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Cincinnati Insurance Co. v. HPE8/22/2005
JUDGMENT: Affirmed
{ } On September 13, 2004, Daniel Rachel filed a civil lawsuit against appellant, HPE, Inc. Appellant was insured under a commercial general liability policy and an umbrella policy issued by appellee, Cincinnati Insurance Company. Appellant requested Cincinnati to defend and indemnify it in the lawsuit.
{ } On October 25, 2004, Cincinnati filed a declaratory judgment action to determine its duty under the policies. Both parties filed motions for summary judgment. By judgment entry filed January 28, 2005, the trial court found in favor of Cincinnati.
{ } Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:
I.
{ } "THE INSURANCE COMPANY'S DUTY TO DEFEND IS SEPARATE AND DISTINCT FROM ITS DUTY TO INDEMNIFY, AND THE DUTY TO DEFEND IS BROADER THAN THE DUTY TO INDEMNITY AND EXISTS WHEN THE POLICY CONTAINS LANGUAGE PROMISING TO DEFEND THE INSURED AGAINST GROUNDLESS, FALSE OR FRAUDULENT CLAIMS."
II.
{ } "WHERE THE CONDUCT WHICH PROMPTED THE UNDERLYING SUIT BRINGS THE ACTION WITHIN THE POLICY COVERAGE THE INSURANCE COMPANY HAS THE DUTY TO PROVIDE COVERAGE."
I, II.
{ } Appellant claims the trial court erred in finding Cincinnati did not owe a duty to defend and/or indemnify under its commercial general liability and umbrella policies. We disagree.
{ } Summary Judgment motions are to be resolved in light of the dictates of Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:
{ } "Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274."
{ } As an appellate court reviewing summary judgment motions, we must stand in the shoes of the trial court and review summary judgments on the same standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35.
{ } In Willoughby Hills v. Cincinnati Insurance Co. (1984), 9 Ohio St.3d 177, 180, the Supreme Court of Ohio held the following:
{ } " 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 had been pleaded, the insurer must accept the defense of the claim."
{ } In Sanderson v. Ohio Edison Co., 69 Ohio St.3d 582, 1994-Ohio-379, paragraph one of the syllabus, the Supreme Court of Ohio discussed an insured's duty to defend as follows:
{ } "An insurance policy which states that the insurer is obligated to defend in any action seeking damages payable under the policy against the insured, even where the allegations are groundless, false or fraudulent, imposes an absolute duty upon the insurer to assume the defense of the action where the complaint states a claim which is partially or arguably within policy
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