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Indiana Insurance Co. v. Barnes12/6/2005
ek payment from its insured, Barnes, Barnes's personal policy through Allstate was not invoked.
{ } On March 1, 2005, the trial court issued a decision sustaining Indiana's motion for summary judgment. The trial court found that Barnes was an insured under the plain language of Indiana's insurance contract with Gauer. The court also observed that the Indiana policy contained no express contract for indemnification, but that implied indemnification might be relevant. Without expressing whether or not that theory applied, the court began a discussion regarding which insurance policy was primary, and which was secondary: the Indiana policy issued to Gauer or Barnes's Allstate policy. Applying Motorists Mut. Ins. Co. v. Lumbermens Mut. Ins. Co. (1965), 1 Ohio St.2d 105, the trial court concluded that Allstate's policy was primary and Indiana's was excess. The court thus sustained Indiana's motion for summary judgment. On March 17, 2005, the court journalized its decision in a final appealable order.
{ } Barnes filed a timely appeal from that judgment and raises the following issues as assignments of error:
Whether Indiana Insurance Co., Appellee, can seek indemnification from a named insured.
Whether the trial court's entry awarding costs and interest pre-dating judgment is appropriate.
{ } Appellate review of a trial court's decision on summary judgment is de novo. Doe v. Shaffer (2000), 90 Ohio St.3d 388, 390. We must independently review the record to determine whether summary judgment was appropriate. Mergenthal v. Star Banc Corp. (1997), 122 Ohio App.3d 100, 103. Pursuant to Civ.R. 56, summary judgment is properly granted only when the record, viewed in a light most favorable to the nonmoving party, demonstrates that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Civ.R. 56(C); Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.
{ } The party moving for summary judgment bears the burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact regarding the essential elements of the claims presented. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293. Conclusory assertions that the nonmoving party cannot prove its case are not sufficient to discharge this initial burden. Id. at 293.Similarly, once the burden is satisfied, one cannot prevent summary judgment by merely restating unsubstantiated allegations contained within the original pleadings. Instead, the nonmoving party must demonstrate the continued existence of a genuine issue of material fact by directing the court's attention to relevant, affirmative evidence of the type listed in Civ.R. 56(C). Id., citing Civ.R. 56(E).
{ } Indiana bases its right to recover from Barnes on two separate, yet related, theories. The first is indemnification, and the second is subrogation. Both concepts are integral to insurance law.
{ } Indemnification provides that "where a person is chargeable with another's wrongful act and pays damages to the injured party as a result thereof, he has a right of indemnity from the person committing the wrongful act, the party paying the damages being only secondarily liable; whereas, the person committing the wrongful act is primarily liable." Convention Center Inn, Ltd. v. Dow Chemical Co. (1990), 70 Ohio App.3d 243, 247. The right of indemnity may result from an express agreement or contractual provision in which one party, who has been compelled to pay what the other party should have paid, reserves the right to require complete reimbursement. Worth v. Aetna Cas. &a
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