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Danis Building Construction v. Employers Fire Insurance Co.11/22/2002
. Danis Building Construction Company is appealing from the decision of the Montgomery County Common Pleas Court denying coverage for a certain accident from the defendants in a declaratory judgment action brought by the plaintiff. The plaintiff-appellant sets forth the following three assignments of error:
. "1. THE TRIAL COURT ERRED IN DETERMINING THAT DANIS BUILDING CONSTRUCTION COMPANY WAS NOT ENTITLED TO INDEMNITY UNDER INSURANCE POLICIES ISSUED BY EMPLOYERS FIRE INSURANCE COMPANY AND COMMERCIAL UNION INSURANCE COMPANY.
. "2. THE TRIAL COURT ERRED IN DETERMINING THAT DANIS BUILDING CONSTRUCTION COMPANY WAS NOT ENTITLED TO A DEFENSE UNDER INSURANCE POLICIES ISSUED BY EMPLOYERS FIRE INSURANCE COMPANY AND COMMERCIAL UNION INSURANCE COMPANY.
. "3. THE TRIAL COURT ERRED BY FAILING TO DETERMINE THE PRIORITY OF THE AVAILABLE POLICIES OF INSURANCE."
. The facts of the matter and the reasoning of the trial court are set forth concisely but in full in its decision and entry, as follows:
. "I. FACTS
. "This case arises out of an accident that occurred at a construction project for Cedarville College on March 28, 1998 in which Robert Moody was injured while working for Mitre Masonry, Inc. Plaintiff Danis was the general contractor and Mitre Masonry was a subcontractor for the construction project. Mr. Moody fell from a scaffold when he was hit by a mortar pan attached to a crane operated by an employee of Danis, Dave King. Defendants Employers' Fire Insurance Company (EFIC) and Commercial Union Insurance Company (CUIC) were the liability insurers for Mitre Masonry.
. "As a part of the contract between Danis and Mitre, Mitre was obligated to add Danis as an additional insured on both the liability policy issued by EFIC and the umbrella policy issued by CUIC. Danis' coverage on the policy was limited to liability arising out of work performed for Danis by Mitre. Specifically, the policy included as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of ongoing operations performed for that insured.
. "Mr. Moody filed suit against Danis and the crane operator Dave King, case no. 96 CV 4749, for the injuries sustained as a result of the fall. As part of the proceedings, Danis filed a third party complaint against EFIC, CUIC and Mitre Masonry alleging insurance coverage for Mr. Moody's claim. Danis' claim rested on the allegation that its employee, Dave King, was actually working for Mitre at the time of the accident and therefore the aforementioned insurance policy covered Mr. Moody's injury. The claims of Robert Moody as well as the third party complaint against Mitre Masonry were settled prior to trial. At the same time, a declaratory action had been filed in the U.S. District Court for the Southern District of Ohio but was ultimately dismissed for want of jurisdiction.
. "II. LEGAL ANALYSIS
. "The subcontract between Danis and Mitre Masonry related to an agreement relevant to the construction of a building and was subject to the Ohio Revised Code ยง2305.31 at the time of the injury to Robert Moody. Pursuant to legislative enactment and established case law, the Additional Insured Owners, Lessees or Contractors Endorsement can only provide liability coverage to Danis under the circumstances of this case for the vicarious liability of Mitre Masonry.
. "Robert Moody's claim for recovery in his suit was limited to his claims against Danis and Dave King. Therefore, the public policy of Ohio prohibits coverage to Danis and Dave King for the claims which were asserted by Mr. Moody in his action, Case No. 9
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