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Ruffin v. Sawchyn8/12/1991
JAMES D. SWEENEY, Judge.
Third-party defendant-appellant Nationwide Insurance Company ("Nationwide") appeals from the declaratory judgment of the trial court which found that Nationwide had failed to defend a former policyholder in a negligence action. As a result, Nationwide was ordered to indemnify the policyholder for damages awarded in the concluded negligence action, and pay the attorney fees incurred by the policyholder as a result of Nationwide's failure to provide a defense. For the reasons adduced below, we reverse.
The multi-peril comprehensive general liability insurance policy at issue, number 93SM791 541 0001, was purchased from Nationwide by Taylor Road Associates, Limited for the policy period of November 1, 1980 to November 1s1983, covering real property located at 2201-2213 Taylor Road, Cleveland Heights, Ohio.
From June to October 1984, plaintiff Deneta Ruffin, a minor at the time, resided at 2205 Taylor Road, Apartment No. 3. During that period, it was alleged, the child ingested lead-based paint chips at the apartment, causing personal injury to the child.
A complaint sounding in tort against the alleged owners of the property was filed by plaintiff, by and through her court- appointed guardian, on July 16, 1985. On October 31, 1985, Davis and Taylor Road Associates, Ltd., filed a third-party complaint against Nationwide and Buckeye Union Insurance Company"seeking a defense by the insurers and indemnification with respect to the claims of Deneta Ruffin. The third-party defendant insurers denied any obligation to provide either a defense or indemnification pursuant to the applicable policy coverage. Nationwide undertook, and later abandoned, representation in the tort action of its former insureds subject to a reservation of its rights.
The court severed the trial of the tort action from the trial of the third-party complaint.
Following a hearing before the bench on the third-party complaint, the trial court issued its six-page judgment entry on October 23, 1987. The court's judgment entry states:
"Nationwide's position is that it had no coverage for an occurrence that took place between June 1 and October 1, 1984; that its policy of insurance had expired in November, 1983.
"* * * There is no dispute about the fact that the Nationwide Insurance coverage had expired on November 30, 1983, more than a year prior to the alleged occurrence, which is the subject matter of the action herein. * * * The attorney for the plaintiff, at the trial hereof, orally asserted that it was the theory of the plaintiff that there was negligence by Davis during the period of the coverage by the Nationwide Insurance Company, although the injury itself did not occur until after the time of the policy.
"* * *
"Nowhere in the plaintiff's complaint is it alleged that defendant Davis, etc., was negligent during the period of the Nationwide Insurance coverage. The averment "During this time period (June 1, 1984 and ending in October, 1984)
"Nationwide Insurance Company contends that it is only liable for defense of an injury `which occurs during the policy period, except as to death.'
"The applicable policy provides:
"`The company will pay on behalf of the insured all sums which insureds shall become legally obligated to pay as damages because of bodily injury caused by an occurrence, and arising out of the ownership, maintenance or use of the insured premises.'
"The word `occurrence' is defined in the policy as follows:
"`An accident, including continuous or repeated exposure to conditions, which re
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