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State Housing Authority Risk Pool Association12/30/2004
{ } Appellant/cross-appellee, State Housing Authority Risk Pool Association, Inc. ("SHARP") appeals the decision of the Portage County Court of Common Pleas granting appellee/cross-appellant, Erie Insurance Group ("Erie") summary judgment. Erie cross appeals the denial of summary judgment by the same court in a prior judgment entry.
{ } SHARP and Erie each insured the Portage Metropolitan Housing Authority ("PMHA") at different times under separate insurance contracts. The current appeal is a result of a lawsuit in which SHARP sought the trial court to compel Erie to pay attorney fees and costs incurred by SHARP in defending two previous lawsuits filed against PMHA by LRL Properties ("LRL").
{ } On October 21, 1992, LRL filed its first suit against PMHA in federal court. The evidence is undisputed that PMHA notified SHARP of the federal suit, who retained legal representation to defend PMHA; On December 20, 1992, SHARP's counsel filed a Civ.R. 12(b)(6) motion to dismiss for failure to state a claim. On March 15, 1993, the district court granted the motion and dismissed LRL's complaint. Subsequent to this dismissal, on or about May 24, 1993, PMHA notified Erie of the federal lawsuit. At this time, the case was on appeal to the Sixth Circuit Court of Appeals.
{ } According to an affidavit filed by David Froelich, claims manager for Erie, PMHA agreed "that it would not pursue a coverage determination or defense from Erie *." Instead, "PMHA would continue to rely on the defense already being provided by [SHARP]." Froelich further testified: "Erie reiterated its offer to assist in defending the federal appeal, but PMHA did not respond or request such assistance."
{ } On February 1, 1994, LRL filed a second complaint against PMHA in state court. In its state lawsuit, LRL alleged, inter alia, various intentional torts including defamation, conspiracy to defame, fraud, and interference with business relations.
LRL's claims were grounded on its assertion that PMHA and its commissioners "willfully" conspired and engaged in a "course of conduct maliciously calculated to injure" the plaintiffs.
{ } On March 9, 1994, Erie agreed to defend PMHA in the state case subject to a reservation of Erie's right to withdraw the defense in the event evidence established the Erie policy did not cover the claims. According to Froelich, Erie advised PMHA and SHARP that, pursuant to its policy, it would defend the state case through defense counsel of its own choosing. Erie appointed counsel, Attorney Richard Boyce, to participate in PMHA's defense. According to his affidavit, Attorney Boyce "attended status conferences and pretrials, drafted discovery, attended depositions, and otherwise participated in the litigation. I also cooperated in the defense with counsel appointed by [SHARP]."
{ } On June 12, 1998, the Portage County Court of Common Pleas granted summary judgment in PMHA's favor, concluding that PMHA was immune from LRL's intentional tort claims and LRL's action was barred by the relevant statute of limitations. On December 20, 1999, this court affirmed the trial court's decision regarding the intentional tort claims but remanded the case for further proceedings on LRL's breach of contract claim. See, LRL Properties v. Portage Metropolitan Housing Authority (Dec. 17, 1999), 11th Dist. No. 98-P-0070,1999 Ohio App. LEXIS 6130. Erie subsequently advised PMHA it was withdrawing its defense pursuant to its reservation of rights.
{ } On February 7, 2001, the trial court granted summary judgment in PMHA's favor which was affirmed by this court in LRL Properties v. Portage Metropolitan Housing Authority (June 7, 2002), 11th D
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