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Aubin v. Metzger9/29/2003
JUDGMENT: Judgment affirmed.
. Although originally placed on our accelerated calendar, we have elected, pursuant to Loc.R. 12(5), to issue a full opinion in lieu of a judgment entry.
. Plaintiff-Appellant, Robert Aubin, appeals from a decision of the Court of Common Pleas of Allen County granting summary judgment to Intervenor-Appellee, Indiana Insurance Company ("Indiana"). Aubin claims that he has a right of action against Titus Snavely, d.b.a. the Crab Shack, under a business invitee liability theory. He further maintains that this right of action is outside of the scope of Indiana's liquor liability exclusion. Thus, Aubin argues, Indiana should be required to indemnify Snavely for losses occurring under the business invitee theory. Because Aubin must proceed under Ohio's dram shop statutes, and because Snavely's insurance policy does not provide coverage for acts based upon these statutes, we affirm the trial court's judgment.
. In March 2000, Aubin suffered severe injuries when he was attacked by Jason Metzger while playing pool at the Crab Shack and Tavern ("Crab Shack"). Subsequently, Aubin brought suit against both Metzger and the owner of the Crab Shack, Titus Snavely. At the time of the attack Snavely carried liability insurance through a policy underwritten by Indiana. The policy contained a liquor liability exclusion that stated:
. This insurance does not apply to:
* * * a. Liquor Liability
"Bodily Injury" or "property damage" for which any insured may be held liable by reason of: (1)Causing or contributing to the intoxication of any person; (2)The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or (3)Any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages.
. After the commencement of this suit, Indiana moved for and was granted leave to intervene. Thereafter, Indiana filed a motion for summary judgment maintaining that they had no duty to indemnify or defend Snavely, because all of Aubin's claims against Snavely fell under the liquor liability exclusion of the insurance policy. Aubin did not file a response to Indiana's motion for summary judgment, and the trial court granted the motion, ruling that Indiana had no duty to either indemnify or defend Snavely.
. Aubin appeals from this judgment presenting the following single assignment of error for our review.
The trial court erred in granting the motion for summary judgment filed by Intervenor Indiana Insurance Company finding that no coverage exists as a matter of law as to the causes of action set forth in Plaintiffs/Appellants' complaint.
. Aubin asserts that summary judgment was not proper because Snavely's liability under a business invitee theory is not included within Indiana's liquor liability exclusion clause. Standard of Review
. An appellate court reviews a summary judgment order de novo. Accordingly, a reviewing court will not reverse an otherwise correct judgment merely because the lower court utilized different or erroneous reasons as the basis for its determination. Summary judgment is appropriate when, looking at the evidence as a whole: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) construing the evidence most strongly in favor of the nonmoving party, it appears that reasonable minds could only conclude in favor of the moving party. If any doubts exist, the issue must be resolved in favor of the nonmoving party.
. The party moving f
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