Evanston Ins. Co. v. ProCentury Ins. Co.
2019 Ohio 4214
Ohio Ct. App.2019Background
- Veard Construction contracted to repair fire-damaged apartments and agreed to defend/indemnify the owner (Lakeview Estates) for claims arising from Veard’s negligence; Veard installed an upper-level deck guardrail.
- Veard retained Patrick Electric as an independent contractor; Patrick Electric retained Shannon Green, who fell when the guardrail gave way and sued Veard and others for negligence.
- Lakeview demanded Veard defend/indemnify; Veard’s insurer, ProCentury, declined defense and indemnity; Evanston (insurer for Lakeview) provided defense and ultimately settled/paid judgments on behalf of its insureds.
- Evanston and Veard sued ProCentury seeking recovery under the policy and for breach/bad faith; ProCentury counterclaimed for declaratory relief, attaching a version of the policy that included an exclusion for bodily injury to independent contractors.
- ProCentury moved for judgment on the pleadings (Civ.R. 12[C]) asserting the independent-contractor exclusion eliminated coverage; the trial court granted the motion relying on alleged stipulations and the exclusionary language now in ProCentury’s attached policy.
- The Ninth District reversed and remanded, holding judgment on the pleadings was improper because the court relied on non-pleading stipulations and because there is a factual dispute over which policy (the one attached to the complaint or the one attached to the answer) governs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether judgment on the pleadings was proper given disputed applicability of the independent-contractor exclusion | Exclusion did not plainly apply; facts (who Green worked for) could show coverage | Exclusion bars coverage because Green was an employee of an independent contractor of Veard | Judgment on the pleadings was not proper; factual disputes exist and plaintiffs could prove a set of facts entitling them to relief |
| Whether the trial court could rely on oral stipulations at the Civ.R. 12(C) stage | Oral stipulations should not be considered on a 12(C) motion; only pleadings and attached written instruments count | Court treated stipulations as resolving who Green worked for and therefore justified 12(C) grant | Court held the trial court erred to the extent it relied on stipulations; stipulations are not pleadings and cannot be considered on a 12(C) motion |
| Whether the court could consider the policy version attached to ProCentury’s answer when the complaint attached a different version | The policy attached to the complaint governs the pleadings; differing attachments raise an issue of fact as to which policy applies | Implicitly treated the policy attached to the answer (which contained the independent-contractor exclusion) as controlling | Court found a factual issue over which policy governs; differing attachments preclude judgment on the pleadings |
Key Cases Cited
- State ex rel. Leneghan v. Husted, 154 Ohio St.3d 60 (2018) (written instruments attached to a pleading qualify as part of the pleadings for Civ.R. 10(C), but not every document attached to a pleading is a qualifying written instrument)