Nationwide Mutual Fire Insurance v. Wittekind

730 N.E.2d 1054, 134 Ohio App. 3d 285, 1999 Ohio App. LEXIS 4205
CourtOhio Court of Appeals
DecidedSeptember 7, 1999
DocketNo. 99CA11.
StatusPublished
Cited by10 cases

This text of 730 N.E.2d 1054 (Nationwide Mutual Fire Insurance v. Wittekind) 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
Nationwide Mutual Fire Insurance v. Wittekind, 730 N.E.2d 1054, 134 Ohio App. 3d 285, 1999 Ohio App. LEXIS 4205 (Ohio Ct. App. 1999).

Opinion

Harsha, Judge.

The family and estate of James Bobby McGinnis appeal the grant of summary judgment to appellee, Nationwide Mutual Fire Insurance Company (“Nationwide”), and assign the following errors:

*287 First Assignment of Error

“The lower court erred in granting summary judgment in favor of PlaintiffAppellee, Nationwide Mutual Fire Insurance Company, on the ground that evidence submitted in support of such motion by such plaintiff-appellee was insufficient and unacceptable pursuant to Rule 56(E) of the Ohio Rules of Civil Procedure. * * *”

Second Assignment of Error

“The lower court erred in finding that an incident involving the operation of a rented jet ski by Defendant Jeremy Wittekind as an insured was excluded from coverage under a policy of insurance of Plaintiff-Appellee, Nationwide Mutual Fire Insurance Company, on the ground that the word ‘watercraft’ as applied to a jet ski for purposes of invoking such exclusion is ambiguous as used therein.”

James Bobby McGinnis was killed when a jet ski 1 operated by seventeen-year-old Jeremy Wittekind collided with the jet ski on which James was a passenger. Jeremy’s parents, Roger and Jane Wittekind, had a homeowner’s policy with Nationwide that provided some insurance for personal liability, but contained the following exclusion:

“1. Coverage E-Personal Liability, and Coverage F-Medical Payments to Others do not apply to bodily injury or property damage:
^
“e. arising out of the ownership maintenance, or use of:
“(3) a watercraft owned by or rented to an insured:
“(a) if the watercraft has inboard or inboard-outdrive motor power of more than 50 horsepower.”

Appellee filed a complaint seeking a declaratory judgment that it did not owe any coverage to the Wittekinds under the policy for claims arising out of the death of James Bobby McGinnis. The family and estate of James Bobby McGinnis were also named as defendants. The Wittekinds counterclaimed against Nationwide seeking a declaratory judgment that Nationwide owed a legal defense to them in any wrongful death action filed by the beneficiaries of James Bobby McGinnis and must pay up to the policy limits if a judgment is entered against them. Nationwide then filed for summary judgment on the basis that liability arising out of Jeremy’s use of the jet ski was excluded under the policy.

*288 Nationwide attached an affidavit of its claim representative, Conway Miller, to its motion for summary judgment. It states:

“Now comes Conway Miller, being first duly sworn and cautioned according to law and states as follows:

“1. That he has personal knowledge of the contents of his Affidavit, based upon his investigation, except where otherwise noted.
;¡í *
“3. That he investigated the accident involving Jeremy Wittekind at Barefoot Landings Water Sports on July 24,1996.
$ *
“5. That Jeremy Wittekind was operating a Sea-Doo GTS model watercraft at the time of the July 24, 1996 accident, which was powered by 60 hp rotex marine plant, according to the advertising literature he obtained from Barefoot Landings.”

Attached to the affidavit were advertisements for Barefoot Landings that described the jet skis as having sixty horsepower and the technical data of the Sea-Doo GTS model watercraft that described a sixty-horsepower power plant. In response, the Wittekinds filed for summary judgment on the issue of Nationwide’s duty to defend them. The trial court granted Nationwide’s motion and denied the Wittekinds’ motion.

In both of their assignments of error appellants assert that the trial court erred in granting Nationwide’s motion for summary judgment. In reviewing a summary judgment, the lower court and the appellate court utilize the same standard, i.e., we review the judgment independently and without deference to the trial court’s determination. Midwest Specialties, Inc. v. Firestone Co. (1988), 42 Ohio App.3d 6, 8, 536 N.E.2d 411, 413-414. Summary judgment is appropriate when the following have been established: (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, that party being entitled to have the evidence construed most strongly in its favor. Bostic v. Connor (1988), 37 Ohio St.3d 144, 146, 524 N.E.2d 881, 884; cf., also, State ex rel. Coulverson v. Ohio Adult Parole Auth. (1991), 62 Ohio St.3d 12, 14, 577 N.E.2d 352, 353-354; Civ.R. 56(C). The burden of showing that no genuine issue exists as to any material fact falls upon the moving party in requesting summary judgment. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801. Additionally, a motion for summary judgment forces the nonmoving party to produce evidence on any issue for which (1) that party bears *289 the burden of production at trial, and (2) for which the moving party has met its initial burden. See Dresher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264; Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus; and Stewart v. B.F. Goodrich Co. (1993), 89 Ohio App.3d 35, 623 N.E.2d 591.

In their first assignment of error, appellants argue that the affidavit filed in support of appellee’s motion for summary judgment was insufficient to support the trial court’s ruling. At the core of this argument is the assertion that Miller’s statement in his affidavit that the jet ski that Jeremy Wittekind was operating had a sixty-horsepower capability was not based upon personal knowledge. However, appellants failed to object to the affidavit attached to appellee’s motion for summary judgment. Failure to object to the court’s consideration of the evidence submitted in support of a motion for summary judgment constitutes waiver of any alleged error in the consideration of the evidence. Stegawski v. Cleveland Anesthesia Group, Inc.

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Cite This Page — Counsel Stack

Bluebook (online)
730 N.E.2d 1054, 134 Ohio App. 3d 285, 1999 Ohio App. LEXIS 4205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nationwide-mutual-fire-insurance-v-wittekind-ohioctapp-1999.