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Britton v. Smythe9/21/2000
h plaintiff and, while stressing that it would continue to represent her at the trial, told her it believed that Lamb's fraud allegations fell within an exclusion to the indemnity provisions of the legal defense program pertaining to fraud, dishonesty, criminal acts, license law or ethics violations * * *. Smythe, Cramer memorialized the discussion at that meeting in a January 4, 1996 letter from its general counsel to plaintiff. The letter stated that the "primary purpose" of the December 13, 1995 meeting "was to discuss the internal issue of whether the claim would be 'covered' pursuant to Smythe, Cramer Co.'s Realtor Legal Defense Program." The letter went on to state that "these internal issues are still being reviewed by Senior Management and myself * * *." The letter concluded by noting the "internal issues" were unrelated to Smythe, Cramer's legal representation, but that plaintiff "as an individual defendant may wish and are entitled to retain independent legal counsel. If you do not retain counsel, Smythe, Cramer Co. will continue to provide you with representation * * *."
Plaintiff responded with her own letter in which she told Smythe, Cramer she believed the primary negligence in this case was the mishandling by Smythe, Cramer personnel, rather than by any intentional act of my mine.
Smythe, Cramer responded to plaintiff on January 8, 1996, by pointing to evidence produced during discovery that suggested plaintiff may not have been forthcoming with the facts when asking its president to extend coverage under the legal defense program. Smythe, Cramer claimed it learned that plaintiff had possession of the engineering report prior to selling the house to Lamb, but did not mention that fact to its president when asking for retroactive coverage under the legal defense program. The letter also stated:
In conclusion, the evidence gleaned through discovery demonstrates that you intentionally concealed the written report. Further, it appears that you engaged in a continued course of misrepresentation by personally altering the handouts. It is Smythe, Cramer Co.'s conclusion that these actions are fraudulent, dishonest, and a violation of Ohio Real Estate license law. These activities are not autho- rized or condoned in any way by Smythe, Cramer Co.
At that point, plaintiff retained her own counsel for trial. Trial commenced just four weeks later on February 6, 1996. A jury awarded Lamb damages of $150,000 -- $90,000 against plaintiff and $60,000 against Smythe, Cramer.
Plaintiff did not appeal the judgment against her. When Lamb sought to execute on the judgment, plaintiff contacted Smythe, Cramer and requested that it pay the judgment. When Smythe, Cramer refused, plaintiff satisfied the judgment and brought this action for a declaratory judgment seeking a determination of her rights under the legal defense program. Upon cross-motions for summary judgment, the court ultimately found for Smythe, Cramer on all claims.
I.
The primary issue in this case concerns the effect of Smythe, Cramer's reservation of its rights under the legal defense program and the timeliness of that reservation of rights. In framing the issue in these terms, we acknowledge as the parties do, that there is no analogous reported law governing this issue, so general principles of contract law apply to the application of the legal defense program. See Appellee's Brief at 39. Because this is a matter concerning the construction of a written contract, we review the legal defense program as a matter of law. See Alexander v. Buckeye Pipeline Co. (1978), 53 Ohio St.2d 241, paragraph one of the syllabus; Inland Refuse Transfer Co. v. Browning-Ferris Indus. o
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