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Chiropractic Clinic of Solon12/10/1998
JUDGMENT: AFFIRMED.
Plaintiff-appellant Chiropractic Clinic of Solon ( appellant ) appeals the judgment of the Cuyahoga County Court of Common Pleas wherein the court denied appellant's motion for summary judgment on its declaratory request and its claim of bad faith and, further, granted judgment in favor of defendants-appellees National Chiropractic Mutual Insurance Co. ( NCMIC ) and Buckeye Union Insurance Company/Continental Insurance Co. ( Buckeye/ Continental ). For the reasons stated below, we affirm the decision of the trial court.
This action follows an underlying complaint on account filed in Bedford Municipal Court on July 21, 1991 by the Chiropractic Clinic of Solon against Dale Kutsko. Kutsko answered and asserted a counterclaim against the Clinic. The Clinic tendered the defense of the counterclaim to its insurers NCMIC and Buckeye/Continental. Each appellee refused to accept the defense of the asserted counterclaim on the basis that the substance of the counterclaim was not included within the policy coverages. In the underlying action, the trial court granted judgment on the pleadings and dismissed Kutsko's counterclaim. That decision by the trial court was upheld by this court of appeals in Chiropractic Clinic of Solon v. Kutsko (1994), 92 Ohio App.3d 608. The underlying action proceeded to trial resulting in judgment for the Clinic on its claim on account against Kutsko. This court of appeals affirmed the decision of the trial court in Chiropractic Clinic of Solon v. Kutsko (Dec. 5, 1996), Cuyahoga App. No. 70119, unreported.
On January 24, 1997, appellant initiated the within matter by filing a complaint seeking a judicial declaration that both NCMIC and Buckeye/Continental were obligated to provide a defense for the counterclaim asserted by Kutsko against it pursuant to the terms of their policies. Appellant further sought punitive damages from these insurers for the bad faith demonstrated by their refusal to provide a defense to the Kutsko counterclaim. After full briefing on the issues, the trial court denied appellant's motion for summary judgment and declared that neither appellee insurer NCMIC nor Buckeye/Continental had a duty to defend appellant on the Kutsko counterclaim as the counterclaim was neither potentially nor arguably within either policy's coverage. The trial court further granted summary judgment in favor of appellees on all appellant's claims against them. Appellant timely appeals this judgment of the trial court and advances six assignments of error for our review.
I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE APPELLEE, NATIONAL CHIROPRACTIC MUTUAL INSURANCE COMPANY, AS TO THE COVERAGE ISSUE.
II. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR SUMMARY JUDGMENT AS TO THE COVERAGE CLAIMS AGAINST NATIONAL CHIROPRACTIC MUTUAL INSURANCE COMPANY.
III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE APPELLEES, BUCKEYE UNION INSURANCE COMPANY AND CONTINENTAL INSURANCE COMPANY, AS TO THE COVERAGE ISSUE.
IV. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR SUMMARY JUDGMENT AS TO THE COVERAGE CLAIMS AGAINST BUCKEYE UNION INSURANCE COMPANY AND CONTINENTAL INSURANCE COMPANY.
V. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO APPELLEE, NATIONAL CHIRO- PRACTIC MUTUAL INSURANCE COMPANY, AS TO THE BAD FAITH CLAIM.
VI. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO APPELLEES, BUCKEYE UNION INSURANCE COMPANY AND CONTINENTAL INSURANCE COMPANY, AS TO THE BAD FAITH CLAIM.
In its first four assignments of error, appellant essentially contends that the trial court erred in its declaration that each appe
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