Maxum Indemn. Co. v. Selective Ins. Co. of South Carolina
2012 Ohio 2115
Ohio Ct. App.2012Background
- Maxum appeals a Wayne County Court of Common Pleas decision in a declaratory judgment action regarding insurance defense duties.
- Maze alleged Safety Resource’s negligence in the Maze lawsuit arising from Safety Resource’s safety services at McClintock Electric’s jobsite.
- Safety Resource was insured by Maxum (professional liability) and Selective (business liability); Maze’s claims triggered coverage disputes between the insurers.
- Selective denied defense/coverage based on professional services exclusions; Maxum pursued defense costs and potential indemnification.
- The trial court granted summary judgment to Selective, and Maxum appealed, arguing improper consideration of an affidavit and misapplication of duty-to-defend principles.
- On appeal, the Ninth District Sustains the first two assignments and remands for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the trial court err by considering an affidavit at summary judgment? | Maxum argues the Marshall affidavit is improper Civ.R.56(E) evidence. | Selective contends the affidavit supports its defense obligation. | Yes; Marshall’s affidavit was improperly admitted. |
| Did the trial court err in granting summary judgment for Selective? | Maxum contends a duty to defend existed and material facts remained. | Selective argued no duty to defend due to professional services exclusion. | Yes; trial court erred by relying on the affidavit and failing to negate material facts. |
| Did the court err in denying Maxum’s partial summary judgment? | Maxum sought declaration that Selective is the primary insurer. | Selective asserted its status depends on ultimate coverage, not mere allegations. | Yes; the court should have addressed ultimate coverage under the “other insurance” provisions. |
Key Cases Cited
- Willoughby Hills v. Cincinnati Ins. Co., 9 Ohio St.3d 177 (1984) (duty to defend depends on pleadings and potential coverage)
- Ins. Co. of N. Am. v. Travelers Ins. Co., 118 Ohio App.3d 302 (1997) (when multiple insurers may defend, primary must be determined fairly)
- Sanderson v. Ohio Edison Co., 69 Ohio St.3d 582 (1994) (breach of duty to defend may render insurer liable for other damages)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (summary-judgment standard; initial burden on movant; then shift to non-movant)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (1977) (summary-judgment framework and burden shifting)
- Bank One, N.A. v. Swartz, 2004-Ohio-1986 (2004) (personal knowledge/Civ.R.56(E) requirements of affidavits)