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Ohio Bar Liability Insurance Co. v. Hunt3/21/2003
Rendered on the 21st day of March, 2003.
. Plaintiff-appellants Dru Pollard, individually and as Tammi Stamm's parent, and Robert Stamm ("the Pollards") appeal from a summary judgment rendered against them and in favor of defendant-appellee Ohio Bar Liability Insurance Company ("OBLIC") on their claims stemming from alleged malpractice on the part of their former attorney, Richard M. Hunt. The Pollards contend that the trial court erred by granting summary judgment to OBLIC, instead of in their favor, for three reasons. First, they claim that the trial court erred by finding that Hunt had failed to give his insurance company sufficient notice of a potential malpractice claim during the policy period to ensure coverage. Next, they argue that Hunt's assignment of his bad-faith claim against OBLIC to them was effectual under the terms of the policy. Finally, the Pollards assert that the trial court failed to allow them to respond to OBLIC's memorandum in opposition to their motion for summary judgment before rendering judgment on the cross-motions for summary judgment.
. We conclude that the policy's notice provisions are ambiguous on the issue of whether oral notice of a malpractice claim, which Hunt claims to have given to OBLIC, is sufficient, so that the trial court erred by granting summary judgment to OBLIC. Because there is a genuine issue of fact whether Hunt orally notified OBLIC of this claim during the policy period, the trial court did not err by refusing to grant summary judgment to the Pollards.
. Additionally, we conclude that the policy does not preclude Hunt's assignment of his bad-faith claim against the insurance company to the Pollards. Nonetheless, based upon the facts in this record, we conclude that the Pollards have not set forth sufficient facts to establish the bad-faith claim. Because the trial court ruled on the cross-motions for summary judgment before the Pollards' reply was due, the Pollards should be afforded the opportunity to present evidence, in accordance with Civ. R. 56, to establish a genuine issue of material fact on the bad-faith claim. Accordingly, the judgment of the trial court is reversed, and this cause is remanded for proceedings consistent with this opinion.
I.
. The Pollards fired their attorney, Hunt, after he failed to timely appeal from an adverse judgment on their daughter's personal injury negligence claim. Hunt asserts that he then called OBLIC, his malpractice carrier, to alert the company to a potential claim regarding the matter. The Pollards eventually sued Hunt for malpractice in 1996. Hunt neglected to forward a copy of the complaint against him, or to provide written notice of it, to OBLIC until four years later, when Hunt's attorney, John Smalley, wrote to OBLIC regarding the complaint. OBLIC ultimately denied coverage.
. Six months after Hunt and the Pollards alerted OBLIC that they would enter into a consent judgment if OBLIC failed to appear in the malpractice action between them, the trial judge in that case approved a settlement and entered judgment against Hunt for $750,000. Under the terms of this settlement, Hunt paid the Pollards only $4,000, but assigned his bad-faith claim against OBLIC to them in exchange for their agreement to satisfy the remainder of the judgment by seeking a judgment against OBLIC instead of him.
. The Pollards then brought this action against OBLIC under R.C. 3929.06 to enforce the consent judgment, seeking damages for OBLIC's failure to defend and to indemnify Hunt against the malpractice claim brought by the Pollards. The Pollards also asserted a bad-faith claim against the insurance company as Hunt's assignees. Meanw
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