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Stickovich v. City of Cleveland8/2/2001
rcial Union relies on a single case which it cited for the first time in its second motion for reconsideration below. The case, Buckeye Union Ins. Co. v. Zavarella (1997), 121 Ohio App.3d 147, is somewhat obscure, but distinguishable. Although Zavarella came late in the history of R.C. 2305.31, it did not mention the Supreme Court's opinion in Glaspell; did not cite, apply, or distinguish Lewis; and did not acknowledge that it marked a significant departure from 80 years of history distinguishing indemnity agreements from liability insurance contracts and twenty years of interpreting R.C. 2305.31 or that it adopted the so-called minority rule on this issue.
Since Zavarella was issued, the case has had a checkered history: To date, two cases have cited it in split opinions with dissents, and a federal magistrate declined to follow it because of its failure to distinguish liability from indemnity. As noted above, however, the Sixth Circuit, holding that the federal court should abstain from the dispute, vacated the magistrate's opinion and left the disagreement for the Ohio state courts to resolve. The Zavarella opinion is more opaque than the language of R.C. 2305.31 which it interprets and contains few of the underlying facts, so it is not helpful in understanding how to apply R.C. 2305.31 to the facts of a particular case. If read and applied as Commercial Union and the dissent suggest, Zavarella may have been wrongly decided, but, in any event, is readily distinguishable from the case at bar.
Although Zavarella and the case at bar appear superficially similar to the extent that both cases involve insurance coverage disputes after an injury on a construction site, the two cases differ markedly. Zavarella arose in a different procedural setting, with different substantive facts, and different contract language. In addition to the substantive facts, at least four significant differences are manifest. First, unlike the case at bar, the insurer issuing the additional insured endorsement in Zavarella apparently raised and, therefore, did not waive, the affirmative defense that coverage under its own liability insurance contract violated public policy. Second, Zavarella did not involve a public works bridge project a project authorized by the Ohio Constitution and Revised Code, as well as the Cleveland Charter and ordinances and a project that did not even fall within the scope of R.C. 2305.31.
Third, there were no claims of negligence against the contractor, and no other parties were involved in the Zavarella litigation to indicate that anyone other than the additional insured was negligent and caused the injury . Fourth, Zavarella did not hold that a mere allegation of negligence defeats an insurer's duty to defend an additional insured, because it expressly declined to express any opinion concerning this issue:
As an alternative ground for summary judgment, Buckeye [on behalf of the additional insured] argued that American [the insurer issuing the additional insured endorsement] breached its duty to defend. It did not separately set forth this issue as a separate argument in its merit brief, so we consider that issue waived on appeal. Hawley v. Ritley (1988), 35 Ohio St.3d 157, 159, 519 N.E.2d 390, 392-393. Id. at 152 n. 1.
In addition to these basic differences, the underlying facts of Zavarellaare also readily distinguishable from the case at bar. In Zavarella, a subcontractor's employee was injured in a fall, the circumstances of which were not described. He obtained workers' compensation benefits and lost by directed verdict on his intentional tort claim against Zavarella, the subcontractor and his employer, because there were no facts to support his inten
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