Chubb Group of Ins. Companies v. Dr. Bahman Guyuron

• Court: Ohio Court of Appeals
• Writing for the Court: NAHRA, J.
• Decision Date: 14 December 1995
• Docket Number: 68468,95-LW-5385
• Citation: Chubb Group of Ins. Companies v. Dr. Bahman Guyuron, 68468, 95-LW-5385 (Ohio App. Dec 14, 1995)
• Parties: CHUBB GROUP OF INSURANCE COMPANIES, Plaintiff-Appellee v. DR. BAHMAN GUYURON, ET AL., Defendants-Appellants

CHUBB GROUP OF INSURANCE COMPANIES Plaintiff-Appellee v. DR. BAHMAN GUYURON, ET AL Defendants-Appellants

No. 68468.

95-LW-5385 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

December 14, 1995

Civil appeal from Common Pleas Court Case No. 257737.

For plaintiff-appellee: William H. Baughman, John G. Farnan Ronald A. Rispo, Glenn D. Southworth, WESTON, HURD, FALLON, PAISLEY & HOWLEY, 2500 Terminal Tower, 50 Public Square, Cleveland, Ohio 44113-2241.

For defendant-appellant, Dr. Bahman Guyuron: Robert S. Passov, 75 Public Square, Suite 914, Cleveland, Ohio 44113.

For Amicon Corporation: David A. Crisafi, 600 Standard Building, Cleveland, Ohio 44113.

For Champion Roofing Co.: Ernest W. Auciello, Bulkley Building, 1501 Euclid Avenue, 7th Floor, Cleveland, Ohio 44115.

For Paul Colton & Associates: David Schaeffer, 1800 Midland Building, 101 Prospect Avenue, West, Cleveland, Ohio 44115.

For Anthony Crisafi: Anthony Crisafi, Pro Se, Island Arch, 7632 Herschel Avenue, LaJolla, California 92037.

OPINION

NAHRA J.

Appellant, Dr. Bahman Guyuron, is appealing the decision of the trial court denying his motion for summary judgment and granting summary judgment in favor of appellee, Chubb Group of Insurance Companies. For the following reasons, we affirm.

Dr. Guyuron constructed a 400 foot underground tunnel on his property to connect his home to his recreational complex. The top of the tunnel ranged from two to six feet underground. Construction was completed in August, 1987. In July, 1987, appellant noticed dampness on the tunnel floor and damage to the paint, plaster and carpeting. The water problem was sporadic and was worse during rain or humidity. In the summer of 1992, water flowed or leaked through the tunnel ceiling and walls.

In 1992, appellant's caretaker, Fred Gorman, who had construction experience, excavated a portion of the tunnel. Gorman concluded that the tunnel was improperly installed. Appellant hired Charles Fazio & Associates, architects/planners, to examine the tunnel. Fazio conducted two excavations of the tunnel to expose the top and side of the tunnel to footing level. Fazio discovered that the backfill was inadequate. After removing insulation board from the tunnel, Fazio viewed the waterproofing membrane. Fazio opined the membrane was improperly installed.

Appellant submitted a proof of loss to the Chubb Group of Insurance Companies, under his Chubb QP policy. Appellant listed the cause and origin of loss as "negligent planning and construction."

The QP policy covered the tunnel for all risks of physical loss not otherwise excluded. The QP policy states in pertinent part:

WHAT WE DON'T COVER

We do not provide coverage:

2. Under Coverage A - House, Coverage B - Other Structures, Coverage C - Personal Property - Unscheduled and Coverage D - Loss of Use: we do not cover:

a. Water damage meaning: * * *

(3) water below the surface of the ground, including water which exerts pressure on, or seeps or leaks through a building, sidewalk, driveway, foundation, swimming pool or other structure;

* * *

3. Under Coverage A - House, Coverage B - Other Structures and Coverage C - Personal property -Unscheduled: we do not cover:

* * *

d. wear and tear, marring, deterioration, inherent vice, latent defect,

* * *

Under 3.a., 3.b., 3.c. and 3.d., any ensuing loss not excluded is covered.

Chubb filed a complaint for declaratory judgment to determine its rights and duties under the policy regarding the subject claim. The contractors who installed the tunnel were included as defendants. Appellant Guyuron filed cross-claims against the other defendants and a counterclaim against Chubb. The court granted Chubb's motion for summary judgment on the counterclaim. Chubb's motion for summary judgment on the coverage issue was denied. Appellant's motion for summary judgment remained pending.

Later, at a pre-trial on December 15, 1994, the trial judge announced he was sua sponte reconsidering his prior ruling and had decided to grant appellee's motion for summary judgment. On December 19, 1994, appellant withdrew his motion for summary judgment. In a journal entry dated December 30, 1994, the trial court granted summary judgment to Chubb, and denied Dr. Guyuron's motion for summary judgment. The journal entry stated that the remaining indemnity claims were separate and distinct, so the ruling on the insurance coverage issues would be a final appealable order.

I.

We will consider appellant's three assignments of error in reverse order. Appellant's third assignment of error states:

THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLE ERROR IN RECONSIDERING, SUA SPONTE, ITS PRIOR ORDER AND ENTERING AN ORDER GRANTING SUMMARY JUDGMENT TO CHUBB.

Appellant asserts that the trial court's order denying appellee's motion for summary judgment was a final appealable order. The trial judge may only reconsider interlocutory orders, not final orders. See Civ.R. 54(B), Beim v. Jemo Assoc., Inc. (1989), 61 Ohio App.3d 380.

An order in a special proceeding, such as a declaratory judgment action, which affects a substantial right is a final appealable order. General Accident Ins. Co. v. Insurance Co. of North America (1989), 44 Ohio St.3d 17, see R.C. 2505.02. General Accident Ins. Co. held that an order granting the insurance company summary judgment on the issue of whether it was entitled to a declaratory judgment that it had no duty to defend was a final order. In this case, unlike General Accident Ins. Co., the order in question did not affect a substantial right of the parties. By denying appellee's motion for summary judgment, the trial court only determined there were genuine issues of fact and appellee was not entitled to judgment as a matter of law. See Civ.R. 56(C). In other words:

The overruling of a motion for summary judgment in a special proceeding cannot be "an order affecting a substantial right made in a special proceeding," as that phrase is used in Section 2505.02, Revised Code, because, in effect, it constitutes a refusal to make an order rather than the making of an order.

Swanson v. Ridge Tool Co. (1961), 113 Ohio App. 357, par. 2 of the syllabus, followed in City of Mayfield Hts. v. Flanigan (Nov. 18, 1993), Cuyahoga App. No. 64131, unreported.

Additionally, the order denying appellee's motion for summary judgment did not contain an express determination that there was no just reason for delay. Such an express determination was required because there were multiple parties. Civ.R. 54(B), see General Accident Ins. Co., supra.

The order denying appellee's motion for summary judgment was not final. The court could sua sponte reconsider this on final order. See Beim, supra.

Accordingly, this assignment of error is overruled.

II.

Appellant's second assignment of error states:

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN MAKING A RULING ON DEFENDANT-APPELLANT'S CROSS-MOTION FOR SUMMARY JUDGMENT AFTER THE NOTION HAD BEEN OFFICIALLY WITHDRAWN FROM THE COURT'S CONSIDERATION.

We fail to see how denying appellant's cross-motion for summary judgment had any prejudicial impact upon appellant. Even the court would have treated the motion as withdrawn and had not ruled on the motion, it still would have granted appellee's motion for summary judgment. The trial court could reconsider its decision on appellee's motion for summary judgment because it was a non-final order. It did not matter whether appellant had an outstanding motion for summary judgment. If any error occurred, the error was harmless. See Civ.R. 61.

Additionally, when a motion has been submitted, the motion can only be withdrawn with leave of court. Gedeon v. Leiby (1991), 73 Ohio App. 3d 627. The trial court did not grant appellant leave to withdraw his motion for summary judgment.

Accordingly, this assignment of error is overruled.

III.

Appellant's first assignment of error states:

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GRATUITOUSLY REVERSING ITSELF AND GRANTING SUMMARY JUDGMENT TO PLAINTIFF-APPELLEE WHERE THERE EXISTED GENUINE ISSUES OF MATERIAL FACT TO PLAINTIFF-APPELLEE'S POSITION; WHERE PLAINTIFF-APPELLEE HAD NOT RAISED ITS DEFENSES WITH SPECIFICITY REGARDING LATENT DEFECT; AND WHERE THE DECISION IS UNSUPPORTED BY COMPETENT EVIDENCE, IS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE, AND IS CONTRARY TO LAW.

The trial court held that appellee was entitled to summary judgment because the latent defect and subsurface water exclusions in the Chubb QP policy barred coverage. First, we will consider whether the subsurface water exclusion, by itself, precluded recovery on the policy. Appellant alleged that negligent construction and design caused water to seep into the tunnel, and the water seepage caused the damage. While subsurface water seepage is not covered under the policy, negligent construction and design is not specifically excluded and could be considered covered. (We are not considering the latent defect exclusion for the moment.) Even if the cause nearest in point of time is not covered, recovery may still be had if the dominant cause of the loss is covered. Midwest Specialties, Inc. v. Westfield Insurance Co. (April 1, 1994), Montgomery App. No. 14027, unreported, citing Holmes v. Employer's Liability Assur. Corp. LTD (1941), 70 Ohio App. 239, Kenney v. Occidental Ins. Co. of San Francisco (1940), 66 Ohio App 284, see, also, Yunker v. Republic-Franklin Ins. Co. (1982), 2 Ohio App.3d 339, Florea v. Nationwide Mutual Fire Insurance Co. (Jan. 28, 1983), Montgomery App. No. 7908, unreported. The dominant or efficient cause of the loss is the cause which sets the other causes in motion. Id.

Here the negligent construction and design set into motion the water seepage, and was the dominant cause of...