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Weiner v. American Cancer Society6/6/2002
JUDGMENT: AFFIRMED IN PART, AND REVERSED AND REMANDED IN PART.
. Defendant-appellant American Cancer Society, Ohio Division, Inc. ("ACS"), appeals from the following actions of the trial court: (1) the denial of ACS's motion for summary judgment on the cross-claim of defendant-appellee Girl Scouts of Lake Erie Council ("GSLEC"); (2) the granting of GSLEC's motion for summary judgment and the award of attorney fees in favor of GSLEC on its cross-claim against ACS; (3) the granting of GSLEC's motion for a protective order with respect to ACS's request for production of documents to the GSLEC; and, (4) the denial of ACS's motion to substitute the insurers of GSLEC as real parties in interest. For the reasons adduced below, we affirm in part, and reverse and remand in part.
. A review of the record on appeal indicates that the underlying action originated on October 7, 1999, when the parents of minor child, plaintiff Dakota R. "Cody" Weiner, and the minor child, filed their complaint against ACS and GSLEC for injuries sustained by Cody Weiner in June of 1999 while he was engaged in horseback riding at Camp Friendship , a week-long summer camp experience for childhood cancer patients sponsored by ACS at no expense to those attending. The premises used for Camp Friendship in 1999, known as Camp Crowell/Hilaka in Richfield, Ohio, is owned by GSLEC; the use of Camp Crowell/Hilaka for Camp Friendship was pursuant to a fee based facility use agreement entered into between ACS and GSLEC. The number of participants for the Camp Friendship week in question was 130 people (92 campers, 28 counselors, and 10 Camp Friendship staff). See Facility Use Agreement at 1. GSLEC provided the horses and horse program staff to the participants.
. Cody Weiner died from his injuries on February 12, 2000, after which the parents filed an amended complaint, alleging, in part, negligence and wrongful death. GSLEC filed its answer to this amended complaint, which included a cross-claim against ACS. On November 28, 2000, the parents, in separate settlement agreements with each defendant, settled all of their claims against ACS and GSLEC.
. On December 8, 2000, GSLEC filed an amended cross-claim against ACS alleging (a) breach of duty to defend by ACS and (b) for indemnification under paragraph 5 of the Guest Group Facility Use Agreement entered into between ACS and GSLEC.
. GSLEC filed its motion for summary judgment on its cross-claim. This motion was opposed by ACS who filed a cross-motion for summary judgment on the GSLEC cross-claim, which filing was captioned in the alternative as a motion to substitute real parties interest, seeking the court to name GSLEC's insurers, St. Paul Guardian Insurance Company and Crum & Forster, as real parties in interest. ACS also filed a request for production of documents upon GSLEC, which provided responses for some of the requested items but sought a protective order with regard to the remaining ACS requests.
. The trial court, on May 31, 2001, granted (a) GSLEC's motion for summary judgment on its cross-claim against ACS and (b) GSLEC's motion for protective order, and denied (c) ACS's motion for summary judgment on the GSLEC cross-claim and (d) ACS's motion to substitute the GSLEC's insurers as real parties in interest.
. On August 23, 2001, ACS and GSLEC stipulated as to the amount of attorney fees incurred by GSLEC in its defense of the lawsuit.
. On September 4, 2001, the trial court entered final judgment in favor of GSLEC and against ACS in an amount disclosed in paragraph 2 of the settlement, plus stipulated attorney fees in the amount of $120,699.81.
. ACS
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