 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Wight v. Michalko4/29/2005
{ } Appellant, Brian Michalko, appeals from the April 21, 2004 judgment entry of the Portage County Court of Common Pleas, granting appellee's, Fire Insurance Exchange's, motion for summary judgment.
{ } On November 12, 2002, Plaintiff Kevin Wight ("Wight"), filed a complaint against appellant, alleging that he sustained injuries caused by appellant's negligent and/or reckless conduct arising out of an incident which occurred on November 10, 2001. Appellant filed an answer on February 28, 2003.
{ } On March 13, 2003, appellee filed a motion to intervene pursuant to Civ.R. 24, which was granted by the trial court on March 14, 2003. On April 21, 2003, appellee filed the instant complaint against appellant for declaratory judgment, regarding whether it had a duty to defend and/or indemnify appellant. Appellant filed an answer on May 9, 2003.
{ } On October 31, 2003, appellee filed a motion for summary judgment pursuant to Civ.R. 56. Appellant filed a brief in opposition to appellee's motion for summary judgment on December 15, 2003.
{ } On November 10, 2001, appellant, a twenty-two year old Kent State student, got off of work as a bouncer at Mugs in Kent, Ohio, and met some friends at the Clubhouse, also in Kent. At approximately 3:00 a.m., brothers Eric and Christopher Wyman showed up at the Clubhouse with their girlfriends. According to appellant's deposition, Eric Wyman was a "bloody mess" and had been allegedly assaulted earlier that evening. Appellant testified that Christopher Wyman indicated that they were going to go to a house on South Water Street, where it was believed that the perpetrator of the assault lived. Appellant agreed that he would accompany them.
{ } Outside the house, although appellant could not see whether anyone was inside, he could hear voices and it sounded like a party was occurring. As appellant walked up the driveway, hepicked up a rock which weighed about five pounds, and threw it towards a first floor window. The rock hit and injured Wight. Appellant said that he went into the house after he heard the glass break and observed Wight, whom he did not know, lying on the kitchen floor. Appellant stated that he did not intend to hit or hurt anyone, but did intend to throw the rock into the house because he was angry.
{ } Appellant was later indicted, in Case No. 2002 CR 0134, on one count of felonious assault, in violation of R.C. 2903.11, a felony of the third degree. In August 2002, appellant entered a guilty plea to a lesser charge, one count of aggravated assault, in violation of R.C. 2903.12, a felony of the fourth degree. It was after appellant's sentencing that Wight filed hiscivil complaint.
{ } Pursuant to its April 21, 2004 judgment entry, the trial court granted appellee's motion for summary judgment. It is from that judgment that appellant filed a timely notice of appeal and makes the following assignment of error:
{ } "Under the facts of this case it was an abuse of discretion for the Court to grant summary judgment in favor of [appellee] seeking to avoid a defense and coverage based upon the 'intentional acts' exclusion in its policy[.]"
{ } In his sole assignment of error, appellant argues that the trial court abused its discretion by entering summary judgment in favor of appellee. Appellant contends that appellee sought to avoid a defense and coverage based upon the "intentional acts" exclusion in its policy. Appellant maintains that insurance contract law should not be decided by criminal prosecutions. Appellant stresses that the policy exclusion includes a standard of "reasonably foreseeable," a term which begs for a factual determination on a
Page 1 2 3 4 Ohio Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|