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Winters v. Hart6/24/2005
DECISION AND JUDGMENT ENTRY
{ } This is an accelerated appeal from an award of a partial summary judgment issued by the Ottawa County Court of Common Pleas in a declaratory judgment action, ancillary to a wrongful death suit.
{ } Andrea Hart is the daughter of the late Sidney E. Kelsey. When Kelsey died in 1988, his will provided for a testamentary trust for Andrea Hart's benefit. The trustees were directed to purchase and hold title to a manufactured home in which Andrea Hart and her family could live.
{ } Andrea married Roger Hart and had four children. The oldest, Dianne, was born in 1985. Roger Hart was a large man when the couple married and continued to gain weight until he reached 475 pounds in 2001. Apparently to abate the health problems associated with obesity, that summer Roger chose to have stomach reduction surgery. He was at home recuperating from that surgery when, on June 30, 2001, he argued with his then 16-year old daughter, Dianna. In the course of this dispute, Dianna is alleged to have pushed her father.
{ } Shortly after he was shoved, Roger began to feel discomfort and, eventually, pain in and around the surgical site . The symptoms grew in frequency and intensity over the next few days. On July 6, Hart was admitted to Cleveland's MetroHealth Medical Center with abdominal pain. On July 8, corrective surgery was attempted, but Hart did not survive. He died July 9, 2001.
{ } On June 26, 2002, appellee, Bruce Winters, as administrator of Roger Hart's estate, sued Dianna Hart for the wrongful death of her father. Incorporated into the complaint was a petition for a declaratory judgment, seeking a declaration of coverage for Dianna Hart under a mobile homeowner's insurance policy issued by appellant, Owners Insurance Co., to the Sidney Kelsey Trust.
{ } The insurance matter was submitted to the trial court on cross motions for partial summary judgment. Eventually the court granted appellee's motion and denied appellant's, concluding that Dianna Hart was covered under appellant's policy. This matter is now before the court, pursuant to Civ.R. 54(B).
{ } In a single assignment of error, appellant contends that the trial court erred in denying its motion and granting appellee's.
{ } Civ. R. 56(C) provides that summary judgment may be granted only if (1) no genuine issue of material fact remains to be litigated; (2) it appears from the evidence that reasonable minds can reach but one conclusion and that conclusion is adverse to the nonmoving party; and (3) the moving party is entitled to summary judgment as a matter of law. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. In deciding whether a genuine issue of material fact precludes the grant of summary judgment, a court must adhere to Civ.R. 56(C) and view the evidence in a light most favorable to the nonmoving party. Turner v. Turner (1993), 67 Ohio St.3d 337, 341.
{ } The determination of whether appellant has a duty to defend and indemnify Dianna Hart under its policy requires that we consider the terms of the insurance agreement. The construction of a written contract is a matter of law, reviewed de novo. Sanders v. Mortensen, 101 Ohio St.3d 86, 88, 2004-Ohio-24, at . The goal of construction of a contract is to find the intent of the parties. The presumption is that the parties' intent may be ascertained in the language used in the written instrument. Id.
{ } If the plain language of the agreement reveals the intent of the parties, there is no need to interpret the contract. Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St.2d 241 at paragraph two of the syllabus. If, however, the terms of the
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