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Sturt v. Grange Mutual Casualty Co.8/3/2001
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court.
JUDGMENT: Judgment affirmed.
Bryant, J.
Defendant-appellant Grange Mutual Casualty Co. ("Grange") brings this appeal from the judgment of the Court of Common Pleas of Lucas County in favor of plaintiff-appellee Donald B. and Ruth A. Sturt ("the Sturts").
On October 15, 1993, the Sturts sold their condominium to Sheila Buell ("Buell"). Buell and her two daughters, Tracie and Leslie, moved into the condominium. On October 25, 1993, Steven Whitner ("Whitner"), a resident of the adjoining condominium, entered the condominium by breaking through a common attic wall between the units and masturbated on Buell while she slept. Whitner was caught looking into Leslie's bedroom n May 29, 1994. On February 13, 1997, Whitner again entered the condominium through the attic and sexually assaulted Buell.
On October 14, 1997, Buell filed a complaint against the Sturts, among others, alleging that the Sturts had fraudulently represented or negligently represented that a firewall separated the units. Buell claimed that this representation caused her to purchase the unit and she was injured as a result of the false representation. Buell claimed that she suffered mental anguish, humiliation, emotional distress, shock, and post-traumatic stress as part of her damages. All of the claims against the Sturts arose from the sale of the condominium to Buell.
During the action, the Sturts filed a declaratory judgment action against Grange asking the trial court to find that Grange had a duty to defend and indemnify them in the Buell litigation. On February 1, 2000, the trial court granted the Sturts partial summary judgment finding that Grange had a duty to defend the Sturts in the Buell litigation. The Buell litigation was settled in May 2000. On July 18, 2000, the Sturts filed a motion for attorney's fees and expenses against Grange. The trial court granted fees and expenses for the Buell litigation, but denied fees for the declaratory judgment action. It is from these judgments that Grange appeals.
Grange raises the following assignments of error.
The trial court erred in denying Grange's motion for summary judgment and in granting the Sturts' motion for partial summary judgment thereby determining that Grange owed appellees a duty to defend them in [the Buell litigation].
In the alternative, the trial court erred in its calculation of the amount of attorneys' fees and expenses it awarded to the Sturts as a result of Grange's failure to defend them in [the Buell litigation].
In its answer, the Sturts raised the following assignments of error on cross-appeal.
The trial court erred in permitting R.C. 2721.16 to be retroactively applied in violation of Art. II, ยง 28 of the Ohio Constitution.
Assuming R.C. 2721.16 may be retroactively applied, the trial court erred in failing to award attorney fees and expenses incurred prior to the effective date of R.C. 2721.16.
In the first assignment of error, Grange argues that the trial court should have found that it had no duty to defend the Sturts in the Buell litigation.
Where the insurer's duty to defend is not apparent from the pleadings in the action against the insured, but the allegations do state a claim which is potentially or arguably within the policy coverage, or there is some doubt as to whether a theory of recovery within the policy coverage has been pleaded, the insurer must accept the defense of the claim. Sanderson v. Ohio Edison Co. (1994), 69 Ohio St.3d 582, 585-86, 635 N.E.2d 19, 23, (citing Willoughby Hills v. Cincin
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