Cincinnati Insurance v. Anders

789 N.E.2d 1094, 99 Ohio St. 3d 156
CourtOhio Supreme Court
DecidedJune 25, 2003
DocketNos. 2002-0248 and 2002-1030
StatusPublished
Cited by56 cases

This text of 789 N.E.2d 1094 (Cincinnati Insurance v. Anders) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cincinnati Insurance v. Anders, 789 N.E.2d 1094, 99 Ohio St. 3d 156 (Ohio 2003).

Opinion

Moyer, C.J.

I. Facts

A. Cincinnati Insurance Company v. Anders

{¶ 1} Appellants, Roger and Jenny Hastings, appeal from the judgment of the Greene County Court of Appeals affirming the trial court’s declaratory judgment in favor of appellee, Cincinnati Insurance Company (“CIC”).

{¶ 2} This case is related to a complaint filed by Jeffrey and Julie Anders against the Hastingses, alleging that the Hastingses failed to disclose structural, electrical, mechanical, and plumbing defects in the home they sold to the Anderses. The only damage the Anderses put at issue in the appeal was [157]*157allegedly caused by installation of fiberglass insulation with the vapor barrier on the wrong side, leading to the eventual deterioration of the floor joists.

{¶ 3} The Hastingses requested that their insurer, CIC, provide them with legal representation pursuant to their homeowner’s insurance policy and its umbrella endorsement. After considering the complaint against the Hastingses, CIC refused to provide a defense against any of the Anderses’ nine claims. Thereafter, the trial court granted the Hastingses’ motion for summary judgment with respect to all of the Anderses’ claims except those for breach of contract and unjust enrichment.

{¶ 4} CIC then filed a complaint in the Common Pleas Court of Greene County for declaratory judgment against both the Hastingses and the Anderses, seeking a determination that it was not required under the homeowner’s policy with its umbrella endorsement to defend the Hastingses against the claims of the Anderses. The Hastingses filed a counterclaim for a declaration that they had a right to a defense on the claim of negligent misrepresentation in the underlying action as well as a claim for bad faith. The trial court declared that neither the basic homeowner’s policy nor its liability umbrella endorsement required CIC to provide a defense against any of the claims asserted by the Anderses against the Hastingses.

{¶ 5} The Court of Appeals for Greene County affirmed, holding that “the Anders’ [sic] claims against the Hastings [sic] were not arguably or potentially within the scope of the policy, and CIC did not have a duty to defend.” Thereafter, the court of appeals recognized that this holding was in conflict with Spalding v. Aetna Cas. & Sur. Co. (Oct. 11, 1994), Stark App. No. CA 9429, 1994 WL 590438. Accordingly, on March 20, 2002, we determined that a conflict existed and ordered the parties to brief the following issue:

{¶ 6} “Whether insurance policies covering personal injuries arising out of property damage provide coverage to homeowners who are sued for their negligent failure to disclose to purchasers damage to the property that occurred during the sellers’ occupancy.”

{¶ 7} This cause is now before this court upon our determination that a conflict exists.

B. GuideOne Mutual Insurance Company v. Reno

{¶ 8} Appellants, Lee and Melanie Reno, appeal from the judgment of the Greene County Court of Appeals affirming a declaratory judgment by the Common Pleas Court of Greene County in favor of appellee, GuideOne Mutual Insurance Company (“GuideOne”).

{¶ 9} In 1998, Jeffrey Cooper purchased a home from the Renos, which he later alleged had extensive structural damage caused by termite infestation. [158]*158Cooper sued the Renos, asserting claims of intentional fraudulent misrepresentation and concealment, negligent or reckless misrepresentation, and civil conspiracy to conceal.

{¶ 10} The Renos owned a homeowner’s insurance policy issued by GuideOne. Counsel for the Renos sent GuideOne a letter asking GuideOne to provide a legal defense for the Renos against Cooper’s claims. GuideOne began investigating the matter and soon informed the Renos that it had retained counsel to represent them in the Cooper case. Within three weeks, however, GuideOne also sent a “reservation of rights” letter to the Renos, emphasizing that it was not waiving its right to deny coverage and concluding on available information that despite its previous correspondence, it had no duty to defend the Renos against Cooper’s claims.

{¶ 11} GuideOne filed a complaint for a declaratory judgment that its policy issued to the Renos created no legal duty to defend against the Cooper claims. The declaratory judgment action was consolidated with Cooper’s underlying action against the Renos, and the trial court granted GuideOne’s motion for summary judgment in the declaratory judgment action.

{¶ 12} The Renos appealed, and the Greene County Court of Appeals affirmed, stating that “the claims for which GuideOne’s policy provides coverage must arise out of a negligent act or omission of the Renos that causes the property damage alleged, and that’s not what Cooper alleged in his lawsuit against the Renos.”

{¶ 13} The Greene County Court of Appeals certified the same issue that it had certified in Cincinnati Ins. Co. v. Anders, and we accepted jurisdiction and consolidated the cases for disposition.

II. Analysis

{¶ 14} The certified question is, “Whether insurance policies covering personal injuries arising out of property damage provide coverage to homeowners who are sued for their negligent failure to disclose to purchasers damage to the property that occurred during the sellers’ occupancy.” We answer this question in the negative.

{¶ 15} The insurance policies at bar provided that if suit were brought against an insured for damages to a third party arising from an “occurrence,” the insurer would provide the policy holder with a legal defense.

{¶ 16} The certified question requires us to determine the scope of the coverage provided by the insurance policies and whether the claims against the insureds are included in the coverage. We have previously analyzed similar insurance policies to determine an insurer’s duty to defend.

{¶ 17} In Motorists Mut. Ins. Co. v. Trainor (1973), 33 Ohio St.2d 41, 62 O.O.2d 402, 294 N.E.2d 874, this court held that under a liability insurance policy the [159]*159scope of the allegations in the complaint against the insured determines whether an insurance company has a duty to defend the insured. We held that “where the complaint brings the action within the coverage of the policy the insurer is required to make defense, regardless of the ultimate outcome of the action or its liability to the insured.” Id. at paragraph two of the syllabus.

{¶ 18} We expanded on Motorists in Willoughby Hills v. Cincinnati Ins. Co. (1984), 9 Ohio St.3d 177, 9 OBR 463, 459 N.E.2d 555, stating that “the duty to defend need not arise solely from the allegations in the complaint but may arise at a point subsequent to the filing of the complaint.” Id. at 179, 9 OBR 463, 459 N.E.2d 555. Where the allegations state a claim that falls either potentially or arguably within the liability insurance coverage, the insurer must defend the insured in the action. Id. at 180, 9 OBR 463, 459 N.E.2d 555

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Cite This Page — Counsel Stack

Bluebook (online)
789 N.E.2d 1094, 99 Ohio St. 3d 156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cincinnati-insurance-v-anders-ohio-2003.