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Chemstress Consultant Co.6/17/1998
DICKINSON, Judge.
Defendant Cincinnati Insurance Company has appealed from an order of the Summit County Common Pleas Court that granted plaintiffs Chemstress Consultant Company, Timothy Tausch, and Steve Clark (collectively "Chemstress") summary judgment on their claim for declaratory judgment. It has argued that the trial court incorrectly found (1) that it has a duty to defend Chemstress against a civil suit pending in Illinois and (2) that it will have a duty to indemnify Chemstress if the Illinois plaintiffs are successful. This court affirms the trial court's judgment regarding the duty to defend, because the Illinois plaintiffs arguably stated a claim that is covered by the commercial umbrella insurance policy. The trial court's judgment regarding the duty to indemnify is reversed, however, because Chemstress failed to demonstrate that there is, in fact, any liability under either insurance policy.
Chemstress Consultant Company is in the business of providing engineering services. Timothy Tausch and Steve Clark are employees of Chemstress. The three Chemstress appellees, as well as several others, were named as defendantsin a personal injury suit filed in Illinois by Michael and Patricia Brown. By their complaint, the Browns alleged that on December 10, 1990, Michael Brown was working as an ironworker at a building that was under construction. The building's owner, Caterpillar Inc., had hired Chemstress, Mr. Brown's employer River City Construction Company, and several others to complete the construction. While Brown was working "from the structural steel welding plates for a cable tray," an eight-foot "body of oily water shot from the quench tank forcing to fall to the floor." He sustained injuries as a result of the fall. The Browns further alleged that Chemstress employee Steve Clark, who was designing a program to run the quench tank, had caused the water to spew from the tank.
The Browns' allegations of liability against Chemstress were that it had caused Mr. Brown's injuries by (1) causing the water to spew from the quench tank, (2) failing to coordinate its work around him, and (3) failing to provide him with a scaffold to work from. One of the other Illinois defendants filed a counterclaim against Chemstress that alleged similar bases of liability.
Cincinnati Insurance, with whom Chemstress held a commercial general liability insurance policy and a commercial umbrella insurance policy, refused to defend or indemnify Chemstress. Chemstress brought this declaratory judgment action against Cincinnati Insurance, seeking a declaration that the insurer had a duty to defend and indemnify it against the Illinois claims.
Both parties moved the trial court for summary judgment. The focus of the parties' dispute was whether the claims pending in Illinois fell within the "professional liability" exclusion of both insurance policies, precluding the duty of Cincinnati Insurance to defend or indemnify Chemstress. It was the position of Cincinnati Insurance that the Illinois plaintiffs had stated claims based solely on the professional liability of Chemstress and that, therefore, it had no duty to defend or indemnify it. Chemstress, on the other hand, asserted that the complaint of the Illinois plaintiffs had stated general negligence claims as well. The trial court agreed with Chemstress that the Illinois suit had arguably stated general negligence claims that qualified for coverage under both policies. The trial court, therefore, held that Cincinnati Insurance had a duty to defend Chemstress and, "if the Illinois plaintiffs are successful, a duty to indemnify." The trial court granted Chemstress summary judgm
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