Timock v. Bolz

• Court: Ohio Court of Appeals
• Writing for the Court: O'DONNELL
• Citation: Timock v. Bolz, 115 Ohio App.3d 283, 685 N.E.2d 285 (Ohio App. 1996)
• Decision Date: 15 October 1996
• Docket Number: No. 69672,69672
• Parties: TIMOCK, Admr., v. BOLZ, Appellant; Heritage Mutual Insurance Company et al., Appellees. Eighth District, Cuyahoga County

Page 283

115 Ohio App.3d 283

685 N.E.2d 285

TIMOCK, Admr., v. BOLZ, Appellant; Heritage Mutual Insurance Company et al., Appellees.

No. 69672.

Court of Appeals of Ohio,

Eighth District, Cuyahoga County.

Decided Oct. 15, 1996.

Lawrence G. Sheehe, Jr., Cleveland, for Cheryl Timock.

Licata & Crosby Co., L.P.A., Wayne J. Belock and Ellyn T. Tamulewicz, Cleveland, for appellant.

Joseph Tira and Edward J. Stoll, Jr., Cleveland, for appellee Heritage Mutual Insurance Company.

Davis & Young Co., L.P.A., and Gregory H. Collins, Cleveland, for appellee Cincinnati Insurance Company.

O'DONNELL, Presiding Judge.

This is the second time this case has been appealed. Initially, this court remanded the matter for resolution of pending counterclaims. The trial court then dismissed all remaining claims with a nunc pro tunc judgment entry, thereby preserving for appellate review two summary judgment rulings.

The administrator of the estate of Richard Bolz now appeals from the trial court's grant of summary judgment in favor of the Heritage Mutual and Cincinnati Insurance Companies for breach of contract in denying coverage and in failing to provide a defense against a wrongful death claim filed on behalf of Richard's wife, Beverly. That claim arose from an automobile accident that occurred in Parma, Ohio on February 17, 1990, when Richard Bolz apparently lost control of the 1987 Pontiac Firebird motor vehicle he was operating and struck a tree, killing himself and his wife, who was a passenger in that vehicle. As a result of that accident, the estate of Beverly Bolz sued her husband's estate for wrongful death and also sued the Heritage and Cincinnati insurance companies for breach of contract. Richard's estate also filed cross-claims against each of the carriers, alleging entitlement to a defense to the complaint. During the pendency of this case in the trial court, Beverly's estate amended its complaint to allege uninsured-motorist claims against each carrier, and Cincinnati interpleaded $100,000 as uninsured-motorist proceeds, but maintained that it owed no duty to defend against the wrongful death liability claim.

Cincinnati Insurance then moved for summary judgment, and Heritage moved to dismiss, and the trial court granted summary judgment to both carriers, thereby determining that neither owed a duty to defend Richard's estate against the wrongful death claim of Beverly's estate.

Richard's estate now appeals the grant of summary judgment to Heritage Mutual and Cincinnati Insurance companies, alleging entitlement to a defense from each carrier, and assigns the following assignment of error:

I

"The trial court erred in granting summary judgment in favor of appellee insurance companies because the estate of Beverly Bolz's complaint and subsequent pleadings established a cause of action for which one or both appellee insurance companies owed appellant Jakob Bolz, Jr. a duty to defend."

Appellant urges that since both carriers insured the Pontiac Firebird on the accident date, each owes a duty to defend because the wrongful death complaint raises matters arguably within policy coverage.

Heritage maintains that its policy automatically terminated upon the effective date of the Cincinnati policy, and Cincinnati contends that its relative exclusion clause precludes coverage for Beverly's wrongful death. Both carriers believe that the trial court correctly granted summary judgment.

Thus, we are asked to determine whether either carrier owes a duty to defend appellant and thus whether the trial court properly granted summary judgment.

The standard of review for summary judgment has been described in Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47, where the Supreme Court held:

"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."

Further, the court in Bedel v. Univ. OB/GYN Assoc., Inc. (1991), 76 Ohio App.3d 742, 746, 603 N.E.2d 342, 345, held:

"Although the moving party under Civ.R. 56 is not obligated to negate every assertion of fact, the party seeking the summary judgment bears the initial responsibility of affirmatively demonstrating that, with respect to every essential issue of each count in the complaint, there is no genuine issue of fact. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 526 N.E.2d 798." See, also, Dresher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264, where the court reiterated these standards.

The parties to this litigation generally agree as to the facts of the case but disagree as to whether Heritage Mutual or Cincinnati Insurance Company is entitled to judgment as a matter of law. Thus, we need to review the law relative to a carrier's duty to defend against a complaint.

In Knapp v. State Farm Mut. Auto. Ins. Co. (1982), 6 Ohio App.3d 53, 453 N.E.2d 1110, the court stated in paragraph one of the syllabus:

"An insurer is required to defend a civil action against one of its insureds where the allegations of the complaint bring the action within the coverage of a policy regardless of the ultimate determination of its liability to the insured; however, where from a reading of the complaint and the policy it is clear that there is no set of facts which the plaintiff could prove under the complaint that would bring the defendant-insured within the coverage of the policy, then there is no duty to defend."

In this case the record reveals that Heritage Mutual had insured the Bolz vehicle and a current premium had been paid at the time of the accident. Further, on February 14, 1990, three days prior to the fatal accident, Cincinnati Insurance issued a new policy of insurance on that vehicle.

Heritage now argues that the automatic-termination clause in its policy ended its coverage when the Cincinnati policy became effective. That clause states:

"If you obtain other insurance on your covered auto, any similar insurance provided by this policy will terminate as to that auto on the effective date of the other insurance. See the Heritage Mutual Insurance Policy, Part F-General Provisions, Termination."

In Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St.2d 241, 374 N.E.2d 146, paragraph two of the syllabus states:

"Common words appearing in a written instrument will be given their ordinary meaning unless manifest absurdity results, or unless some other meaning is clearly evidenced from the face or overall contents of the instrument."

Considering the language in the automatic-termination provision of the Heritage policy, no manifest absurdity results from giving the words their ordinary...