Erie Insurance Group v. Grange Mutual Casualty Co.

889 N.E.2d 585, 176 Ohio App. 3d 7, 2008 Ohio 1295
CourtOhio Court of Appeals
DecidedMarch 21, 2008
DocketNo. WD-07-051.
StatusPublished
Cited by1 cases

This text of 889 N.E.2d 585 (Erie Insurance Group v. Grange Mutual Casualty Co.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Erie Insurance Group v. Grange Mutual Casualty Co., 889 N.E.2d 585, 176 Ohio App. 3d 7, 2008 Ohio 1295 (Ohio Ct. App. 2008).

Opinion

Singer, Judge.

{¶ 1} Appellants appeal a summary judgment granted by the Wood County Court of Common Pleas to the issuer of a homeowner’s insurance policy in a coverage dispute. For the reason that follow, we affirm.

{¶ 2} On January 12, 2001, Anthony Mericle and Jennifer Nahorny leased an apartment at Riverview Apartments in Rossford, Ohio. Riverview is owned by appellant Oak Hill Investment Company. Christine Besozzi was cosigner for the tenants, guaranteeing the terms of the lease. One of these terms was an obligation to “return said premises to lessor, or agent, in the same condition of repair as when received,* * * reasonable wear and tear excepted.”

{¶ 3} On April 26, 2001, there was a fire at Mericle and Nahorny’s apartment. The cause of the fire was determined to be the tenants’ negligence. Damages were later set at $87,645.38, all but $1,000 of which was paid to appellant Oak Hill by appellant Erie Insurance Group under Oak Hill’s casualty policy.

{¶ 4} On April 5, 2005, appellants sued Nahorny and Besozzi 1 to recover damages: Nahorny for negligence and breach of contract and Besozzi on her guarantee of Nahorny’s liability. When Nahorny failed to answer, appellants *9 obtained a default judgment against her. Besozzi sought, but was denied, defense and indemnification against appellants’ claim from the issuer of her own homeowner’s insurance policy, appellee Grange Mutual Casualty. Besozzi, nevertheless, provided her own defense.

{¶ 5} Eventually Besozzi negotiated an agreement with appellants. Besozzi agreed to consent to a judgment against her in the full amount sought. Appellants would then directly pursue a claim against appellee pursuant to R.C. 3929.06(A)(2). If the claim was unsuccessful, appellants agreed to cap Besozzi’s liability at $5,000.

{¶ 6} Following the agreed judgment entry, appellants filed a supplemental complaint against appellee, seeking compensation under Besozzi’s policy. Appellee denied liability, asserting that the damages for which Besozzi was legally responsible were for breach of contract which was not a covered “occurrence” under the policy.

{¶ 7} The matter was submitted to the court on cross-motions for summary judgment. On August 6, 2006, without explanation, the court denied appellants’ motion and granted appellee’s. From this judgment, appellants now bring this appeal, setting forth the following two assignments of error:

{¶ 8} “Assignment of Error No. 1

{¶ 9} “The trial court erred in overruling appellants’ motion for summary judgment, because the Grange Insurance Contract provides coverage for appellants’ judgment against Grange’s insured, Besozzi.

{¶ 10} “Assignment of Error No. 2

{¶ 11} “The trial court erred in sustaining Grange’s motion for summary judgment, because appellants’ claims constituted an ‘occurrence’ under the Grange insurance contract.”

{¶ 12} We shall discuss appellants’ assignments of error together.

{¶ 13} Civ.R. 56(C) provides that summary judgment may be granted only if (1) no genuine issue of material fact remains to be litigated, (2) it appears from the evidence that reasonable minds can reach but one conclusion and that conclusion is adverse to the nonmoving party, and (3) the moving party is entitled to summary judgment as a matter of law. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 364 N.E.2d 267. In this matter, there is no factual dispute, only an issue as to the proper legal construction of the homeowner’s insurance policy issued by appellee to Besozzi.

{¶ 14} Ordinarily, the construction of an insurance policy, like any written contract, is a matter of law, Long Beach Assn., Inc. v. Jones (1998), 82 Ohio St.3d 574, 576, 697 N.E.2d 208, citing Inland Refuse Transfer Co. v. *10 Browning-Ferris Industries (1984), 15 Ohio St.3d 321, 322, 15 OBR 448, 474 N.E.2d 271, subject to certain well-established rules. Gomolka v. State Auto. Mut. Ins. Co. (1982), 70 Ohio St.2d 166, 167, 24 O.O.3d 274, 436 N.E.2d 1347. Words and phrases are to be given their ordinary meaning unless something in the contract indicates a contrary intention. Olmstead v. Lumbermens Mut. Ins. Co. (1970), 22 Ohio St.2d 212, 216, 51 O.O.2d 285, 259 N.E.2d 123. Where the terms of an insurance policy are clear and unambiguous, they must be applied as written and not enlarged. Gomolka at 168, 24 O.O.3d 274, 436 N.E.2d 1347. However, “[w]here provisions of a contract of insurance are reasonably susceptible of more than one interpretation, they will be construed strictly against the insurer and liberally in favor of the insured.” King v. Nationwide Ins. Co. (1988), 35 Ohio St.3d 208, 519 N.E.2d 1380, syllabus.

{¶ 15} At the time relevant to this appeal, Christine Besozzi was a named insured in a homeowner’s policy that included $300,000 of personal-liability protection per occurrence. The coverage portion of this part of the policy provided:

{¶ 16} “We will pay all sums, up to our limits of liability, arising out of any one loss which an insured person becomes legally obligated to pay as damages because of bodily injury or property damage, caused by an occurrence covered by this policy * *

{¶ 17} In the definitions portion of the policy, an “occurrence” is defined as,

{¶ 18} “ * * * an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results in bodily injury or property damage during the policy period[.]”

{¶ 19} “ ‘Property damage’ means physical injury to or destruction of tangible property, including loss of its use[.]”

{¶ 20} The policy contains numerous exclusions, the only one of which is arguably applicable in this matter, excludes coverage for “[bjodily injury or property damage arising out of any premises owned, rented or controlled by an insured person which is not an insured premises.”

{¶ 21} Appellee argues that appellants are not entitled to coverage under the policy because the claim against Besozzi was not an “occurrence” within the contemplation of the insurance agreement. Citing Personal Serv. Ins. Co. v. Ferrell (Mar. 9, 1979), 6th Dist. No.

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Bluebook (online)
889 N.E.2d 585, 176 Ohio App. 3d 7, 2008 Ohio 1295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/erie-insurance-group-v-grange-mutual-casualty-co-ohioctapp-2008.