Steinke v. Allstate Ins. Co.3/22/1993
SHAW, Judge.
The record reveals that on October 7, 1991, Joe and Peggy Fisher filed an amended answer and a five-count counterclaim against the plaintiff-appellant, Kenneth Steinke, in a forcible entry and detainer action. Appellant requested that defendant-appellee, Allstate Insurance Company, defend him in the counter-claim action and provide insurance coverage pursuant to the policy. Allstate denied coverage and refused to defend appellant in the counterclaim action on the ground that appellant's actions were intentional and/or criminal, and, thus, expressly excluded under the policy. On November 1, 1991, appellant pled no contest and was found guilty of disorderly conduct in the Municipal Court of Auglaize County.
Thereafter, appellant filed a complaint for declaratory judgment. Both parties moved for summary judgment. On July 10, 1992, the Auglaize County Court of Common Pleas granted summary judgment in favor of Allstate on the basis that it owed no duty to provide coverage or defend appellant, denied appellant's motion, and dismissed his complaint.
Appellant now appeals from the judgment of the trial court and asserts the following assignment of error:
"The Trial Court Erred in Granting Summary Judgment in Favor of Defendant/Appellee and in not Granting Summary Judgment in Favor of Plaintiff/Appellant Since There was no Genuine Question of Material Fact But That Defendant had Duty to Provide Insurance Coverage and Defend Plaintiff/Appellant in the Civil Assault Case Brought Against Plaintiff/Appellant."
In reviewing a summary judgment, we must follow the standard set forth In Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47, that before summary judgment may be granted it must be determined:
"(1) hat there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor."
In determining whether an insurer owes an insured a duty to defend, the Ohio State Supreme Court held in Willoughby Hills v. Cincinnati Ins. Co. (1984), 9 Ohio St.3d 177, 180, 9 OBR 463, 465, 459 N.E.2d 555, 558, that:
" here the insurer's duty to defend is not apparent from the pleadings in the case against the insured, but the allegations do state a claim which is potentially or arguably within the policy coverage, or there is some doubt as to whether a theory of recovery within the policy coverage has been pleaded, the insurer must accept the defense of the claim."
In the more recent case of Wedge Prod., Inc. v. Hartford equity Sales Co. (1987), 31 Ohio St.3d 65, 68, 81 OBR 180, 182, 509 N.E.2d 74, 76, the Ohio Supreme Court distinguished Willoughby Hills, stating as follows:
"As in Willoughby Hills, Hartford's policy states that its duty to defend exists 'even if any of the allegations of the suit are groundless, false or fraudulent * * *.' Willoughby Hills, however, does not require a defense where the complaint contains no allegation that states a claim 'potentially or arguably within the policy coverage.' There is no doubt here. No theory of recovery within the policy coverage has been pleaded, regardless of whether the allegations are true, false, fraudulent or groundless. Thus, Hartford has no duty to defend either action. See Zanco, Inc. v. Michigan Mut. Ins. Co. (1984), 11 Ohio St.3d 114, 11 OBR 413, 464 N.E.2d 513." (Footnote omitted.)
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