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Ohio Government Risk Management Plan v. Harrison6/27/2005
JUDGMENTS: Judgments reversed and cause remanded.
{ } Defendants-appellants, David L. Harrison Sr. and Denise Kohler, bring these appeals from the judgment of the Court of Common Pleas of Auglaize County granting summary judgment to plaintiff-appellee, the Ohio Government Risk Management Plan.
{ } The plan is a joint self-insured pool that provides coverage and benefits to all members, similar in nature to traditional insurance coverage. During the times relevant to this case, the plan provided coverage to the city of Wapakoneta and to Harrison as the chief of police of Wapakoneta. While chief of police, Harrison employed Kohler. Kohler subsequently sued Harrison and Wapakoneta, alleging that Harrison, as chief of police, created a sexually hostile work environment, breached Kohler's right to privacy, invaded her privacy, intentionally inflicted emotional distress, engaged in sexual discrimination, misfeasance, malfeasance, and nonfeasance, and violated her civil rights. Kohler alleged that these acts occurred while Harrison was acting in his official capacity and under color of state law.
{ } On June 14, 2004, the plan filed an action requesting that the trial court find that it had no duty to provide coverage or a defense to Harrison. Harrison and Kohler both filed their answers to the plan's complaint on July 13, 2004. On September 16, 2004, the plan filed a motion for summary judgment. Harrison and Kohler both filed memorandums on October 1, 2004, opposing the plan's motion for summary judgment. On October 4, 2004, the trial court granted partial summary judgment to the plan, finding that it had no duty to defend Harrison. Harrison and Kohler appeal from that judgment, and both raise the following assignment of error:
The trial court erred to the prejudice of [Harrison] in granting [the plan's] motion for summary judgment.
{ } When reviewing a motion for summary judgment, courts must proceed cautiously and award summary judgment only when appropriate. Franks v. Lima News (1996), 109 Ohio App.3d 408, 672 N.E.2d 245. "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 the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving party." State ex rel. Howard v. Ferreri (1994), 70 Ohio St.3d 587, 589, 639 N.E.2d 1189. When reviewing the judgment of the trial court, an appellate court reviews the case de novo. Franks, supra.
{ } The question raised by the assignment of error is whether a dispute over a material fact exists as to whether the plan has a duty to defend Harrison. When the complaint brings the action within the coverage of the policy, the insurer is required to make defense, regardless of the ultimate outcome of the action or its liability to the insured. Cincinnati Ins. Co. v. Anders, 99 Ohio St.3d 156, 2003-Ohio-3048, 789 N.E.2d 1094, citing Motorists Mut. Ins. Co. v. Trainor (1973), 33 Ohio St.2d 41, 294 N.E.2d 874. "Where the allegations state a claim that falls either potentially or arguably within the liability insurance coverage, the insurer must defend the insured in the action." Id. at , citing Willoughby Hills v. Cincinnati Ins. Co.(1984), 9 Ohio St.3d 177, 459 N.E.2d 555. However, "where the conduct which prompted the underlying * * * suit is so indisputably outside coverage, we discern no basis for requiring the insurance company to defend or indemnify its insured simply because the underly
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