Bluemile, Inc. v. Atlas Industrial Contractors, Ltd., 12 CV 5597

CourtCourt of Common Pleas of Ohio
Writing for the CourtMCINTOSH, J.
PartiesBLUEMILE, INC., Plaintiff, v. ATLAS INDUSTRIAL CONTRACTORS, LTD., et al., Defendants. ATLAS INDUSTRIAL CONTRACTORS, LLC, Plaintiff, v. BLUEMILE, INC, et al., Defendants
Decision Date25 February 2014
Docket Number12 CV 5597,12 CV 5768

BLUEMILE, INC., Plaintiff,
v.

ATLAS INDUSTRIAL CONTRACTORS, LTD., et al., Defendants.

ATLAS INDUSTRIAL CONTRACTORS, LLC, Plaintiff,
v.

BLUEMILE, INC, et al., Defendants

Nos. 12 CV 5597, 12 CV 5768

Court of Common Pleas of Ohio, Franklin

February 25, 2014


DECISION AND ENTRY DENYING DEFENDANT HARTFORD CASAULTY INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFF BLUEMILE, INC.'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DECLARATORY RELIEF

MCINTOSH, J.

This matter is before the Court on Motion by Defendant Hartford Casualty Insurance Company for Summary Judgment and Motion by Plaintiff Bluemile, Inc. for Partial Summary Judgment and Declaratory Relief, both filed September 23, 2013. The motions have been fully briefed and the parties appeared before the Court for a hearing on the matter on November 18, 2013. Upon review and for the following reasons, the Court finds in favor of plaintiff and against defendant.

STATEMENT OF FACTS

The underlying facts are not in dispute. Bluemile, Inc. (" Bluemile") provides cloud, network, data hosting, and phone services. On February 10, 2011, Bluemile suffered an outage that caused a disruption in services from 7:36 a.m. to 9:45 a.m. Bluemile alleges in its Complaint that it suffered damages in excess of $7, 000, 000.

At all times relevant, Bluemile had an insurance policy with Hartford Casualty Insurance Company (" Hartford"), which provided Business Income and Extended Business Income (" EBI") coverage. Hartford paid Bluemile $514, 898 toward its claim for Business Income coverage. However, the parties dispute the length of time for EBI Coverage, which is the sole issue before the Court at this time.

The EBI language in Bluemile's policy states:

Extended Business Income
We will pay for the actual loss of Business Income you incur during the period that:
(1) Begins on the date property is actually repaired, rebuilt or replaced and " operations" are resume; and
(2) Ends on the earlier of:
a. The date you could restore your " operations" with reasonable speed, to the condition that would have existed if no direct physical loss or physical damage occurred; or
b. 90 consecutive days after the date determined in (a) above.

The parties' dispute arises from the language in subsection 2(b). Bluemile argues that subsection 2(a) governs the length of EBI coverage, while Hartford suggests that there is a typographical error in subsection 2(b) and the length of time is 90 days from the date of repair. Bluemile and Hartford now move for summary judgment.

STANDARD OF REVIEW

In order to prevail upon a motion for summary judgment, the moving party must inform the court of the basis for the motion and identify those portions of the record which demonstrate the absence of a genuine issue of material fact. In Dresher v. Burt (1996), 75 Ohio St.3d 280, 1996 Ohio 107, 662 N.E.2d 264, the Ohio Supreme Court explained:

the movant must be able to point to evidentiary materials of the type listed in Civ.R.56(C) that a court is to consider in rendering summary judgment. . . . These evidentiary materials must show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. . . . If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied, (emphasis added).
Id. at 292, 293.

Although the court is obligated to view all evidentiary material in a light most favorable to the non-moving party, Temple v. Wean United, Inc . (1977), 50 Ohio St. 2d 317, 364 N.E.2d 267, when faced with a properly supported motion for summary judgment a non-moving party may not rely upon the mere allegations of its complaint, but must demonstrate a material issue of fact exists by directing the court's attention to evidentiary materials of the type listed in Civ.R. 56(C). Dresher at 292. See also, Wing v. Anchor Media, Ltd . (1991), 59 Ohio St.3d 108, 111, 570 N.E.2d 1095, following Celotex v. Catrett (1986), 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265; and Morris v. Ohio Cas. Ins. Co . (1988), 35 Ohio St.3d 45, 517 N.E.2d 904. Viewing all facts in a light most favorable to the non-moving party, the court must determine whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one sided that one party must prevail as a matter of law. Turner v. Turner (1993), 67 Ohio St.3d 337, 340, 1993 Ohio 176, 617 N.E.2d 1123.

The court must examine...

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