-Appellants C.A. Case No. 15259.
CourtOhio Court of Appeals

THOMAS E. JENKS, Atty. Reg. #0006193 and W. BENJAMIN HOOD, Atty Reg. #0062477, 205 E. First Street, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellee.

CARL W. ZUGELTER, Atty. Reg. #0007865 and RONALD W. SPRINGMAN, JR., Atty. Reg. #0041413, 1285 W. Ohio Pike, Amelia, Ohio 45102, Attorneys for Defendants-Appellants, the Kimberlys.

BRUCE S. WALLACE, Atty. Reg. #0010876, 108 S. High Street, Mt. Orab, Ohio 45154, Attorney for Defendant-Appellant, the Guillermins.

OPINION

BROGAN P.J.

Appellants, Lee John Kimberly, a minor by and through his father and next friend Ronald Kimberly, Sr., Virginia Kimberly, Ronald Kimberly, Jr., a minor by and through his father and next friend Ronald Kimberly, Sr., and Ronald Kimberly, Sr., appeal from a grant of summary judgment by the Montgomery County Court of Common Pleas in favor of American States Insurance Company ("American States"), Appellee herein. The trial court awarded summary judgment upon American States' action for declaratory relief, in which the company claimed it was not bound under the terms of its homeowner's policy to extend coverage or a defense to its insured, Alverda Guillermin ("Alverda"), Defendant below.

American States issued a homeowner's policy to Alverda which was effective from December 20, 1992 to December 20, 1993. The policy insured Alverda's residence, located at 320 Ashwood in Dayton (the "insured location"). Alverda also owns a fifty-two acre farm in Brown County, Ohio. The policy did not include the farm within its coverage terms. Although Alverda did not reside on the farm and only visited there intermittently, she permitted her sons, Jerry Guillermin ("Jerry") and Ronald Guillermin ("Ronald"), Defendants below, access to the farm. The sons testified that they kept horses and other animals on the farm.

On August 8, 1993, Lee John Kimberly allegedly was attacked and mauled while on property occupied by the Kimberlys by a lion that the Appellants claim escaped from Alverda's farm. The Kimberlys filed suit against the Guillermins on September 16, 1993, alleging that, with Alverda's permission and Ronald's assistance, Jerry harbored the animal on the farm. The Kimberlys charged that the Guillermins were negligent for allowing the lion "to remain unattended on the premises without sufficient precautions to prevent [it] from leaving the premises[.] * * *" (R. 33, Ex. "A", paragraph 8). The Guillermins sought coverage and legal defense under the terms of Alverda's homeowner's policy.

On April 12, 1994, American States sought declaratory judgment in the Montgomery County Court of Common Pleas. The company alleged that it was not obligated to provide either coverage or defense for the Guillermins under the terms of the policy. American States asserted two theories: (1) that Jerry and Ronald were not "insureds"; and (2) that Alverda's farm was not an "insured location." Following discovery, American States and the Kimberlys filed motions for summary judgment and their respective memoranda in opposition to the motions. In addition to their assertion that Jerry and Ronald were "insureds," the Kimberlys also claimed that the policy should cover Alverda's allegedly tortious act of harboring the lion on her property. The trial court determined (R. 39), that neither son was an "insured" under the policy and that the farm was not an "insured location." The court did not address the Kimberlys' claim of coverage based on Alverda's purported harboring of the animal. The court granted American States' motion for summary judgment and denied the Kimberlys' summary judgment motion. From that judgment, the Kimberlys appeal. The Guillermins did not take an appeal from the judgment.

We consolidate the Appellants' two assignments of error for our analysis.

I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING AMERICAN STATES' MOTION FOR SUMMARY JUDGMENT.
II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING APPELLANTS['] (THE KIMBERLYS[']) MOTION FOR SUMMARY JUDGMENT.

The Kimberlys present two issues for our disposition. First, they argue that Jerry is a resident of his mother's household and, therefore, is an "insured" under the policy. The Kimberlys do not argue on appeal that Ronald is an "insured." Next, they claim the policy should extend coverage to Alverda's allegedly tortious acts. Arising necessarily from their second issue is their argument that the policy exclusion to payment for personal liability or medical treatment for "'bodily injury' * * * arising out of a premises * * * owned by an 'insured' * * * that is not an 'insured location'" is inapplicable under the facts of this case. The Appellants do not challenge the trial court's finding that the farm is not an insured location.

Before a court may grant summary judgment, the successful party must satisfy a three-pronged test:

The appositeness of rendering a summary judgment hinges upon the tripartite demonstration: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor.

Harless v. Mills Day Warehousing Co., Inc. (1978), 54 Ohio St.2d 64, 66. See Civ.R. 56(C). Because it avoids a trial, summary judgment circumvents the normal litigation process. Therefore, "the burden is strictly upon the moving party to establish, through the evidentiary material permitted by the rule, that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law." AAAA Ents., Inc. v. River Place Community Urban Redev. Corp. (1990), 50 Ohio St.3d 157, 161.

Once the movant meets its burden, the nonmoving party may not simply rely on the mere allegations of its pleadings to survive a motion for summary judgment, but must set forth specific facts showing there exists a genuine issue for determination at trial. Savransky v. City of Cleveland (1983), 4 Ohio St.3d 118, 119. Moreover, the nonmoving party must produce evidence on any issue for which it bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, paragraph three of the syllabus; Brads v. First Baptist Church, 89 Ohio App.3d 328, 333, jurisdictional motion overruled (1993), 67 Ohio St.3d 1506. Courts have interpreted Wing to mean that the nonmovant must produce evidence on "any issue upon which the movant meets its initial burden." Stewart v. B.F. Goodrich Co., 89 Ohio App.3d 35, 41, jurisdictional motion overruled (1993), 67 Ohio St.3d 1489. See Few v. Cobblestone, Inc. (Oct. 17, 1991), Montgomery App. No. 12490, unreported.

Because a trial court's determination of summary judgment concerns a question of law, we apply the same standard as the trial court in our review of its disposition of the motion; in other words, our review is de novo. Children's Med. Ctr. v. Ward, 87 Ohio App.3d 504, 508, jurisdictional motion overruled (1993), 67 Ohio St.3d 1481. We "accept the evidence properly before [us] and, with respect to the merit issues involved, construe the evidence most strongly in favor of the claims of the party against whom the motion is made." Buckingham v. Middlestetter (Mar. 22, 1993), Montgomery App. No. 13575, unreported. Therefore, our decision, like the trial court's, is founded on the record before us, including the evidence submitted by the parties in support of their respective positions.

Similarly, since the interpretation of an insurance contract is a matter of law, Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm (1995), 73 Ohio St.3d 107, 108; Johnson v. Lincoln Natl. Life Ins. Co. (1990), 69 Ohio App.3d 249, 254, we review its terms de novo, Guman Bros. Farm, supra, 73 Ohio St.3d at 108, citing Ohio Bell Tel. Co. v. Public Util. Comm. (1992), 64 Ohio St.3d 145, 147. When construing the provisions of an insurance policy, we are mindful that:

[g]enerally,*** words in a policy must be given their plain and ordinary meaning, and only in situations where the contract is ambiguous and thus susceptible to more than one meaning must the policy language be liberally construed in favor of the claimant who seeks the benefits of coverage.

State Farm Auto Ins. Co. v. Rose (1991), 61 Ohio St.3d 528 531-32, overruled on other grounds by Savoie v. Grange Mut. Ins. Co. (1993) 67 Ohio St. 3d 500. Accord Leber v. Smith (1994), 70 Ohio St.3d 548, 557; King v. Nationwide Ins. Co. (1988), 35 Ohio St.3d 208, syllabus; Buckeye Union Ins. Co. v. Price (1974), 39 Ohio St.2d 95, 99; Ohio Farmers Ins. Co. v. Wright (1969), 17 Ohio St.2d 73, 78. The concept of strict interpretation applies with "greater force to language that purports to limit or to qualify coverage." Watkins v. Brown (1994), 97 Ohio App.3d 160, 164, discretionary appeal not allowed (1995), 71 Ohio St.3d 1458. "However, the rule of strict construction does not permit a court to change the obvious intent of a provision just to impose coverage." Hybud Equip. Corp. v. Sphere Drake Ins. Co., Ltd., 64 Ohio St.3d 657, 665, certiorari denied (1992), 113 S.Ct. 1585.

Initially, we address the matter of Jerry's status as regards the policy. The policy defined "insured" as "[Alverda] and residents of your household who are * * * your relatives." There is no question but that Jerry is Alverda's son and, therefore, her relative. Thus, the issue is whether Jerry is a "resident[] of [her] household." The term "household"...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT