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Stickovich v. City of Cleveland8/2/2001
construed the insurance contract to cover actionable negligence of Cleveland. Cleveland argued it was immune from claims of liability arising from its own conduct in the case at bar under R.C. Chapter 2744, because the case involved discretionary acts in carrying out the governmental function of bridge repair to which no exception applied. Regardless of any immunity, however, there is existing caselaw involving claims by employees of independent contractors against both public and private property owners and utilities that would have supported its non-liability on the claims against it under the circumstances of this case. See Betzman v. Navistar Int'l Transp. (1991), 77 Ohio App.3d 611 (premises liability); Id., Brauning v. Cincinnati Gas & Elec. (1989), 54 Ohio App.3d 38, 44-45 (safe place to work); and Joseph v. Ohio Power Co. (1988), 46 Ohio App.3d 170 (as a utility). Under the circumstances, we find that Commercial Union failed to satisfy its burden of showing that liability insurance coverage was against public policy or that the trial court improperly applied its contract in the case at bar.
Accordingly, Commercial Union's sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
TIMOTHY E. McMONAGLE, J., CONCURS; MICHAEL J. CORRIGAN, J., DISSENTS (See Dissenting Opinion).
DIANE KARPINSKI PRESIDING JUDGE
DISSENTING OPINION
MICHAEL J. CORRIGAN, J., DISSENTING:
The holding of the majority opinion is very narrow: Commercial Union waived the right to assert the affirmative defense of illegality because it did not raise the defense in its answer to the city's third-party complaint. Ante at 14-15.
I disagree with this conclusion, being of the opinion that R.C. 2305.31 and Buckeye Union Insurance Co. v. Zavarella Brothers Construction Co. (1997), 121 Ohio App.3d 147, would render the contract void ab initio, and that we should not apply the waiver rule to give vitality to an otherwise void contract. Obviously, I disagree with the discussion in pages 16-56 of the majority opinion. I am compelled to point out that the majority's discussion is dicta in its purest form, being wholly unnecessary to the very narrow point of law - the waiver issue - that forms the basis for the majority's resolution of the case.
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