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Owners Insurance Co. v. William Benjamin Trucking6/15/2005
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
{ } Defendant-Appellants William Benjamin Trucking, Inc., Benjamin & Benjamin Trucking, Inc., and Mark Benjamin Trucking, Inc., have appealed from the judgment of the Summit County Court of Common Pleas that granted summary judgment to Plaintiff-Appellees Owners Insurance Co. and Auto-Owners Insurance Co. This Court affirms.
I.
{ } Relevant to the instant appeal but not subject to our review, the record reveals that Robet Rey ("Rey"), a former employee of Appellants', suffered a job related injury requiring the amputation of his leg. Rey was then terminated from his employment with Appellants. On June 25, 2002, Rey filed suit against Appellants wherein he claimed that Appellants had engaged in: 1) retaliatory discharge; 2) handicap discrimination; 3) violations of public policy; and 4) negligent or intentional infliction of emotional distress. The Rey litigation was ultimately settled, and Rey dismissed his complaint against Appellants with prejudice.
{ } On June 19, 2003, Appellees filed a complaint against Appellants and Rey requesting a declaratory judgment that Appellees had no duty to defend or indemnify Appellants in the Rey litigation. Appellants answered the complaint, arguing that Appellees had a duty to defend and indemnify Appellants in the Rey litigation. Appellants also filed a counterclaim against Appellees wherein they argued that they were entitled to reimbursement of attorney's fees and costs associated with the defense and settlement of the Rey litigation. Appellees answered Appellants' counterclaim, denying all of the substantive claims. Rey also answered Appellants' complaint and filed a counterclaim against Appellees and a cross-claim against Appellants. Appellees answered Rey's counterclaim, and Appellants answered Rey's cross-claim.
{ } On February 20, 2004, Appellees filed a motion for summary judgment on their June 19, 2003 complaint requesting declaratory judgment. Appellants and Rey each responded to the motion.
{ } On June 8, 2004, Appellees dismissed all claims against Rey in the underlying litigation. Rey never dismissed his counterclaim against Appellees or his cross-claim against Appellants.
{ } On August 23, 2004, the trial court granted Appellees summary judgment on their June 19, 2003 complaint requesting declaratory judgment. Appellants have timely appealed the trial court's decision, asserting two assignments of error.
II. Assignment of Error Number One
"THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO OWNERS INSURANCE COMPANY BECAUSE THE REY COMPLAINT TRIGGERED A DUTY TO DEFEND WITH RESPECT TO THE PRIMARY POLICY ISSUED TO APPELLANTS."
{ } In their first assignment of error, Appellants have argued that the trial court erred when it concluded that Appellees were not required to defend or indemnify Appellants in the Rey litigation. Specifically, Appellants have argued that Rey claimed that he suffered bodily injury as a result of Appellants' negligence, thus triggering Appellees' duty to indemnify and defend Appellants in the Rey litigation. We disagree.
{ } Appellate courts review the grant of summary judgment de novo, applying the same standard used by the trial court. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. Accordingly, an appellate court "review the same evidentiary materials that were properly before the trial court at the time it ruled on the summary judgment motion." Am. Energy Serv., Inc. v. Lekan (1992), 75 Ohio App.3d 2
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