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Sanchez v. Davoudi8/15/2001
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court. JUDGMENT: Judgment affirmed.
Defendants-Appellants, Dr. Ali M. Davoudi and Davoudi Chiropractic Office, Inc. ("Appellants"), appeal from the judgment entry of the Allen County Court of Common Pleas granting summary judgment in favor of Third Party Plaintiff-Appellee, National Mutual Insurance Company. The court also denied the Appellants' motion for summary judgment. Because there is no genuine issue of material fact remaining to be resolved, in that only intentional acts and their intended or substantially certain results are the subject of the underlying litigation, the trial court properly entered summary judgment for the insurers.
In the case below, Plaintiffs, Karinda and Jesse Sanchez, allege in their complaint that the appellants intentionally engaged in sexual harassment; intentionally and negligently created a hostile work environment; engaged in retaliatory conduct; intentionally inflicted emotional distress on the plaintiffs; negligently failed to provide a safe and sexual harassment free workplace; and negligently failed to refrain from conduct which resulted in Karinda Sanchez working in a sexual harassment filled, hostile and unsafe work environment. Dr. Davoudi tendered the defense of the underlying suit to his personal insurance carrier, National Mutual. National Mutual filed a declaratory judgment action seeking a declaration that it owed no duty to defend Dr. Davoudi. By judgment entry dated January 30, 2001, the court below granted Third Party Plaintiff, National Mutual Insurance Company's, motion for summary judgment on the issue of insurance coverage.
From the trial court's declaration, appellants bring this appeal based on the following assignment of error.
ASSIGNMENT OF ERROR
The court erred in granting the third party plaintiff, National Mutual Insurance Company's motion for summary judgment and denying the motion for summary judgment of the defendants, Dr. Ali M. Davoudi, et al.
In their sole assignment of error, Appellants contend that the trial court erred by issuing a summary judgment in favor of National Mutual on the grounds that the insurance policy held by Appellants does not cover intentional acts. Appellants categorically deny that Plaintiff's claims of sexual harassment took place and argue that until the allegations within the complaint are proven groundless, National Mutual has a duty to defend.
Our analysis of an appeal from summary judgment is conducted under a de novo standard of review. In Horton v. Harwick Chem. Corp. , the Ohio Supreme Court held that summary judgment is proper "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) it appears from the evidence, construed most strongly in favor of the nonmoving party, that reasonable minds could only conclude in favor of the moving party."
Appellants rely on City of Willoughby Hills v. Cincinnati Insurance Company to support their position that the claim against them falls within the insurance policy held by them with National Mutual. In Willoughby Hills, the Ohio Supreme Court held that where the insurer's duty to defend is not apparent from the pleadings against the insured, but the allegations state a claim which potentially could be within policy coverage, the insurer must accept defense of the claim. Therefore, in the present case, in order to affirm the trial court's decision, we must be convinced that Appellants' allegations do not even arguably fall within National Mutual's insurance policy.
Contra
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