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Stickovich v. City of Cleveland8/2/2001
pp.3d 199, 202 (holding that the unloading of firearm before entering a vehicle was covered by both the homeowner's and automobile insurance policies because the injury from discharge of the weapon arose out of the use of personal property and out of the use of the vehicle.) The term arising out of does not require that the conduct be the proximate cause of the injury, only that it be causally related. Under the circumstances, CommercialUnion has not shown the trial court erred by concluding it had a duty to defend or to conditionally pay any damages in the case at bar. Duty To Defend
It is well established, contrary to Commercial Union's argument, that insurers are required to provide a defense when allegations are arguably or potentially within the policy coverage or when there is some doubt as to whether they state a theory of recovery within the scope of the policy. Both Lewis v. Ohio Edison and Washington Cty. Fair cite Willoughby Hills v. Cincinnati Ins. Co. (1984), 9 Ohio St.3d 177, for this precise proposition:
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. Id. at syllabus.
Under the circumstances, the claims by the workers, crane manufacturer,and lessor in the case at bar were sufficient, or at least sufficiently ambiguous, to require a defense. Lewis quoted Willoughby at length concerning the insurer's duty to defend claims against a utility by a contractor's employee injured by electricity adjacent to a worksite while he was performing the work as in the case at bar:
The Ohio Supreme Court went on to say, at pages 179-180:
* For instance, in Allen v. Standard Oil Co. (1982), 2 Ohio St.3d 122, this court held that, in the context of an indemnification agreement, the duty to defend could attach at some later stage in the litigation despite the fact that the pleadings did not conclusively establish the duty.
The rationale for the rule was stated in Milliken, supra (Millken v. Fidelity & Cas. Co. of N.Y. [C.A. 10, 1964], 338 F.2d 35), at page 40, as follows:
The reason for this rule is that ` * under the Federal Rules of Civil Procedure the dimensions of a lawsuit are not determined by the pleadings because the pleadings are not a rigid and unchangeable blueprint of the rights of the parties. *'
Further, in Solo Cup Co. v. Federal Ins. Co. (C.A.7, 1980), 619 F.2d 1178, the court stated at 1185:
` * especially since the advent of notice pleading, in a case where there is some doubt as to whether a theory of recovery within the policy coverage has been pleaded in the underlying complaint, the insurer must defend, and its defense obligations will continue until such time as the claim against the insured is confined to a recovery that the policy does not cover.' See, also, Hagen Supply Corp. v. Iowa National Mut. Ins. Co. (C.A.8, 1964), 331 F.2d 199, 204.
Like the federal system, Ohio has embraced notice pleading through adoption of the Ohio Rules of Civil Procedure. See Civ.R. 8(A) and (E). No longer must a complaint set forth specific factual allegations. All that Civ.R. 8(A) requires is ` * (1) a short and plain statement of the claim showing the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled. *'
In addition, no longer is a trial strictly limited to the issues raised in the pleadings. See
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