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Chemstress Consultant Co.6/17/1998
oodyear Tire & Rubber Co. (1990), 66 Ohio App.3d 826, 829, 586 N.E.2d 1121, 1122-1123. Chemstress failed to demonstrate that it was entitled to judgment as a matter of law. In fact, Chemstress presented no evidence to support its claim that Cincinnati Insurance has a duty to indemnify it.
An insurer's duty to indemnify is separate and distinct from its duty to defend. Riverside Ins. Co. v. Wiland (1984), 16 Ohio App.3d 23, 26, 16 OBR 24, 27, 474 N.E.2d 371, 375. The trial court incorrectly failed to make a distinction here. Although a duty to defend was correctly determined from the allegations in the complaint, determining that there is also a duty to indemnify required additional information. The duty to indemnify is based on whether there is, in fact, liability under the policy. See id. The trial court could not make such a determination without some proof of the actual facts underlying the Illinois plaintiffs' complaint. Chemstress failed to present any such evidence.
Because Chemstress failed to present any evidence that there is, in fact, any liability under either insurance policy, it failed to demonstrate any right to indemnity from Cincinnati Insurance. Its position was simply that there might be liability under the policy because the Browns had arguably stated a claim within policy coverage. As Louisiana's Third Circuit Court of Appeals noted, when addressing the same issue:
"Whether plaintiffs are liable to the personal injury and wrongful death claimants on the basis of professional or nonprofessional acts or omissions, or indeed, whether plaintiffs are liable at all, are matters to be resolved in other proceedings. We cannot foresee all theories of liability that might be advanced in the underlying tort suit, and even less can we predict which theories (if any) might carry the day for the personal injury and wrongful death claimants. Furthermore, we will not explore the language of all the insurance policies issued to plaintiffs in an attempt to set forth, in advance, under which outcomes at trias[the insurer] would be obligated to provide indemnification." CBM Engineers, Inc. v. Transcontinental Ins. Co. (1984), 460 So.2d 745, 747.
This court is persuaded by this reasoning, and it likewise will not speculate as to the true facts, nor can it issue an advisory opinion. The trial court had insufficient evidence before it to support summary judgment for Chemstress on its claim that Cincinnati Insurance has a duty to indemnify it. The second assignment of error of Cincinnati Insurance is sustained.
The first assignment of error of Cincinnati Insurance is overruled. Its second assignment of error is sustained. The trial court's judgment is affirmed in part, reversed in part, and the cause is remanded for proceedings consistent with this opinion.
Judgment affirmed in part, reversed in part and cause remanded.
SLABY, P.J., and BAIRD, J., concur.
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