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Stickovich v. City of Cleveland8/2/2001
is employer violated an authoritative safety requirement and that such violation was the proximate cause of his injuries.
In his VSSR application, Stickovich alleged eight violations by ICC of O.A.C. Section 4121:1-3-07, governing Cranes, Hoists, and Derricks. Four of his claims related to operating the boom of the crane within close proximity less than ten feet of overhead electrical lines. Cleveland had specifically notified ICC in its Notice to Bidders before it commenced any work on the Project that these precise safety requirements would be enforced. (Id. at Para. 6.)
Stickovich recovered on his VSSR claim against ICC by showing that ICC's violation of the O.A.C. safety regulations was the proximate cause of his injury . Neither he nor Straight, however, subsequently filed against ICC an intentional tort claim asserting that their injuries were substantially certain to occur from its conduct on the Project.
Instead, on March 12, 1993, Stickovich and Straight filed the case at bar against Cleveland, the crane manufacturer ( Grove ), and the crane lessor, Construction Supplies. They alleged Cleveland improperly maintained the stationary wires and that the manufacturer improperly produced and the lessor improperly leased a defective uninsulated crane to ICC without providing adequate warnings to avoid contact with electrical power lines. Cleveland requested that Commercial Union provide a defense and liability coverage for it as an additional insured under ICC's CGL policy. Commercial Union refused.
Cleveland, represented by its law department, filed an answer to the complaint as well as a third-party complaint against ICC and CGL insurer Commercial Union. Cleveland's July 12, 1993 complaint alleged, inter alia, that ICC was negligent. Cleveland also sought a declaratory judgment against Commercial Union; it specifically requested a defense of the claims against Cleveland as well as coverage for any liability imposed against it. (Third-Party Complaint, Count 1 Breach of Contract, and Count 2 Declaratory Judgment. )
Numerous other claims and cross-claims were subsequently filed by the parties. For example, crane lessor Construction Supplies also alleged that ICC was negligent. Commercial Union filed an answer to Cleveland's complaint and denied liability, but notably did not specifically raise the affirmative defense that the coverage of its own CGL policy was contrary to statute or public policy as required by Civ.R 8(C).
On September 12, 1995, more than two years later, Cleveland filed a motion for summary judgment on its claims against Commercial Union. By this time discovery during the course of the litigation revealed evidence to support claims against ICC, which evidence raised the potential for vicarious liability of others.
Commercial Union opposed Cleveland's motion and filed its own cross-motion for summary judgment. The trial court granted Cleveland's motion for summary judgment against Commercial Union and denied Commercial Union's cross-motion. In granting summary judgment, the trial court held that Commercial Union had a duty to defend and was conditionally liable for any judgment against Cleveland depending on the verdict and evidence presented at trial.
On March 29, 1996, more than three years after the action was originally filed, counsel retained by Commercial Union filed an appearance on behalf of Cleveland. Commercial Union was reluctant to defend Cleveland, however, and repeatedly sought to relitigate the coverage issues. A successor trial judge denied its requests to reconsider the coverage rulings. Commercial Union ultimately controlled the defense and exercised its exclusive right to settl
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